State of Tennessee v. Bruce D. Mendenhall ( 2020 )

05/14/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 17, 2019
STATE OF TENNESSEE v. BRUCE D. MENDENHALL
Appeal from the Criminal Court for Wilson County
No. 07-0579 John D. Wootten, Jr., Judge
No. M2018-02089-CCA-R3-CD
The Defendant, Bruce D. Mendenhall, was convicted by a jury of first degree
premeditated murder and abuse of a corpse, for which he received sentences of life and
two years, respectively. His sentences were ordered to be served consecutively to one
another, as well as to two prior consecutive sentences from Davidson County of life
imprisonment for murder and thirty years for three counts of solicitation to commit
murder. On appeal, the Defendant challenges the following: (1) the trial court’s reliance
on the doctrine of collateral estoppel to deny his various motions to suppress certain
evidence, wherein he raised threshold constitutional issues; (2) the trial court’s denial of
his motion to exclude 404(b) evidence and the failure to redact his police statement
accordingly; (3) the trial court’s denial of his motion to continue based upon the State’s
late disclosure of surveillance footage from the truck stop; (4) the sufficiency of the
evidence supporting his convictions; and (5) the imposition of consecutive sentencing.
After a thorough review of the record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.
Shelley T. Gardner, District Public Defender; Kelly A. Skeen, Assistant Public Defender
(at trial and on appeal); and William K. (“Bill”) Cather, E. Marie Farley, and Lindsay N.
Graham (at trial), Assistant District Public Defenders, for the appellant, Bruce D.
Mendenhall.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Tom P. Thompson, Jr., District Attorney General; and Brian W. Fuller
and Jason L. Lawson, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL BACKGROUND
On the morning of June 6, 2007, Symantha Winters was found dead inside a trash
can at a Pilot truck stop in Lebanon, Tennessee. Later that same month, in the early
morning hours on June 26, 2007, another woman, Sara Hulbert, was found dead at the
Truck Stops of America station (“TA”) in Nashville. The Defendant, a truck driver, was
arrested on July 12, 2007, in connection with their deaths. He was later indicted in
Davidson County for the first degree premeditated murder of Ms. Hulbert and in Wilson
County for the first degree premeditated murder of Ms. Winters, along with abuse of Ms.
Winters’s corpse. See Tenn. Code Ann. §§ 39-13-202, -17-312. While the Defendant
was in custody, he was charged in Davidson County with five counts of solicitation to
commit first degree murder of individuals involved in these cases. The Defendant was
tried and convicted of three counts of solicitation to commit first degree murder, and this
court affirmed the Defendant’s convictions on appeal. See State v. Bruce D. Mendenhall,
No. M2010-01381-CCA-R3-CD, 2013 WL 360525 (Tenn. Crim. App. Jan. 30, 2013),
perm. app. denied (Tenn. June 11, 2013). The Defendant was also tried and convicted of
the first degree premeditated murder of Ms. Hulbert, and this court likewise affirmed that
conviction on appeal. See State v. Bruce D. Mendenhall, No. M2010-02080-CCA-R3-
CD, 2013 WL 430329 (Tenn. Crim. App. Feb. 4, 2013), perm. app. denied (Tenn. June
12, 2013). Following the conclusion of the two Davidson County cases, the Defendant
was tried in Wilson County for the murder of Ms. Winters, the victim in this case (“the
victim”).
1. Pretrial Matters
A. Notice of Alibi. On June 14, 2012, the Defendant gave notice of alibi, but no
specifics of the Defendant’s alibi were included in the notice. The Defendant again filed
a notice of an alibi on September 15, 2017. This time in the notice, the Defendant
claimed that he “was not in Lebanon, Tennessee on June 5, 2007, nor June 6, 2007, but
was en route from Goldsboro, North Carolina to Kalamazoo, Michigan, specifically via
Pioneer, Tennessee.”
B. Constitutionally-Based Suppression Issues. On June 29, 2012, the Defendant
filed a “Motion to Suppress Evidence Seized from [His] Truck,” arguing that “all the
evidence obtained as a result of the seizure of the [D]efendant and the search of his truck
by Metropolitan Nashville Police Department on July 12, 2007, . . . was obtained in
violation” of his constitutional rights and that suppression of the evidence was required.
Specifically, the Defendant contended that the investigative stop of his truck was not
supported by reasonable suspicion, that he was seized when the sergeant took his driver’s
license, and that his consent to search his truck was not knowingly and voluntarily given.
That same day, the Defendant filed a separate “Motion to Suppress [his] Statements to
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Police,” submitting that his statements “to law enforcement officers on July 12, 2007, . . .
were the product of hi[s] being unlawfully seized by the police and subsequent coercive
interrogations by the police.” In particular, the Defendant maintained that “all” of his
statements were fruit of his illegal detention that was lacking in reasonable suspicion; that
he was subjected to custodial interrogation without the benefit of Miranda warnings while
the sergeant searched his truck; that the “small talk” conversations the officers engaged in
with the Defendant while the Defendant was being transported following his arrest
“constituted the functional equivalent of interrogations without Miranda warnings”; and
that the Miranda warnings given at the police station were ineffective to cure the taint
created “by the prior unlawful interrogation or interrogations.”
On March 25, 2013, the Defendant filed a “Motion to Suppress or Exclude
Testimony of, and Recordings Allegedly Made by, Purported Jailhouse Informants.” The
Defendant submitted that “all of the alleged information and recordings provided to the
State by these purported jailhouse informants” were obtained in violation of his
constitutional rights. Specifically, the Defendant complained that he had already invoked
his right to counsel when the State engaged in “covert operations” by “sending these
inmates to act as its agents in trying to obtain incriminating information against” him.
The State, on April 29, 2013, filed a response to the Defendant’s motions, arguing
that these suppression issues involved the same facts relevant to the search and the
Defendant’s police statements that had been presented in the Davidson County
solicitation and murder cases. The State noted that the Davidson County trial court had
previously determined these issues to be without merit, and those decisions had been
affirmed by this court on appeal in two separate opinions. So, according to the State, the
“law of the case” doctrine barred the Defendant from relitigating the same issues that had
already been decided in a prior appeal of the same case or, alternatively, that the doctrine
of collateral estoppel applied because the issues had been previously determined in a
prior suit between the same parties.
The Defendant filed a written response on April 30, 2013, replying that the law of
the case doctrine did “not apply because this [was] not the same case as the two Davidson
County cases” and that collateral estoppel did “not apply because the judgments in those
cases [were] not final” given that applications for permission to appeal were still pending
before the Tennessee Supreme Court. The Defendant seemingly agreed that the precise
issues were the same as those raised in the previous two Davidson County cases. The
suppression issues as detailed by this court in its two previous opinions reflect that these
were indeed the same.
After hearing argument by both the parties at a hearing on April 30, 2013, the trial
court ruled that the Defendant was collaterally estopped from relitigating these threshold
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suppression issues because they had already been litigated in the Davidson County cases.1
In a written order that followed, the trial court first referenced the State’s argument “that
litigation of these issues [was] precluded under the doctrine of law of the case and/or
collateral estoppel.” The trial court then noted the following facts in rendering its
decision that “the State’s motion” seeking issue preclusion was “well taken”: “[t]hese
suppression issues were previously litigated in two cases against this defendant in the
Criminal Court for Davidson County”; “[t]he defendant was represented in those cases by
appointed counsel not affiliated with his appointed counsel in this case, and his counsel in
this case did not participate in the Davidson County cases”; “[t]he Davidson County court
ruled in favor of the State, declining to suppress the evidence and statements”; “[t]hose
cases were then tried to separate juries, and both trials resulted in convictions”; “[t]hose
convictions, including the suppression issues, have been affirmed by two separate panels
of the Court of Criminal Appeals”; and “on June 11, 2013 and June 12, 2013,
respectively, the Tennessee Supreme Court issued its rulings denying the [D]efendant’s
T[ennessee] R[ules of] A[ppellate] P[rocedure,] Rule 11 applications in both the
Davidson County cases,” rendering “the judgments in those cases . . . unquestionably
final.” Accordingly, the trial court determined that it would not conduct any additional
evidentiary hearings “on those same issues” and would rely “on the rulings that [were]
now part of the final judgments in the two Davidson County cases.” The case proceeded
to trial.
C. Evidentiary-Based Suppression Issues. Alternatively, the Defendant made
several evidentiary-based arguments in the event that the evidence seized during the
search of his truck and his various statements were determined to be constitutionally
obtained. On March 25, 2013, the Defendant filed a “Motion to Exclude Any and All
Evidence of Other Alleged Crimes or Bad Acts of the Defendant.” The Defendant
submitted that “any arguably relevant evidence of other alleged crimes or bad acts of the
[D]efendant should be excluded” under Tennessee Rules of Evidence 403 and 404.
Relative to Rule 403, the Defendant argued that “any and all evidence of other alleged
crimes or bad acts of the [D]efendant should be excluded . . . because its probative value,
if any, [was] substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury and waste of time.” Next, the Defendant contended, relying
on Rule 404(b), that the evidence should be excluded “because it [was] highly prejudicial
propensity evidence.” Finally, relative to Rule 404(a), the Defendant maintained that the
evidence should be excluded because it provided “evidence of the [D]efendant’s
character, and neither the character of the accused nor of the deceased [was] at issue in
this case.”
1
Although the recordings made by the jailhouse informant were not specifically referenced, the same
rationale regarding the initial threshold constitutional issues would apply to the Defendant’s motion to
suppress those recordings because that suppression issue was also previously determined in the two prior
Davidson County cases. The Defendant even acknowledges such in his later filings.
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Also, as noted above, the Defendant filed a “Motion to Suppress or Exclude
Testimony of, and Recordings Allegedly Made by, Purported Jailhouse Informants.”
After raising the constitutional issue therein, the Defendant asserted that “none of the
alleged information and recordings pertain[ed]” to his case and that, therefore, testimony
from the informants, as well as admission of the recordings, “would not provide any
[relevant] information” as defined by Tennessee Rules of Evidence 401 and 402. Next,
the Defendant maintained that, even if the evidence was relevant, it should be excluded
by Tennessee Rules of Evidence 403 and 404(b). Relative to Rule 403, the Defendant
submitted that the probative value of the evidence, “if any, [was] substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury
and waste of time.” Relative to Rule 404(b), the Defendant alleged that the evidence
“contain[ed] references to other alleged crimes or bad acts of the [D]efendant, which
[was] highly prejudicial propensity evidence and [had] no bearing on any material issue.”
Finally, the Defendant contended that any such evidence should be excluded under Rule
404(a) because it arguably “contain[ed] evidence of the Defendant’s character, and
neither the character of the accused nor of the deceased [was] at issue.”
Likewise, on March 25, 2013, the Defendant filed a “Motion for Pretrial Ruling
Excluding Defendant’s Videotaped Interview by Police on Evidentiary Grounds.” He
again relied on Tennessee Rules of Evidence 401, 402, 403, and 404(b), arguing that the
evidence was not relevant because it “contain[ed] only a brief discussion of the Pilot
truck stop in Lebanon, Tennessee, . . . the location where the body of the deceased in this
case was found”; that even if the recording did contain “some” relevant information, the
“extensive statements” by the Defendant during the interview “about other crimes and/or
bad acts in which he was allegedly involved to one extent or another, as well as
significant details about his actions in connection with a homicide in Davidson County, . .
. made up almost the entirety of the videotape, [and were] certainly not relevant” and
required exclusion; that even if “those portions of the recording” were determined to be
relevant, “the unfair prejudicial effect against the [D]efendant, the confusion of the issues
and misleading of the jury those statements would create would substantially outweigh
any probative value” of the statement; and finally, if “portions” of the recording were
admissible, the recording required redaction to only include statements “directly related
to the Wilson County homicide.”
On April 4, 2013, the State filed a “Brief of Law in Response to the Defendant’s
Motion to Exclude Evidence of Prior Bad Acts of the Defendant.” In the response, the
State outlined the specific items of evidence from the other trials that it sought to present
against the Defendant during this trial and for what purposes, other than propensity, it
sought to introduce the evidence.
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On October 2, 2017, the Defendant filed an extensive brief discussing prior bad
act evidence, specifically discussing the State’s seeking “to introduce evidence of both of
the Defendant’s convictions in Davidson County.” According to the Defendant, the
State’s “premise [was] that everything admitted as evidence in the Davidson County
cases [was] relevant and direct evidence of the offense in Wilson County.” The
Defendant proceeded to cite to an abundance of caselaw on the admission of prior bad act
evidence. The Defendant argued that the solicitation case had “no relevance to the
Wilson County case.” The Defendant commented that the solicitation convictions were
relevant and admissible to show motive in the Davidson County murder case, but not
here, “because the Defendant believed that the targets of the solicitations were conspiring
to have the Defendant convicted of the murder in Davidson County.” Even if deemed to
be relevant, the Defendant submitted that admitting evidence of the solicitations was
“marginally probative at best” because they were not “probative of any aspect of the
homicide” in Wilson County and they did not establish “motive, intent, identity, or even
guilty knowledge of the Wilson County event.” Moreover, admission of such evidence,
in the Defendant’s opinion, “would serve to confuse the jury as to the issues in the instant
case.”
As for the Davidson County murder case, the Defendant remarked that it was “so
similar to the act” for which he was on trial “the danger of convincing the jury that the
Defendant [was] guilty because of his propensity to commit the similar act more than
substantially outweigh[ed] its probative value.” The Defendant averred that its admission
“would serve to prevent the jury from hearing and individually considering the separate
and specific pieces of evidence, as well as lack of evidence, relevant in the instant
case[,]” thereby “relieving the State of its burden of proof in this specific act in Wilson
County.”
The Defendant further argued that admission of the prior convictions and alleged
murders was not “necessary to complete the story [or] to help the jury to understand the
background evidence” offered at trial and, therefore, amounted to propensity evidence.
The Defendant opined that background evidence “[was] not always appropriate . . . when
the evidence [was] not a part of the same criminal transaction” and that such was the case
here because “[t]he only background story [was] that the same man was charged for both
acts, three weeks apart in different locations.”
In addition, the Defendant maintained that the prior bad act evidence was not
admissible to prove his identity. According to the Defendant, his actions were not so
unique to be considered a modus operandi, there being “nothing distinctive in the Wilson
County homicide or in the Davidson County.” The Defendant surmised that “a body
found murdered at a truck stop [was] far from unique” but was “similar enough to
prejudice the jury into a decision based on other bad acts.” The Defendant also noted that
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the evidence in the Davidson County murder case “was substantial and could be easily
transferred to the instant case in order to convince a jury that [the Defendant] committed
the same act in Wilson County, thereby overwhelming the facts of the case.”
Relative to redaction of his police statement, the Defendant noted that the trial
court in the Davidson County solicitation case “admitted only a redacted version of the
[D]efendant’s statement to police in order to establish the motive for the solicitations, and
by extension, to provide contextual background to the jury.” According to the Defendant,
the trial court in that case redacted “all statements regarding the other murders the
Defendant may have committed, but did not exclude the entire statement as the defense
had requested, because the details of the statement which included [the Davidson County
murder] helped to explain the focus on the victims in the solicitation trial.” The
Defendant also commented that the trial court, prior to admission of the statement in the
solicitation case, “instructed the jury that it could only consider the Defendant’s
statement for the limited purpose of determining whether . . . it provide[d] a complete
story of this alleged crime that he’s on trial for.”
In conclusion of his argument, the Defendant stated the following:
The bad act evidence which the State seeks to have admitted in the
instant case lacks probative value for anything except propensity. It does
not prove identity in that any truck driver who travels through middle
Tennessee could fit the known facts of both murders. It does not prove
motive, guilty knowledge, or the absence of mistake. It is not the type of
evidence which would be properly admitted to challenge the veracity of the
Defendant. Additionally, the facts of the two homicides are not close
enough to show a common scheme or plan, or modus operandi. The
evidence of bad acts which the State seeks to introduce should not be
admitted because, according to Tennessee State case law, its probative
value is substantially outweighed by the danger of unfair prejudice to the
Defendant.
The trial court held an extensive hearing on these motions on February 1, 2018.
At the hearing, both parties made arguments, and the State presented testimony from a
Wilson County detective who investigated the victim’s murder, a Davidson County
detective who investigated Ms. Hulbert’s murder, and the tool mark and firearms
examiner who examined the Defendant’s rifle and the bullets removed from the victim’s
and Ms. Hulbert’s heads.2
2
In an effort to avoid repetition, we will not detail the testimony from these three witnesses here. A
summation of their testimony at trial can be found below.
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In rendering its ruling, the trial court noted that it was holding a hearing outside of
the jury’s presence as required by Rule 404(b). The trial court also found that the
evidence of other crimes and bad acts by the Defendant was established by clear and
convincing evidence, noting that “all of those Nashville instances” were “found by a jury
beyond a reasonable doubt.”
The trial court ruled that all of the evidence was admissible for other purposes.
Specifically, the trial court found that the evidence was first admissible to provide
“context” and “complete the story.” The trial court noted that proof of the victim’s
murder was not necessary in the Davidson County murder case because “there was no
need for it” given that “[t]he bullet matched the .22.” However, in this case, the trial
court found that evidence of Ms. Hulbert’s murder was necessary, reasoning, “I find
specifically that in order to complete the story, the timeline, to be able to understand the
connection between the bullet recovered from the victim in this case versus the bullet
from Ms. Hulbert in Nashville, it would be nonsensical if I didn’t allow that in.”
Moreover, the trial court stated that the Defendant’s police statement provided “part of
the overall picture here, complete story, if you will.”
Relative to redaction of the Defendant’s statement to exclude references to the
other murders, the trial court observed, “It would likewise be nonsensical to redact the
statement of the [D]efendant that talks about these individuals involved in all these
killings that just seem to show up inexplicably at various truck stops and then people die,
and he blames directly two or three individuals.” The trial court noted that the Defendant
had also given notice of alibi. The trial court determined, “So in order to put all of that in
context, once again, that’s the complete story of the case.”
Regarding admission of the recordings of the conversations between a jailhouse
informant and the Defendant, the trial court concluded that they were also admissible to
complete the story. The trial court reasoned that the recordings put “in context all of the
statements made” about the victims and the victims’ vocation.
The trial court next determined that the evidence was admissible to establish the
Defendant’s identity. The trial court stated that for example, the evidence showed that
the Defendant’s weapon was used “in both places[.]” The trial court further stated its
reliance on the multitude of cases cited by the State in support of admission of the
evidence to prove identity.
Moreover, the trial court concluded that the evidence was admissible to provide
the Defendant’s motive and intent. The trial court cited to the Defendant’s statement to
his employer that he “just shoots” “lot lizards” and to the sign found in the Defendant’s
truck, “4-sex ok.” The trial court also remarked that the sign found in the Defendant’s
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truck was proper to show context, to complete the story, and to establish identity because
“[a]ll of those things overlap in this case.”
Finally, the trial court determined that proving a “common scheme or plan” was
“equally applicable” to support admission of the evidence for other purposes. The trial
court observed the similarity between the two murders: “You’ve got two prostitutes
found in a location toward the rear of truck stops essentially nude, shot in the head with a
.22.”
As for its final consideration, the trial court opined that the probative value of the
evidence was “not outweighed by the danger of unfair prejudice.” In addition, the trial
court stated that it would provide instructions the jury on how to properly consider the
evidence.
D. Discovery and Continuance. The Defendant filed both a “Motion for
Discovery and Inspection” and a “Motion to Compel Production of Exculpatory
Evidence” in February 2012. At the pretrial motion hearing on February 1, 2018, defense
counsel stated, “I just learned today that there are video recordings from the Pilot truck
stop on the dates in question, and I don’t have those. [The State is] going to try and get
those to me.” The prosecutor stated that the 2007 recordings were on VHS tapes and that
it hoped to “find a way” to get those transferred onto DVDs. It was averred that the
prosecutor had not been aware of the recordings previously because they had been in the
possession of the Wilson County lead detective. On February 6, 2018, the Defendant
filed a motion to compel the State to turn over these recordings. In the motion, the
Defendant averred that the detective, in the days following discovery of the victim’s
body, acquired surveillance footage from the Pilot truck stop covering the relevant dates.
According to the Defendant, the surveillance footage contained “potentially exculpatory
evidence for the Defendant,” and the defense had “repeatedly requested” the recordings
from the State. The Defendant surmised that the detective’s failure “to wait until this late
date to advise counsel that these recordings were in his possession since June 2007,”
amounted to “gross negligence.”
Three days later, the Defendant filed his fourth motion to continue the case,
contending that more time was needed to prepare his defense in light of this potentially
exculpatory evidence withheld in discovery. The Defendant also stated that the trial court
“overruled itself on several issues during the” motion hearing on February 1, 2018, i.e.,
that the trial court decided it was no longer proceeding under the law of the case doctrine
as shown by its admission of the Defendant’s police statement in its entirety, which was
contrary to the Davidson County trial judge’s ruling redacting the statement. The
Defendant averred that he “require[d] additional time to prepare [his] defense against
allegations of bad acts in Nashville and in several other states.”
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A pretrial motion hearing took place on February 13, 2018. Defense counsel3
stated that he was in possession of the recordings, receiving them the same day he had
filed the motion to compel. Defense counsel averred that he had “found a program”
allowing the defense to “read” the recordings, but he “estimated it would take [thirty-six]
to [forty] hours to read” those. Defense counsel indicated that there were approximately
six DVDs, each running about one and one-half hours long “at a super fast pace.”
Defense counsel explained,
I did manage to manipulate it to where I could slow it down and I
cleaned it up as far as fuzz and stuff, and you can view them, but in order to
view an hour and a half DVD, it’s going to take six to eight hours because
of the speed when you slow it down from where it is. So it’s going to take
a substantial amount of time to go through all that.
The prosecutor confirmed that the surveillance footage covered June 4th through
the 6th of 2007, that there were “multiple camera angles” depicted on the recordings, and
that the defense was unable “to do anything about the speed.” The prosecutor also
explained the circumstances surrounding the late discovery of the recordings—that “it did
take [the detective] a while to watch [the recordings] sufficiently”; that the detective
“put” the recordings “into evidence” in January 2009 once he finished; that the detective
“did provide [the prosecutor] with a property . . . receipt from that time, but anything else
in the file that [the prosecutor] had” did not reflect possession of the recordings; and that
the prosecutor did not know of the recordings until speaking with the detective in
preparation for trial.
Nonetheless, the prosecutor observed “that these videos [were] primarily inside
the Pilot” and that “[t]here [was] a portion” of the recordings showing “outside,” but that
those did not depict the location where the victim’s body was found. The prosecutor
indicated that the detective had reviewed the recordings in their entirety and that neither
the Defendant nor the victim could be seen in any of the footage. Defense counsel then
maintained that he needed to review the “videos in order to determine who else was on
the property.”
Defense counsel noted the “other issue” it had included in the motion to continue
about the trial court’s changing its previous ruling regarding the law of the case doctrine
and that the Defendant’s entire police statement was now admissible. The trial court
replied that it was “troubled” by the Defendant’s assertion because it had not changed its
ruling that the law of the case did “not apply anymore.” The trial court noted that its
ruling concerning the law of the case dealt with the threshold constitutional issues of
3
Two of the Defendant’s lawyers were involved in this discussion. We will refer to them collectively as
defense counsel.
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suppression but did not foreclose evidentiary-based issues, such as Rule 404(b) evidence.
The trial court stated that at the February 1, 2018 hearing, it made “specific rulings with
regard to the State’s notice of prior bad acts, crimes, those types of things under 404(b)
that would be admissible in this case.” While acknowledging that the Davidson County
trial court judge in the murder case redacted the Defendant’s police statement to remove
the Defendant’s references to the other killings, the trial court explained that it did not
disagree with the trial court’s ruling in that case but that “this case st[ood] on its own
facts,” which were “completely different from all the facts down in Davidson County.”
The trial court observed that for example, in the Davidson County murder case, the
Defendant was found returning to the location where the victim’s body was found, and
the Defendant admitted to helping pose the victim. The trial court continued, “I just
don’t believe there’s any way to cut and splice and redact and those kinds of things to
even come close to explaining or presenting a case here unless you use the man’s
statement.” The trial court again noted that it would instruct the jury on how to properly
consider the evidence.
The trial court then asked defense counsel, “How would you have me redact this
interview? Have you made any suggestions about that, assuming I revisit this?” Defense
counsel stated that he had “a list of suggestions” that had “to do with the out of state”
killings mentioned by the Defendant in the statement. The trial court said that it
“doubt[ed] seriously” that it would reverse its decision because the statement had “to
flow” to “make any sense” to the jury. The trial court stated that defense counsel could
submit its redactions and that the trial court would “relook at that” and possibly “consider
redacting . . . the out-of-state stuff.” The trial court noted that if it decided to allow the
redaction, there would need to be “some time to cut the tape” and have the transcript, as
redacted, prepared.
Discussion then returned to whether the case should be continued. Defense
counsel stated that in addition to the previously cited reasons, he also wanted to allow the
court reporter time to prepare the transcripts from the various pretrial hearings. When
asked why the transcripts were needed, defense counsel replied, “Because there were
statements made by the witnesses during those hearings that had not been made before,”
specifically from the tool mark and firearms expert. The trial court again inquired why
the transcript was needed when defense counsel could recite “what the problems and
inconsistencies” were in the witness’s testimony. Defense counsel responded that the
transcript was needed in the event the tool mark and firearms expert testified that he did
not recall making the statements. More discussion ensued about the time it would take to
get a transcript prepared, including whether only a transcript of the expert’s testimony
was necessary.
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Upon inquiry from the trial court, the State informed the trial court that it had
approximately fifteen to eighteen witnesses subpoenaed for trial, that at least five to six
of those witnesses were coming from out-of-state, and that changes in accommodations
would need to be made if a continuance was granted. The prosecutor expressed his
opinion that he did not want the trial continued. The trial court observed that this case
was “old, old, old” and that it had been “set now for months.” The trial court asked the
prosecutor if the Tennessee Bureau of Investigation (“TBI”) “ha[d] the ability to do
something with these tapes,” and the prosecutor said, “Not anymore than what they’ve
already done . . . . I mean, the time is what it is.” The trial court noted that a decision on
whether to the continue the case was within its “sound discretion” and denied the
Defendant’s motion. The State then made the tool mark and firearms expert’s “notes on
the rifle and examination,” wherein the expert discussed the “ring of rust, the cleaning of
the overmarking, [and] all those sort of things,” an exhibit to the hearing, and the
prosecutor averred that the expert’s report was provided to the defense in April of 2013.
No other discussion on redaction of the Defendant’s police statement or the
preparation of the expert’s testimony is apparent from the record. However, there is an
exhibit in the record that contains solely the expert’s testimony at the February 1, 2018
hearing.
2. Trial
The Defendant’s trial in this case spanned four days, beginning on February 27,
2018, and concluding on March 2, 2018. Following opening arguments and before the
presentation of any proof, the trial court instructed the jury regarding how it was to
consider potential evidence “of other wrongs or acts” committed by the Defendant,
including “crimes in Nashville”:
[Y]ou may not consider such evidence if it comes out to provide [the
Defendant’s] disposition to commit the crime on trial here in Wilson
County. I’m going to allow this proof as it unfolds for a variety of other
purposes. For example, it could be to complete the story of the crime here
in Wilson County, because it’s logically related or connected. . . . That’s
one reason.
Number two, the [D]efendant’s identity, that is, this evidence could
be considered by you if it tends to establish the [D]efendant’s identity as
the person who committed these crimes here in Wilson County. It could
also be admitted, and I’m going to allow certain things. And I’m going to
probably, you’ll hear this or parts of this instruction as we unfold this case,
to show a common scheme, scheme or plan to establish that the
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[D]efendant engaged in a common scheme or plan, vis-à-vis Nashville or to
here, motive and there could be other reasons as well.
The trial court concluded the instruction by telling the jury that this instruction could
possibly “be given multiple times” during the trial, as well as being given “at the end of
this case.” The trial court explained that the instruction “may be more complete or it may
be edited some” on those occasions. The case proceeded.
Charles Scruggs, the “outside maintenance person” for the Pilot truck stop in
Lebanon, testified that he was collecting trash from the outside garbage cans of the
station on the morning of June 6, 2007. Just before 8:00 a.m., Mr. Scruggs discovered
the victim’s body in a trash can towards the rear left corner of the parking lot. He
reported the discovery to his general manager, and the police were called to the scene,
arriving approximately five to ten minutes later, in Mr. Scruggs’s estimation.
Lebanon Police Department (“LPD”) Officer Cornelius Harris responded to the
scene and observed the victim’s body in the trash can “that was in the back fence area” of
the truck stop. Officer Harris estimated that the fence was about ten to fifteen feet from
the parking area and that the garbage can was about five or six feet4 from the parking
area. The parking stall in front of the trash can where the victim was found was empty
upon Officer Harris’s arrival; a truck was parked on both sides of the empty parking stall.
Officer Harris sketched the parking lot, which depicted all of the trucks parked in the area
with their respective tag numbers.
LPD Detective Kirk Whitefield testified that he was the lead detective in the
victim’s murder. Detective Whitefield spoke with the driver parked to the right of the
empty stall, Mr. Todd Crafts. Mr. Crafts told Detective Whitefield that he had stayed the
night at the truck stop. According to Mr. Crafts, when he awoke on the morning of June
6, 2007, between 6:30 and 6:45 a.m., the garbage can, which had previously been visible
to him from his parking stall, could no longer be seen. Detective Whitefield also talked
with the driver parked to the left of the empty stall, Mr. Joseph Burnett. Mr. Burnett said
that he arrived at the truck stop that morning about 7:30 or 7:45 a.m. before going inside
the station. He did not notice the garbage can upon his arrival.
The driver who had been parked in the stall directly in front of the trash can, Mr.
Greg Pesnell, had already moved his truck before police arrived. At that time, his truck
was parked “closer up” to the gas pumps of the station. Mr. Burnett had informed
Detective Whitefield that he had seen Mr. Pesnell’s “going in and out of the passenger
side of his vehicle” when Mr. Pesnell was parked in the stall, a behavior Mr. Burnett
found “odd.”
4
This estimate marginally varied during other testimony.
- 13 -
Mr. Pesnell was “cooperative” and was interviewed by LPD Detective Eddie
Brown. During the interview, Mr. Pesnell explained that he was using the passenger-side
door of his truck because when he locked the driver-side door, it could not be unlocked.
The truck’s broken locking mechanism was confirmed by Detective Brown.
In addition, Mr. Pesnell’s truck was searched after he gave consent. The interior
cab of Mr. Pesnell’s truck was searched twice; the second time the truck was searched
included the use of “an alternative light source to see” if there was any blood inside the
truck. No blood was found. During the search of the outside of the truck, the officers
found “three drops” of what appeared to be blood on the blue tarp covering the rear of
Mr. Pesnell’s trailer. Detective Whitefield said that the “little drops appeared to . . . be
like cast off, almost like what was on [the victim’s] back.” Detective Whitefield also
noted that the victim was placed in the trash can “with her head leaning toward the truck,
toward the front.” Two pieces of the tarp were cut out and preserved. There was also
“one spot” on the bumper of Mr. Pesnell’s truck that was swabbed.
Detective Brown stated that after the samples of the tarp were collected, they
opened up “the back of the trailer” and photographed “that area.” Detective Brown did
not recall “search[ing] the whole entire trailer”; however, he indicated that they did not
observe anything suspicious inside the trailer once they opened it. Detective Whitefield
concluded that there was nothing from the search of the truck or the interview of Mr.
Pesnell “that suggested he had any involvement” in the victim’s murder. Mr. Pesnell was
not taken into custody. No fingerprints or DNA sample was obtained from Mr. Pesnell.
Officer Harris obtained waivers for consent to search from several other drivers
parked in the immediate vicinity of the trash can, which included waivers from both Mr.
Burnett and Mr. Crafts. According to Officer Harris, these searches did not reveal any
evidence linking any of those drivers to the victim’s murder. Detective Whitefield also
asserted that from his conversations with the other truck drivers, he had no “reason to
suspect that they were involved[.]”
LPD Officer Chris Melvin was involved in processing the scene. Officer Melvin
said that the victim’s “body was feet first in the trash can”; that her “head was hanging
over the rim of the trash can”; that there were “items of garbage” on her back, including
“two plastic, grocery-type bags” and a Taco Bell “food box”; that inside one of the plastic
grocery bags were three beer cans, a pack of cigarettes, “two empty cigarette packs, and
other paper-type trash”; that inside the other bag were “a couple of boxes” in addition to
the Taco Bell box; that there were “reddish-brown droplets on top of her back,” which
appeared to be blood; and that these droplets “appeared to have been dropped straight
down onto the surface from above the victim.” According to Officer Harris, the items of
trash were “just [lying] on top” of the victim’s back; they were “not half shoved down or
anything like that[.]”
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Detective Whitefield also described his observations of the victim’s body, stating
that the nude victim “appeared to be positioned” in the garbage can because “she was set
straight down in, feet first, almost like placed there, leaned forward to be found.”
Detective Whitefield further noticed an injury to the victim’s forehead and possible blood
“smeared on [the victim’s] face.”
Officer Harris was involved in removing the victim from the garbage can. Before
removing her, they “constructed a plastic tent around the trash can” and then “use[d]
super glue fuming on the body to try to develop any type of latent prints that were left
behind.” They were unable to observe any prints. They then removed the victim’s nude
body from the trash can, and Officer Harris saw “a large amount of blood” on the
victim’s head. Detective Whitefield moved the victim’s hair, which “was matted in
blood,” and observed that she had suffered a gunshot wound “through the top part of
[her] right ear.”
The items inside the trash can, as well as the barrel itself, were taken into
evidence. Officer Harris also collected from the empty parking stall “a cigarette butt, a
piece of rolled wire, and a crushed can,” as well as “[a] sample of vomit” from the “back
in the grassy area.” There were other items collected from the area, but Officer Harris
could not recall specifically what they were. The victim’s clothing was not located at the
scene.
Detective Whitefield testified that he “recovered VHS tapes, security surveillance
tapes from the Pilot” taken on June 4th through 6th of 2007. Detective Whitefield
averred that over an extensive period of time following the Defendant’s apprehension, he
watched the surveillance tapes from June 5th and 6th, which were “basically time lapse
tapes with about [fourteen] cameras on them.” According to Detective Whitefield, these
tapes were “constantly flashing,” the screen changing “more than every second.”
Detective Whitefield explained, “At the time, we had a VCR where you could slow the
play process down, but it still changes camera to camera to camera. There wasn’t a way
to put it on one camera and just watch that camera. It would cycle through all the
cameras.”
An exhibit was entered reflecting the fourteen different camera angles from the
surveillance footage. Detective Whitefield described the camera angles:
Twelve are from inside the business, including the driver’s lounge,
the office, maybe, it even looks like a cooking area. Two are from outside.
One reflects the front gas pumps that would be in the front of the store,
closest to 231 South. And the other is kind of the, I know it’s an outside,
looks like a loading dock[.]”
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According to Detective Whitefield, there was no “camera angle back in the area where
the body [was] found[.]” Detective Whitefield indicated that he did not see the
Defendant or the victim on the surveillance tapes, although he clarified that it was
“possible that they just didn’t come in the store.”
Detective Whitefield confirmed that the victim was later identified by her
fingerprints. He affirmed that the victim had an arrest record, “mainly” her being
arrested multiple times in Davidson County for prostitution. When asked why the
victim’s arrest record was relevant to his investigation, Detective Whitefield said,
Due to the area she was found, around a truck stop, transient in
nature like that. With her being a prostitute that, that kind of opens it up to
possible, [sic] with her being from Nashville, also, I thought that she might
have been picked up in Nashville by someone and then that’s how she
ended up in Lebanon.
Detective Whitefield was able to determine that the victim was last seen alive the
previous day on June 5, 2007, when she had been involved in a traffic stop around 2:00
p.m. Detective Whitefield spoke with the officer who conducted the traffic stop; the
victim was a passenger in the vehicle. Detective Whitefield also spoke with the driver of
that car, who told him “that [the victim] was seen walking down the street and got into a
van.”
Dr. David Zimmerman reviewed the victim’s autopsy report. The autopsy
established that the victim died from a gunshot wound to the right side of her head and
that the manner of death was homicide. According to Dr. Zimmerman, there was no soot
or stippling on the victim’s head. A bullet and two fragments were recovered from the
victim’s head during autopsy. A “sexual assault kit” was also collected. The toxicology
report showed the presence of cocaine in the victim’s blood.
TBI Agent Steve Scott was qualified by the trial court as an expert in tool mark
and firearms comparison. He first examined the bullet and bullet fragments from the
victim’s head in isolation. Upon examining this bullet and fragments, he was able to
determine that the bullet was .22 caliber, but he was unable to find “any marks of value
for comparison due to [the bullet’s] mutilated condition.”
Several weeks later, Detective Whitefield was contacted by a Metro Nashville
Police Department (“MNPD”) detective who was investigating “a homicide that seemed
very similar in nature.” Detective Whitefield conveyed that the Nashville victim, Sara
Hulbert, was found twenty days later on June 26, 2007, at a TA truck stop about thirty
miles away from the Lebanon Pilot. Detective Whitefield explained that Ms. Hulbert was
found nude; her clothes were not found at the scene; she was a prostitute; “[t]hey
- 16 -
believed she had been posed”; and “she had a small caliber gunshot wound to the head.”
Detective Whitefield compared a photograph of Ms. Hulbert’s body as it was found at the
crime scene with his recollection of how the victim was found, and he found the crime
scenes similar in that Ms. Hulbert “had blood on her face that was smeared” and that
“there were a couple of drops of blood” on her face that “looked like [they] had [been]
dropped down . . . from above.” Detective Whitefield also described the manner in
which Ms. Hulbert was posed: “She was [lying] on her back, with the bottoms of her feet
put together and pushed forward” and her knees “were spread out to the side.” The two
police departments thereafter began to coordinate their investigations.
MNPD Sergeant Detective Pat Postiglione testified that he was involved in the
investigation of Ms. Hulbert’s murder. Sergeant Postiglione noted that Ms. Hulbert’s
“body was positioned” intentionally “in a display-type condition.” Sergeant Postiglione
testified that shortly after discovering Ms. Hulbert’s body, he learned about the victim’s
murder in Lebanon and the similarities between the two cases. Sergeant Postiglione
stated that after speaking with Detective Whitefield about the Wilson County murder, he
notified the Federal Bureau of Investigation that they were “dealing with a potential serial
killer.” According to Sergeant Postiglione, it would “be neglectful” police work to fail to
note the similarities between the two murders:
We had two women who were killed. Both women were prostitutes.
Both women were addicted to drugs. Both women hung out at truck stops.
Both women were shot with a small caliber weapon. In my opinion, both
women were displayed, and the time frame—there was I think a [twenty-
one] day or so time frame between the two killings.
MNPD Detective Lee Freeman was also involved with the investigation into Ms.
Hulbert’s murder, and he had been informed about the victim’s murder and the
similarities between to the two cases. Detective Freeman provided his description of how
Ms. Hulbert “was laid out”:
She was flat on her back with her arms down by her sides, palms up.
Her feet were nearly touching but pushed up so that her knees were spread
out so that she was basically exposed to anybody that could be seeing her.
Her face was covered in blood so—but there wasn’t anything—and it also
had a very distinct line around her neck where it just appeared that the
blood had stopped for some reason. . . . It looked like something had been
placed over her head to cause it to smear like that.
Sergeant Postiglione and Detective Freeman testified that they obtained
surveillance footage from the TA truck stop, as well as from other businesses in the area
of Ms. Hulbert’s murder. They eventually were able to develop the Defendant’s truck as
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a suspect vehicle because the Defendant’s yellow tractor-trailer had been seen arriving at
the truck stop during the time in question and leaving sixteen minutes later. Although
unable to determine the exact location where the truck stopped in the parking lot, they
observed the truck proceed to “the back side of the truck stop.” According to Sergeant
Postiglione, “there were no fuel tickets or food tickets to back up that particular truck.”
The surveillance footage from the TA was played for the jury.
Following Ms. Hulbert’s murder, a .22 caliber bullet was removed from her head
during autopsy. Agent Scott was asked to compare the bullet from Ms. Hulbert with the
bullet and fragments recovered from the victim’s head. When Agent Scott placed the two
bullets under the microscope, he “realized that his first report was incorrect” because the
marks on the bullet from the victim that Agent Scott previously thought were due to
mutilation “were now of value,” actually matching the individual markings on the bullet
from the Nashville murder. He was able to conclusively state that because the bullets
bore the same markings, they “had been fired through the barrel of the same firearm.”
On July 12, 2007, Sergeant Postiglione asked Detective Freeman to return to the
TA to review fuel tickets from the day of Ms. Hulbert’s murder and make certain that
they had not missed anything. Around 10:00 or 10:30 that morning, Sergeant Postiglione
was on his way to join Detective Freeman at the TA when he saw a yellow tractor-trailer
that looked similar to the suspect vehicle. Sergeant Postiglione followed the truck in his
unmarked vehicle. Eventually, the truck pulled in to the TA parking lot and parked.
Sergeant Postiglione radioed Detective Freeman to let him know that he had spotted a
truck similar to the one from the surveillance video and that he was going to approach the
vehicle and speak to the driver.
Sergeant Postiglione testified that as he approached the truck, he noticed that the
curtains were pulled closed and that the engine was running. Sergeant Postiglione
knocked on the door and waited for a response but got none. Sergeant Postiglione
knocked a second time, and the Defendant opened the curtains. Sergeant Postiglione
testified that with his badge in hand, he informed the Defendant that he was police and
asked for the Defendant to step out of the truck and speak to him. According to Sergeant
Postiglione, the Defendant agreed, and the Defendant opened the door and “jumped
down”; the Defendant’s shirt was unbuttoned, and he had no shoes on his feet. Sergeant
Postiglione said that the Defendant was stretching as if he had just woken up from
sleeping.
The two men began to engage in “general conversation.” Sergeant Postiglione
informed the Defendant that they “were looking for a vehicle that was similar in nature”
to the Defendant’s truck, to which the Defendant responded that “there [were] a thousand
vehicles out there like” his. At some point, Sergeant Postiglione asked the Defendant for
his identification, and the Defendant gave Sergeant Postiglione his driver’s license.
- 18 -
Sergeant Postiglione testified that as he spoke with the Defendant, he noticed several
drops of what “appeared to be blood or [a] blood-like substance” on the driver-side door.
While Sergeant Postiglione was speaking with the Defendant, Detective Freeman
arrived and approached the two. The Defendant was asked if he would consent to give a
DNA sample, and the Defendant agreed. Detective Freeman obtained a kit and consent
form from his vehicle. Detective Freeman reviewed the form with the Defendant, had
the Defendant sign the form, and took the sample.
Sergeant Postiglione then asked the Defendant if he could look inside the
Defendant’s truck. The Defendant asked if Sergeant Postiglione “was going to tear the
vehicle up.” Sergeant Postiglione told the Defendant that he would not, so the Defendant
gave permission. Detective Freeman then retrieved a consent to search form from his
vehicle, and the Defendant signed the form. Sergeant Postiglione asked the Defendant “if
there was a weapon in the truck,” and “[h]e said there was not.”
Sergeant Postiglione testified that once inside the truck, he noticed a roll of “black
electrical tape” and a pocket knife between the driver’s seat and passenger’s seat.
Sergeant Postiglione then went into “the sleeper compartment” and sat down on the
mattress. Once there, Sergeant Postiglione noticed a trash bag between the driver’s seat
and the mattress. When he opened the bag, he “saw a lot of what appeared to be fresh,
wet blood, numerous napkins, [and] ladies clothing.” Sergeant Postiglione testified that
he asked the Defendant if he could explain “the blood inside the bag,” and the Defendant
told Sergeant Postiglione that he had “cut his left leg getting in and out of the truck and
that was the reason for the blood on the napkins in the bag.” Sergeant Postiglione asked
the Defendant to show him the cut. The Defendant “pulled up his pant leg,” but “there
was no cut, no scab, no scar there.” Sergeant Postiglione also indicated that he found a
pair of black shoes on top of a blanket inside the truck and that upon inspection, “the
print on the bottom of the shoes” looked similar to the shoe print found at the Nashville
crime scene. Detective Freeman confirmed Sergeant Postiglione’s suspicion regarding
the shoes. Sergeant Postiglione said that he “backed off” further searching of the truck
when he “found the blood.”
Sergeant Postiglione testified that he then asked the Defendant if this was the truck
they had “been looking for” but that the Defendant did not respond. Sergeant Postiglione
asked the question again if this was “the right truck,” and the Defendant “just kind of
shrugged his shoulders and said, ‘if you say it is.’” Sergeant Postiglione presented “a
follow-up question” by asking if the Defendant was “the person [they had] been looking
for.” The Defendant “just did the same thing, he just kind of stared at [Sergeant
Postiglione] for a second.” When asked again, the Defendant said, “If you say so.”
Sergeant Postiglione once again asked the Defendant if there was a weapon in the truck,
- 19 -
and the Defendant told Sergeant Postiglione this time that there was a .22 caliber rifle in
the truck.
Detective Freeman placed the Defendant under arrest. Sergeant Postiglione
waited with the Defendant “for a patrol car to come to scene” in order to transport the
Defendant. Sergeant Postiglione testified that “it was a very hot day” and that the
Defendant said he was diabetic and needed medical attention. The Defendant sat in the
front seat of Sergeant’s Postiglione’s car with the air conditioning running while waiting
on the patrol car.
When the patrol car arrived, the Defendant was taken to the hospital to be
evaluated. A short time later, the Defendant was released from the hospital and taken to
the “homicide office” in the police station. According to Sergeant Postiglione, while they
were in the car together, the Defendant mentioned that “he was pissed off at Ritchie and
David.” Because Sergeant Postiglione did not know what the Defendant was talking
about, he asked the Defendant why he was angry. The Defendant replied because “they
did all the killings.” Sergeant Postiglione inquired if the Defendant would be willing to
discuss it more when they arrived “downtown,” and the Defendant said that he would.
Once there, the Defendant agreed to give a formal statement.
In the interim, Detective Whitefield had been notified by the MNPD that they had
the Defendant in custody. Detective Whitefield proceeded to Nashville, where he
observed the interview conducted by Sergeant Postiglione and Detective Freeman.
During the interview, the Defendant first implicated Richard “Ritchie” Kiem and David
Powell in the murders, and towards the end of the interview, the Defendant also said that
Terry Sanders was involved. The Defendant appeared calm in the recording, which was
played for the jury in its entirety. Sergeant Postiglione opined that although the
Defendant had been taken to the hospital for treatment related to his diabetes, the
Defendant did not “seem off at all in the video.”
In his statement, the Defendant described the different locations where Mr. Kiem
and Mr. Powell would “just show up.” Relative to the murder of Ms. Hulbert in
Nashville, the Defendant claimed that he was at a Pilot truck stop in Nashville getting gas
when he was approached by these two men. The Defendant claimed that one of the men
got in his truck and that the other followed him to the TA. The Defendant explained that
once at the TA, he left his truck to buy a sandwich and that when he returned, he found
Ms. Hulbert’s naked body inside the truck “sprawled out in the back” with “blood
everywhere.” The Defendant also described that Ms. Hulbert had a plastic bag taped over
her head with black “electrician’s tape,” which was the type of tape the Defendant kept in
his truck. According to the Defendant, the men “were laughing about” having had sex
with Ms. Hulbert. The Defendant told detectives that he had a .22 caliber rifle in his
- 20 -
truck and that he believed Ms. Hulbert was shot with his rifle “since they’ve [done] it
before” and because he did not see either of them with a weapon before he left his truck.
The Defendant claimed that Mr. Powell and Mr. Kiem took Ms. Hulbert’s clothes
and personal effects, told him that it was his problem and not theirs, and left. The
Defendant told the detectives that he “proceeded to clean the mess up” and that he
“dumped” the victim’s body behind the truck trailers “in plain view.” The Defendant
said that he left the victim where she was, and positioned in such a manner, in order for
someone to find her.
The Defendant verified with Sergeant Postiglione his claim that the last time he
had been in Nashville was May 2007. However, if Ms. Hulbert’s killing occurred later
than May, he would “have to acknowledge” that he was in Nashville at the time. The
Defendant averred that his “log books” would indicate his various locations.
The Defendant went on to claim that Mr. Kiem and Mr. Powell did “it all the
time.” The Defendant asserted that the men met him “everywhere,” but he did not know
how they knew his location. When asked how he knew Mr. Kiem and Mr. Powell, he
explained that he knew them from when he lived in Southern Illinois. The Defendant
indicated that Mr. Kiem’s mother, Lori Young, rented a home from him “until [he] found
out she was a whore. And [he] spent a year trying to get her out of [his] house . . . and
couldn’t do it until she beat on [his] . . . [fifteen]-year-old daughter.”
Ultimately, the Defendant asserted that Mr. Kiem and Mr. Powell murdered seven
women it total. He was asked to describe the murders in reverse chronological order.
The Defendant began by detailing the evening just before his arrest when Mr. Kiem and
Mr. Powell met him in Indianapolis, Indiana. He claimed that “the same thing” happened
at the Flying J truck stop off Interstate 465. He went in to the truck stop to eat around
8:00 p.m. and returned to the two men sitting in his truck. There was a nude “dead girl”
with a bag over her head and “blood all over the place.” It appeared to the Defendant that
she had been shot in the head. This time the Defendant refused orders to dispose of the
body. He maintained that the men took her with them, but only did so after threatening
the Defendant by shooting at him.
Next, the Defendant described an incident in Birmingham, Alabama, where the
two men again located him at a Pilot truck stop. The Defendant went inside and came
back to find the men in his truck. The Defendant thought it was odd because the men
claimed they were “not going to do nothing.” After the men left, the Defendant noticed
that his rifle was missing, so he “suspect[ed] something happened.” The Defendant
maintained that his rifle was somehow later returned to him.
- 21 -
The Defendant was then specifically asked if he recalled this occurring in any
areas around Nashville, and he said no. The Defendant then indicated, without
prompting, that he had stopped at the Pilot truck stop in Lebanon “every now and then.”
Suddenly, the Defendant recalled the two men appearing at the Pilot truck stop in
Lebanon “[s]everal weeks” prior. He said that he saw them before going inside the
station to play video games and that they were gone when he came outside. Initially, he
was going to go inside and get something to eat, but he lost his appetite after seeing the
two men. The Defendant said it was “[p]ossible” something happened there because he
noticed blood inside his truck. He admitted that he cleaned up the blood, although he
claimed that he never saw a body on this occasion. The Defendant could not explain how
the men were able to get inside his truck.
The Defendant then referenced an event in Atlanta, Georgia, stating that it
occurred sometime before the Lebanon incident. The Defendant asserted that two men
got inside his truck in Louisville, Kentucky, and that they rode with him to Atlanta.
When the Defendant told them they could not ride with him, “they cracked [his] shin”
with his rifle and said, “[W]e’ll take care of your two daughters then.” While at a Pilot
truck stop on the “east side” of Atlanta, the two men left with the Defendant’s rifle and
came “back later.” They possibly could have taken his black electrical tape with them,
but he could not remember for certain. He indicated that he had two rolls in his truck, but
at some point, one went missing. The Defendant was unsure if anything happened in
Atlanta.
When the Defendant was asked if there was “anything else,” he said that this
happened for the first time in Chicago, Illinois, “well before” the incident in Atlanta. He
came out of a truck stop to find his truck’s door open and his rifle missing. He saw Mr.
Powell across the street and asked him what he was doing there. According to the
Defendant, Mr. Powell said, “Oh we’re up here having a little fun.” Shortly thereafter,
Mr. Kiem drove up in his truck and threw the Defendant’s rifle at him. When the
Defendant informed the men that they were going to get in trouble, Mr. Kiem said that
they were not going to find any fingerprints on the rifle and warned the Defendant to
“remember [his] two girls.” The Defendant claimed that although he never saw a body
on this occasion, he heard over the “CB” radio that a body was found in Lake Station,
Indiana. He clarified that he had been parked at the Pilot in Lake Station when these
events took place and that he was merely en route to Chicago.
The Defendant said he did not think the officers would find any prints other than
his on the gun. The Defendant then averred that the men wore gloves. Sergeant
Postiglione asked the Defendant about the blood he noticed under the Defendant’s
fingernails, and the Defendant said it got there from “cleaning up” last night in
Indianapolis. The Defendant also averred that the blood in his truck came from the
- 22 -
Indianapolis victim. He could not recall putting any clothing in the bag, stating that he
“just threw stuff in there.” The Defendant said that if blood was found on his gun, it was
likely from the Indianapolis victim. He did not believe that any blood would be found on
his knife, although he later clarified there “could be.”
Although the Defendant was only able to recall these six incidents, the Defendant
averred that Mr. Kiem claimed to have killed seven women; they possibly got the
Defendant’s “gun without [him] knowing it.” He did not know how they got in his truck
on these occasions, but they “seemed to get in just fine without a key.”
The Defendant said he thought about reporting the men to the police, but they
threatened his daughters. He claimed that he did go to the police “[a]bout them beating
[his] daughter[,] and they told them [to] leave her alone.” The Defendant further asserted
that he “got a lawyer to go after ‘em and she told [him] to leave ‘em alone” because they
were “dangerous.”
The Defendant was again asked if he ever thought about going to the police to tell
them “there’s two guys going out killing people.” For the first time, the Defendant said
that there were more than two men involved and implicated a third man, Terry Sanders,
who also “used to be” from the same area as the Defendant in Illinois. The Defendant
claimed that he only presently knew Mr. Powell’s whereabouts.
Upon continued questioning, the Defendant said that the men did not start
appearing at the truck stops until he “shot at one of them.” The Defendant also agreed
that it was possible there was DNA evidence in his truck from each victim he had
mentioned. The Defendant insisted that he was not involved in the murders, and that
concluded the interview.
After the recording of the Defendant’s police statement ended, the trial court again
provided the jury with an instruction “about how to use evidence of other crimes or
wrongs or acts.” The trial court specifically instructed as follows:
[Y]ou’re instructed not to consider some of these references to other
crimes, acts or wrongs—it’s not used to prove the disposition of this
defendant to commit this crime, but I’ve allowed this to be played to you
for you all to consider this as part of the complete story of the crime on trial
here and also to further—as another reason, of the [D]efendant’s identity.
This evidence may be considered by you if it tends to establish his identity
in the case on trial.
I would also instruct you that it could be considered as part of a
scheme or plan that is such evidence may be considered by you if it tends to
- 23 -
establish the [D]efendant engaged in a common scheme or plan for the
commission of two or more crimes so related to each other that proof of one
tends to establish the other one.
It could be used to establish motive, that is, such evidence may be
considered by you if it tends to show a motive of the [D]efendant for the
commission of the offense for which he is presently charged and also with
regard to his intent, that is, such evidence may be considered by you if it
tends to establish the [D]efendant actually intended to commit the crime for
which he is presently charged.
....
Remember, the State of Tennessee has the burden of proof to
establish each and every element of this case beyond a reasonable doubt.
Following the Defendant’s interview, Sergeant Postiglione and Detective Freeman
stated that they located and spoke with Mr. Kiem, Mr. Powell, and Mr. Sanders, and they
indicated that all three individuals were cooperative and provided DNA and fingerprint
samples. Relative to Mr. Kiem, they also spoke with Mr. Kiem’s mother, Lori Young,
because Mr. Kiem “was clearly mentally incapacitated” and she was his legal guardian.
Mr. Kiem “was unable to make any decision without [his mother’s] approval.” Medical
records for Mr. Kiem were entered into evidence. Sergeant Postiglione said that he was
unable to find any evidence that these three individuals were involved in the murders in
any way.
Ms. Young, Mr. Powell, and Mr. Sanders all testified at trial. Ms. Young testified
that Mr. Kiem suffered from autism and developed schizophrenia at the age of nineteen.
She testified that Mr. Kiem was “wholly disabled” and was unable to marry, vote, or
testify in a court of law. To Ms. Young’s knowledge, Mr. Kiem had never driven a
vehicle or been to Tennessee. Ms. Young testified that she met the Defendant fifteen
years prior when her truck broke down and she needed a ride to Arizona to borrow
money from her grandparents. During the drive, the Defendant offered to rent a house to
Ms. Young, and she lived in that house for about three months before they had “a falling
out” and she moved out. She had not spoken to the Defendant since.
David Powell testified that he knew the Defendant’s daughter and that he met the
Defendant through her when he was just eighteen or nineteen years old. He had only
been around the Defendant two or three times, and he had not seen him since. Mr.
Powell was not aware that the Defendant drove a truck until he learned that the
Defendant had implicated him in these murders. Mr. Powell denied that he had “ever
been in a place where a person was killed” or that he had “ever made any threats against
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any of [the Defendant’s] children[.]” Mr. Powell asserted that he had never been to
Lebanon, Tennessee, prior to coming to court to testify.
Terry Wayne Sanders II testified that Mr. Powell had previously been married to
Mr. Sanders’s sister and that the two men were still friends. Mr. Sanders confirmed that
he and Mr. Powell met with the police after the Defendant had implicated them “in this
heinous stuff” and that they both had provided DNA and fingerprint samples. Mr.
Sanders said that he had never “been in a place where a person was killed[.]”
Mr. Sanders provided paycheck stubs from his job, reflecting that he worked fifty-
two-and-one-half hours during the pay period ending June 8, 2007, which covered the
date of the victim’s murder. In addition, relevant to the time period surrounding Ms.
Hulbert’s murder, Mr. Sanders testified that he was in New Mexico on June 25, 2007,
because several of his family members had been involved in a car accident. Mr.
Sanders’s sister, mother, and nephew survived, but his niece and grandmother were killed
in the accident. He asserted that he did not visit Tennessee in the summer of 2007.
Mr. Sanders testified that he had spoken to Defendant “maybe three times,” with
the last time being “[a]t least fifteen years ago.” When Mr. Sanders was fifteen or
sixteen years old, he and some friends had vandalized the Defendant’s house by wrapping
toilet paper and plastic wrap around the Defendant’s trees and front porch. Mr. Sanders
and his friends did this to approximately twenty-five or thirty other houses that evening,
which was around Halloween. Someone from the Defendant’s family confronted Mr.
Sanders about his behavior.
About a year after the Defendant was incarcerated, Sergeant Postiglione received
information that the Defendant was trying to solicit Roy Lucas McLaughlin, a fellow
inmate, “to kill some witnesses so they could not testify against [the Defendant] at trial,”
specifically to have Ms. Young, Mr. Kiem, and Mr. Powell murdered. Thereafter, the
police recorded two conversations between the Defendant and Mr. McLaughlin, and
those recordings were played for the jury. In the recordings, the Defendant and Mr.
McLaughlin agreed on a sum of $15,000 in exchange for murdering the three witnesses,
and the Defendant was supposed to contact Mr. McLaughlin’s uncle in order to repay the
debt.
On the first recording, after some small talk, Mr. McLaughlin told the Defendant
that he was worried about what would happen “[i]f they start correlating this s--t after
[Mr. McLaughlin][got] out.” Mr. McLaughlin stated that he did not think that the
Defendant would turn him in to the police but that he wanted to “just go ahead” and “iron
everything out.” Mr. McLaughlin asked who David was and why he was “on the list.”
The Defendant told Mr. McLaughlin that David (Mr. Powell) lived with Ms. Young’s
daughter. The Defendant described Ms. Young’s daughter as “a hooker too, that goes to
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the three truck stops up there in Anderson.” Mr. McLaughlin then said that he was going
to cause “a gas leak in the trailer,” in which “everybody blows up.”
Later in the conversation, Mr. McLaughlin asked, “And you still need those alibis
right,” and the Defendant responded affirmatively. Mr. McLaughlin claimed to have
“them set up for” the Defendant: “Where they were supposed to see [him] and
everything.” Mr. McLaughlin noted that the three individuals would testify against the
Defendant, and he would “go ahead and kill them.” The Defendant informed Mr.
McLaughlin that Mr. Powell did not live with Ms. Young and Mr. Kiem. The Defendant
said that it was not necessary to kill Ms. Young’s daughter.
In the second recording, Mr. McLaughlin asked who was “that other dude we were
talking about?” The Defendant replied, “David Powell? Or Ritchie.” The Defendant
then spelled Mr. Powell’s name for Mr. McLaughlin and provided Mr. Powell’s address.
Mr. Laughlin then asked about Mr. Kiem, and the Defendant informed Mr. McLaughlin
that Mr. Kiem lived with his mother in a “trailer park.” The Defendant then said Mr.
Kiem was twenty-six years old, and he also spelled Mr. Kiem’s name for Mr.
McLaughlin. Mr. McLaughlin asked for a description of Mr. Kiem to make sure he got
“the right one,” and the Defendant stated that he had not seen Mr. Kiem in years. The
Defendant described that Mr. Kiem had “mental problems” and that he attended “an adult
learning center.” The Defendant explained that Mr. Kiem was not “smart enough to
pass” a driver’s examination, so his mother dropped off and picked up Mr. Kiem from
school. In addition, Mr. Kiem had dark brown hair and a full beard, according to the
Defendant.
After the recordings were played, the trial court once more instructed the jury on
how it was to consider proof of other “crimes and other wrongs or acts” committed by the
Defendant. Specifically, the trial court instructed that such evidence “may not be
considered . . . to prove [the Defendant’s] disposition to commit this crime on trial but for
other purposes such as the complete story of the events that relate to this case, [the
Defendant’s] identity, common scheme or plan, motive, and, indeed, the [D]efendant’s
intent[.]”
Danny Davis testified that he was the Defendant’s employer through his small
trucking firm at the time of the Defendant’s arrest. The Defendant had worked for Mr.
Davis approximately one year at that time. Mr. Davis recalled a conversation in the
weeks prior to Defendant’s arrest that involved the Defendant, the Defendant’s wife, Mr.
Davis, and Mr. Davis’s wife. They discussed where the Defendant “was parking at and
different locations he was going in and [the Defendant] made reference to these large
truck stops.” Mr. Davis pointed out that he “wished [the Defendant] wouldn’t park in
these large truck stops because basically wrecks could happen there and a lot of drug
dealers and a lot of prostitution, and [he] didn’t like it.” According to Mr. Davis, they
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started talking about what Mr. Davis referred to as “lot lizards,” or prostitutes, being
prevalent at the big truck stops, and the Defendant said, “I just shoot them.” Mr. Davis
testified that the law prohibited drivers from having weapons inside their trucks and that
he informed his employees of such.
Mr. Davis confirmed that his trucks were not equipped with GPS or electronic
logging devices. Employees were required to maintain their own log books. Mr. Davis
was shown the Defendant’s log books, which reflected the following details. On May 1,
2007, the Defendant wrote that he travelled from Albion, Illinois, to Effingham, Illinois,
to Nashville, Tennessee, and then to Crab Orchard, Tennessee. On June 5, 2007, the
Defendant wrote that he had traveled from Goldsboro, North Carolina, to Mebane, North
Carolina, and then to Pioneer, Tennessee. On June 6, 2007, the Defendant wrote that he
had traveled from Pioneer, Tennessee, to Indianapolis, Indiana, and then to Freemont,
Indiana. On June 7, 2007, the Defendant wrote that he had undergone a vehicle
inspection in Freemont, Indiana; that he had unloaded in Kalamazoo, Michigan; that he
had loaded in Albion, Indiana; that he had gotten fuel in Daleville, Indiana; and that he
had gone to the sleeping compartment in Kentucky. Mr. Davis confirmed that the
Defendant’s logs were written by the Defendant and that there was no way to confirm
that the Defendant had actually traveled the route he logged. Moreover, drivers were
given discretion about which routes to take.
Mr. Davis was also shown a trip report for the Defendant’s trip beginning on June
4th in Goldsboro, North Carolina, and ending on June 7th of 2007, in Kalamazoo,
Michigan. When the Defendant started the trip, the truck’s odometer read 787,675 miles,
and when he finished, it read 789,064. In the trip report, the Defendant also wrote down
the routes he took, along with mileage for those routes.
According to Mr. Davis, it was not uncommon to find a lot of mistakes or
falsehoods in a driver’s log books. In fact, Mr. Davis indicated that he had previously
disciplined the Defendant for log violations on three occasions, one such violation
occurring on April 30, 2007. The Defendant’s discipline report, as well as his logs and
trip report, were entered into evidence.
TBI Agent Patrick Ihrie, of the DNA and serology unit, testified that he received a
blood sample from the victim and compiled her DNA profile. TBI Agent Michael
Turbeville was also a DNA analyst and had worked alongside Agent Ihrie. Agent Ihrie
confirmed that the blood on the blue tarp cut from Mr. Pesnell’s truck was indeed the
victim’s. Agent Ihrie examined a “food box from [the] crime scene,” and while
“presumptive tests indicated the presence of blood,” results were ultimately inconclusive.
Agent Turbeville confirmed that the DNA sample obtained from the cigarette butt found
at the crime scene, as well as the vomit nearby, was tested against the DNA profiles of
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the Defendant, Mr. Sanders, Mr. Powell, and Mr. Kiem and did not match. Any
identifiable blood from the crime scene was found to be the victim’s.
In addition, Agent Ihrie received the samples from the victim’s sexual assault kit.
Semen was present on the vaginal swab, but it was not a match for the Defendant’s DNA
profile. Agent Ihrie noted that semen may not always be present if a condom was used.
Agent Scott assisted in collecting evidence from the Defendant’s truck after it was
impounded. Agent Scott testified that inside the truck, he found condoms, including an
opened condom, four individual .22-caliber cartridge cases, and a Remington
Speedmaster Model 552 .22-caliber rifle. A yellow notepad found in the truck had a note
that read, “4-sex ok.” Knives, black tape, electrical tape, latex gloves, and razor blades
were also found in the truck.
Agent Scott examined the .22-caliber rifle found in the Defendant’s truck with the
bullets recovered by the medical examiners from the victim and Ms. Hulbert. Agent
Scott began by test-firing the rifle, and he found “[a]pproximately six inches or so down
the inside barrel of the gun, . . . a ring of rust inside the barrel.” Agent Scott opined that
the ring of rust “was a serious consideration for” him “because rust inside the barrel of a
firearm would overmark or overwrite over the bullets that come down its barrel.”
Initially, he could not match either bullet to the rifle due to the overmarking caused by
the rust present. He could not date the rust. Agent Scott then cleaned the firearm and
removed most of the rust, although cleaning it “did not completely remove the
overmarking.” Agent Scott test-fired more bullets to obtain new bullet markings for
comparison.
Agent Scott compared the newly test-fired bullets to the two bullets from Ms.
Hulbert and the victim. Agent Scott testified that he compared Ms. Hulbert’s bullet first
because it “was the more whole bullet.” From his comparison, he concluded that the
bullet from Ms. Hulbert was fired through the Defendant’s rifle. He “was not able to
identify the [victim’s] bullet directly to the [Defendant’s] rifle.” Agent Scott explained
that “[t]he damage to the [victim’s] bullet had an impact on whether [he] could compare
it directly to test bullets from the rifle which had been overmarked by the rust that was
inside the barrel of the gun.” However, “he stood by [his] identification of the [victim’s]
bullet to the Hulbert bullet[.]” A sketch of how he matched the markings on the two
bullets was entered into evidence.
Agent Scott also concluded that three of the four cartridge casings found inside the
Defendant’s truck were fired from the Defendant’s rifle. The fourth casing did not have
enough individual characteristics for Agent Scott to conclusively identify it, but he could
not exclude the casing from having been fired by the rifle.
- 28 -
Agent Scott’s conclusions were confirmed by a second examiner. In addition,
according to Agent Scott, it was “a practical impossibility that two different weapons
would make the same marks.” Nonetheless, Agent Scott was asked about the possibility
of bias occurring in the field of firearm and tool mark comparison. He affirmed that
Sergeant Postiglione informed him of the similar circumstances of these two cases, as
well as Sergeant Postiglione’s telling him that it was possible there was a “third case
from Alabama.” Agent Scott indicated that he test-fired additional bullets in case other
victims were found.
TBI Agent Kendra Fleenor was qualified by the trial court as an expert in the field
of latent print comparison. Agent Fleenor examined multiple items of evidence in this
case. She had received the fingerprints of the Defendant, Mr. Sanders, Mr. Powell, and
Mr. Kiem for comparison. Twenty-five of the prints taken from items found inside the
truck matched the Defendant’s prints. Only one identifiable print was observed on the
Defendant’s rifle, and it matched the Defendant. Agent Fleenor was not able to match
any of the remaining prints lifted from items inside the truck to Mr. Kiem, Mr. Powell, or
Mr. Sanders.
Agent Fleenor also received items from the crime scene in Lebanon, including the
items of trash placed on the victim’s back. She was able to obtain an identifiable
fingerprint on one of the beer cans from inside the plastic bag; it was not a match for the
Defendant. She was also able to obtain an identifiable palm print from one of boxes
found inside the plastic bag, but it did not match the Defendant’s either. On the Taco
Bell food box, Agent Fleenor was able to identify two latent fingerprints, one belonging
to the Defendant and the other to an unknown individual. According to Agent Fleenor,
the fingerprint was from the Defendant’s right little finger. She did not compare the
prints found on the items from the Lebanon crime scene to the prints of Mr. Kiem, Mr.
Powell, or Mr. Sanders.
Agent Fleenor testified that there were three basic fingerprint pattern types: loops,
arches, and whorls. When asked to identify the “level-one detail” she observed in the
Defendant’s fingerprint on the Taco bell box, Agent Fleenor stated that she was able to
“see the top part of the core, which is the center part of the pattern type.” She was able to
observe a “right-slant loop” in the print. Agent Fleenor stated that approximately sixty-
five percent of the population have a loop pattern, which included the Defendant. She
was also able to confirm “level two detail” in the Defendant’s print on the box. Finally,
Agent Fleenor’s finding was confirmed by another analyst.
Agent Fleenor confirmed that there were “not a minimum number of points
required” in order to make a fingerprint comparison. She admitted that unintentional
errors in identification could occur, typically involving a “low quality latent print.” In
her opinion, most errors occurred when the examiner had seen the known impression first
- 29 -
before comparing it to the latent print. Agent Fleenor cited to a study that she had read,
which indicated “that the error rate for erroneous identification . . . was .1 percent.”
According to Fleenor, the field of latent fingerprint identification did not currently “use
models in latent examination.”
The final jury instructions are not included in the record on appeal. However, the
trial court indicated that it intended to again charge the jury on how to use “evidence of
other crimes, wrongs, or acts.” The trial court commented that it would charge
Tennessee Pattern Jury Instruction 42.10 and would insert the purposes for which the
evidence could be considered, those being, “complete story of the crime, identity, scheme
plan, motive, [and] intent,” but not “guilty knowledge.” Following the conclusion of the
proof, the Defendant was convicted as charged of the victim’s murder and abuse of her
corpse.
3. Sentencing and Appeal
The trial court imposed a life sentence for the murder conviction. At the August 7,
2018 sentencing hearing that followed, the trial court sentenced the Defendant to two
years for the abuse of a corpse conviction. In addition, the trial court ordered that the two
sentences in this case be served consecutively to one another, as well as consecutively to
the Davidson County sentences of life for the murder conviction and thirty years for the
solicitation convictions, resulting in an effective sentence of two life terms plus thirty-
two years. After denial of the Defendant’s timely motion for new trial, this appeal
followed.
ANALYSIS
I. Issue Preclusion
On appeal, the Defendant maintains that the trial court erred by applying the law
of the case doctrine and the doctrine of collateral estoppel to preclude him from raising
his constitutionally-based suppression issues regarding the search of his truck and his
statements. The Defendant notes that he was prevented from having the trial court of
another jurisdiction render “its own assessment of witness credibility and weighing of the
evidence in order to make its own findings of fact[s] and rulings of law as to what
evidence . . . the law enforcement officers in this case obtained” in violation of his
constitutional rights. The State argues that the trial court did not err by applying the
doctrine of collateral estoppel because the Defendant’s threshold constitutional issues
concerning admissibility had “already been determined in two prior actions.”
The law of the case doctrine prevents the reconsideration of claims that have been
decided in a prior appeal of the same case. See State v. Jefferson, 31 S.W.3d 558, 560
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(Tenn. 2000). “[U]nder the law of the case doctrine, an appellate court’s decision on an
issue of law is binding in later trials and appeals of the same case if the facts on the
second trial or appeal are substantially the same as the facts in the first trial or appeal.”
Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d
303, 306 (Tenn. 1998) (emphasis added); see also Jefferson, 31 S.W.3d at 560-61. This
doctrine “applies to issues that were actually before the appellate court in the first appeal
and to issues that were necessarily decided by implication,” but the doctrine does not
apply to dicta. Memphis Publ’g. Co., 975 S.W.2d at 306. The doctrine “is not a
constitutional mandate nor a limitation on the power of a court” but “is a longstanding
discretionary rule of judicial practice which is based on the common sense recognition
that issues previously litigated and decided by a court of competent jurisdiction ordinarily
need not be revisited.” Id. (citations omitted). Application of the doctrine promotes
finality, efficiency, consistent results, and obedience to appellate decisions. Id.
The law of the case doctrine, however, is distinct from the doctrine of collateral
estoppel. “The law of the case and collateral estoppel are different in that collateral
estoppel prevents the relitigation of issues in successive suits between the same parties;
the law of the case prevents relitigation of the same issues within successive stages of the
same suit.” State v. Scarbrough, No. E2003-02850-CCA-R9-CD, 2004 WL 2280423, at
*4-5 (Tenn. Crim. App. Oct. 11, 2004) (“Scarbrough I”), aff’d, 181 S.W.3d 650 (Tenn.
2005) (quotation omitted). Here, the trial court never specifically relied on the law of the
case doctrine in rendering its ruling, stating only that the State’s motion asserting the law
of the case and collateral estoppel doctrines was “well-taken.” During its oral ruling
from the bench, the trial court relied only on collateral estoppel as the basis for its
decision. Moreover, the State does not reference the law of the case doctrine in its
argument on appeal. We agree with the Defendant that the law of the case doctrine is
inapplicable and will turn our attention to the doctrine of collateral estoppel.
Collateral estoppel, also called “issue preclusion,” is a doctrine of judicial
economy utilized to prevent costly relitigation of the same issues, conserve judicial
resources, and encourage reliance on judicial conclusions. See Gibson v. Trant, 58
S.W.3d 103, 113 (Tenn. 2001); Beaty v. McGraw, 15 S.W.3d 819, 824 (Tenn. Ct. App.
1998). Collateral estoppel “bars the same parties or their privies from relitigating in a
later proceeding legal or factual issues that were actually raised and necessarily
determined in an earlier proceeding.” Mullins v. State, 294 S.W.3d 529, 534 (Tenn.
2009) (citations omitted). The Tennessee Supreme Court summarized the law of
collateral estoppel in Mullins:
The party invoking collateral estoppel has the burden of proof. To
prevail with a collateral estoppel claim, the party asserting it must
demonstrate (1) that the issue to be precluded is identical to an issue
- 31 -
decided in an earlier proceeding, (2) that the issue to be precluded was
actually raised, litigated, and decided on the merits in the earlier
proceeding, (3) that the judgment in the earlier proceeding has become
final, (4) that the party against whom collateral estoppel is asserted was a
party or is in privity with a party to the earlier proceeding, and (5) that the
party against whom collateral estoppel is asserted had a full and fair
opportunity in the earlier proceeding to contest the issue now sought to be
precluded.
Moreover, in order for the doctrine of collateral estoppel to apply,
the issue must not only have been actually litigated and decided, it must
also have been necessary to the judgment. Determinations of an issue or
issues that are not necessary to a judgment have the characteristics of dicta
and will not be given preclusive effect.
294 S.W.3d at 535 (citations and footnote omitted). The question of whether collateral
estoppel applies is a question of law. Id.
The doctrine of collateral estoppel, as used offensively by the State, has been
applied infrequently in criminal cases on direct appeal. See State v. Michael Rimmer,
No. W2017-00504-CCA-R3-DD, 2019 WL 2208471 (Tenn. Crim. App. May 21, 2019)
(noting the infrequency and deciding to address the issue on the merits), WILL HAVE
PERM APP FILED DD. The Tennessee Supreme court held in State v. Scarbrough, 181
S.W.3d 650, 652 (Tenn. 2005) (“Scarbrough II”), that the Tennessee Constitution does
not permit the prosecution to use collateral estoppel against the defendant in order to
establish an essential element of the offense; an affirmance of this court’s holding in
Scarbrough I reaching the same outcome. However, this court, in rendering its decision
in Scarbrough I, provided examples of courts allowing collateral estoppel to be used
against a criminal defendant in other situations, such as in cases involving alienage,
status, and suppression issues. See 2004 WL 2280423, at *9-12. In particular regarding
suppression cases, the Scarbrough I court noted the following:
[P]rosecutors have used offensive collateral estoppel to prevent defendants
from contesting motions to suppress evidence where judges in prior cases
had determined that the evidence was admissible. See, e.g., United States
v. Levasseur, 699 F. Supp. 965 (D. Mass.), rev’d on other grounds, 846 F.2d
786 (1st Cir. 1988); State v. Hider, 715 A.2d 942, 945 (Me. 1998) (in
second trial, after reversal of first conviction, collateral estoppel doctrine
barred defendant from relitigating suppression issue); Richard B. Kennelly,
Jr., Precluding the Accused: Offensive Collateral Estoppel in Criminal
Cases, 80 Va. L.Rev. 1379, 1384-86 (1994). Moreover, our supreme court
has suggested that such applications of collateral estoppel might be
- 32 -
acceptable: “While collateral estoppel likely could be applied in this
circumstance [to give preclusive effect to a prior suppression decision],
having thoroughly reviewed the entire record, we choose to address the
defendant’s contention on its merits.” State v. Flake, 114 S.W.3d 487, 507
(Tenn. 2003).
Id. at *11.
Nonetheless, our supreme court in Scarbrough II distinguished Flake as follows:
“In sum, the issue in Flake did not involve the State’s use of collateral estoppel to prevent
the re-litigation of the essential elements of a charged offense, and the court’s statement
was dicta that is in no way controlling in this case.” 181 S.W.3d at 655 n.3. The
rationale underlying the court’s holding in Scarbrough II—that the prosecution may not
invoke the doctrine of offensive collateral estoppel to establish an essential element of a
charge in a criminal case—placed emphasis on the defendant’s right to a jury trial,
specifically that such right “include[d] the right to have every fact tried and determined
by twelve jurors and to have all issues of fact submitted to the same jury at the same
time.” 181 S.W.3d at 658 (quotation omitted). The Scarbrough II court further reasoned
that the interests of “efficiency and judicial economy . . . [were] illusory when applied to
the circumstances” of that case because the State was still required to present proof of the
underlying felony regardless of whether the doctrine of collateral estoppel was applied.
Id. The court concluded, “As a result, the use of collateral estoppel would not achieve
efficiency or judicial economy and would serve only to imperil the defendant’s right to a
trial by jury in this proceeding.” Id.
Neither of the interests present in Scarbrough II are pervasive here, and we find
the circumstances of this case to be more aligned with the statement from our supreme
court in Flake that the doctrine’s application may be appropriate in some criminal cases.
These initial threshold constitutional suppression issues presented by the Defendant in his
motions are pretrial matters for the judge’s determination and do not involve the jury or
usurp their role as fact-finder. The Defendant does not claim that he sought to introduce
different evidence or make new legal claims but rather that he should be permitted to
retry the matter in another jurisdiction before a different trial judge. Twice these issues
have been raised, litigated, and affirmed on appeal. See Mendenhall, 2013 WL 430329,
at *14-16; Mendenhall, 2013 WL 360525, at *44-49. Our supreme court has denied
permission to appeal, and the judgments have become final. Likewise, there is no
question that the issues were necessary to the judgments.
Moreover, the issues are identical to those presented in the Davidson County
cases; all cases involving the Defendant and felony crimes for which he was charged.
While “finality and conservation of private, public and judicial resources are” of lesser
value in criminal cases than in civil litigation, see Ashe v. Swenson, 397 U.S. 436, 464
- 33 -
(1970) (Burger, C.J., dissenting), they are not completely inconsequential. The
Defendant, represented by counsel, had a full and fair opportunity to be heard. Because
the motions and the evidence were identical, the interests of efficiency and judicial
economy are promoted by preclusion. The trial court did not have to conduct additional
hearings, which would require the presence of all parties and the presentation of
evidence, including subpoenaing witnesses.
We also note that the trial court did not preclude all of the Defendant’s
suppression issues, only those threshold issues of admissibility that had been previously
determined and that were not fact specific to each individual case. The Defendant was
still permitted to make evidentiary-based arguments; in fact, an extensive hearing was
held on the subject on February 1, 2018, despite his assertions to the contrary. In
addition, nothing here seems to suggest that the prosecution brought separate
prosecutions for strategic or bad faith reasons. Accordingly, we hold that the trial court
properly determined that the Defendant was collaterally estopped from relitigating his
suppression motions raising threshold constitutional issues of admissibility.
II. Other-Acts Evidence
The Defendant argues that the trial court erred in admitting evidence of crimes
besides those offenses for which he was being tried, those other crimes being evidence
related to the Davidson County murder and solicitation cases, references to other out-of-
state killings in his police statement, and recordings made by the jailhouse informant.5
The Defendant also argues that even if his police statement was admissible, it should
have been redacted to exclude impermissible references to other crimes or bad acts of the
Defendant. The State responds that the trial court properly admitted the evidence.
Tennessee Rule of Evidence 401 provides that “‘[r]elevant evidence’ means
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.” Generally, relevant evidence is admissible, while irrelevant evidence is
inadmissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its
probative value is “substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” Tenn. R. Evid. 403. The term “unfair prejudice”
has been defined as “[a]n undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947,
951 (Tenn. 1978). “The admissibility of evidence under Rule 403 of the Tennessee Rules
5
The Defendant makes multiple references in his argument to the State’s introduction of evidence of his
prior convictions from the two Davidson County cases. However, we can find no evidence in the record
that his actual convictions or evidence of the jury’s verdicts of guilt were presented to the jury. His
complaint seems to be with the same proof from those cases being admitted in this case.
- 34 -
of Evidence is a matter within the trial court’s discretion and will not be reversed on
appeal absent an abuse of that discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn.
Crim. App. 2006) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).
Tennessee Rule of Evidence 404(b) generally prohibits “[e]vidence of other
crimes, wrongs, or acts . . . to prove the character of a person in order to show action in
conformity with the character trait.” State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014).
Rule 404(b) allows such evidence in limited circumstances for purposes other than
proving action in conformity with a character trait. Id. The rule sets out certain
procedural requirements the trial court must follow:
(1) The court upon request must hold a hearing outside the jury’s
presence;
(2) The court must determine that a material issue exists other than
conduct conforming with a character trait and must upon request state on
the record the material issue, the ruling, and the reasons for admitting the
evidence;
(3) The court must find proof of the other crime, wrong, or act to be
clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
The comments to Rule 404(b) provide that evidence of other crimes, wrongs, or
acts should be excluded unless relevant to an issue other than the character of the
defendant, such as identity, motive, intent, or absence of mistake. Tenn. R. Evid. 404,
Advisory Comm’n cmt; see also Jones, 450 S.W.3d at 891. In addition to these
exceptions, evidence of other acts may be admitted to provide the jury with necessary
contextual background evidence or to complete the story. State v. Gilliland, 22 S.W.3d
266, 272 (Tenn. 2000). A trial court’s decision regarding the admission of Rule 404(b)
evidence will be reviewed under an abuse of discretion standard; however, “the decision
of the trial court should be afforded no deference unless there has been substantial
compliance with the procedural requirements of the Rule.” DuBose, 953 S.W.2d at 652.
The trial court in this case substantially complied with the procedural requirements
of Rule 404(b); therefore, we will review its decisions for an abuse of discretion. As
noted above, the trial court (1) held a pretrial hearing on the Defendant’s motion to
exclude the evidence; (2) found that evidence was admissible for the purposes of
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contextual background, to complete the story, to establish the Defendant’s identity, to
prove a common scheme or plan, and to show the Defendant’s motive and intent; (3)
found that the other crimes, wrongs, or acts were established by clear and convincing
evidence; and (4) found that the probative value of the evidence was not outweighed by
the danger of unfair prejudice. In addition, the trial court gave numerous instructions to
the jury on how it was to consider this evidence, and juries are presumed to follow the
trial court’s instructions. See State v. Walker, 910 S.W.2d 381, 397 (Tenn. 1995).
1. Davidson County Murder. The Defendant argues that the trial court erred by
allowing the State to present proof of Ms. Hulbert’s murder and evidence from her trial to
establish his guilt in this case. The Defendant contends that the evidence from Ms.
Hulbert’s trial was not admissible to complete the story, provide contextual background
evidence, establish his identity, prove a common scheme or plan, or to show his motive
or intent; all of which purposes were found by the trial court in its decision to admit the
evidence. In addition, according to the Defendant, the similarity of the two offenses had
significant prejudicial impact on the jury’s decision in this case; the Defendant notes the
strength of the proof in the Davidson County case that the Defendant killed Ms. Hulbert
in his prejudicial analysis. Finally, the Defendant submits that the trial court should have
redacted his formal police statement to exclude all references he made to other murders in
both Davidson County and out-of-state.
The Defendant’s argument does not discuss the precise nature of the proof from
the Davidson County murder case which he seeks to foreclose. The Defendant’s
allegations mainly center around his formal police statement; however, we observe that
proof from the Davidson County murder case also included crime scene information
secured from the TA truck stop where Ms. Hulbert’s body was found and testimony from
Agent Scott regarding tool mark and firearms examination of the bullets and the
Defendant’s rifle.
Recognizing that events “do not occur in a vacuum, and in many cases, knowledge
of the events surrounding the commission of the crime may be necessary for the jury to
‘realistically evaluate the evidence,’” our supreme court created a three-part test for
determining when evidence of other bad acts may be offered as contextual background
evidence under Rule 404(b). See Gilliland, 22 S.W.3d at 272 (citing Albrecht v. State,
486 S.W.2d 97, 100 (Tex. Crim. App. 1972)). Our supreme court stated the three-part
test as follows:
[W]hen the [S]tate seeks to offer evidence of other crimes, wrongs, or acts
that is relevant only to provide a contextual background for the case, the
[S]tate must establish, and the trial court must find, that (1) the absence of
the evidence would create a chronological or conceptual void in the
[S]tate’s presentation of its case; (2) the void created by the absence of the
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evidence would likely result in significant jury confusion as to the material
issues or evidence in the case; and (3) the probative value of the evidence is
not outweighed by the danger of unfair prejudice.
Id. at 272 (emphasis added).
The Defendant complains that the evidence regarding Ms. Hulbert’s murder and
the out-of-state murders failed to satisfy the Gilliland test. However, the Gilliland test is
applicable only when the State seeks to introduce the evidence for the sole purpose of
establishing contextual background. See State v. Leach, 148 S.W.3d 42, 58 (Tenn.
2004). Here, the trial court ruled that the evidence was admissible to establish motive as
well as to provide contextual background to the jury. The trial court instructed the jury
that the evidence could be considered for purposes of providing contextual background as
well as proving motive and intent. As our supreme court has noted, “[e]vidence proving
motive necessarily serves the purpose of completing the story of the crime.” Id. When
evidence is “offered and properly admitted to show motive,” and motive is a material
issue in the case, then a jury instruction on contextual background evidence is
“superfluous.” Id. The Defendant’s complaint that the evidence does not satisfy the
Gilliand test is misplaced, and the proper inquiry is whether the evidence was admissible
to establish the Defendant’s motive in this case. See, e.g., Mendenhall, 2013 WL
360525, at *62 (holding same).
Simply put, motive “is the reason why someone did a particular act” and “may
provide the driving force that led the accused to commit the crime being tried.”
Mendenhall, 2013 WL 360525, at *62 (citation omitted). The motive of a defendant in
the commission or attempt of a murder is “almost always [a] critical issue[].” State v.
Gentry, 881 S.W.2d 1, 7 (Tenn. Crim. App. 1993).
Regarding motive and intent, the Defendant made references to multiple murders
of prostitutes at truck stops in his police statement, including specifics about the
Nashville murder and his positioning of the victim’s body. He asserted that Mr. Kiem,
Mr. Powell, and Mr. Sanders randomly appeared at truck stops along his routes, using his
rifle and truck to have sex with prostitutes before murdering them. While the Defendant
claimed he was not in Lebanon when the victim was murdered, he referenced the correct
Pilot truck stop where the victim’s body was found, and he confirmed that he saw blood
in his truck after these men appeared at that location. Both police departments worked
together believing they were dealing with the same killer, and subsequently, the
Defendant was apprehended by Sergeant Postiglione and Detective Freeman. The
MNPD officers were responsible for the initial search of the Defendant’s truck that
culminated in his arrest. These same officers interviewed the Defendant, while Detective
Whitefield observed. The Defendant’s employer said that the Defendant claimed to shoot
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“lot lizards”; and the Defendant, speaking with Mr. McLaughlin, described Ms. Young’s
daughter as “a hooker, too,” that frequented truck stops.
Furthermore, in order to establish the Defendant’s rifle as the murder weapon, the
State needed to present evidence of the comparison of the bullet removed from the
victim’s head with the bullet removed from Ms. Hulbert’s head. Agent Scott was able to
conclusively state that both bullets were fired through the same rifle and that Ms.
Hulbert’s bullet was fired through the Defendant’s rifle, thus, establishing that the victim
was shot in the head with the Defendant’s .22 rifle.
Absent evidence regarding Ms. Hulbert’s murder and the Defendant’s statement to
police about that murder, the Defendant’s actions and statements would have appeared to
be random and would have likely caused significant jury confusion. Accordingly, we
conclude that the trial court did not err in admitting the evidence of Ms. Hulbert’s murder
in order to establish the Defendant’s motive for killing prostitutes like this victim, and by
extension, to provide contextual background to the jury. See Mendenhall, 2013 WL
360525, at *62-63 (reaching similar conclusion in the Davidson County solicitation case).
While only one purpose other than propensity is necessary to satisfy admission
under Rule 404(b), the trial court also found that the murders of the victim and Ms.
Hulbert were sufficiently similar to prove identity. Moreover, the Defendant devotes a
substantial portion of his argument on appeal addressing this finding.
When the State offers proof that a defendant committed crimes other than the one
on trial as evidence of the defendant’s identity as the perpetrator, “the modus operandi of
the other crime and of the crime on trial must be substantially identical and must be so
unique that proof that the defendant committed the other offense fairly tends to establish
that he also committed the offense with which he is charged.” Bunch v. State, 605
S.W.2d 227, 230 (Tenn. 1980).
[M]ere similarity in the manner in which two crimes are committed does
not produce the relevance necessary for admission—uniqueness does. For
not only must the offenses have been committed similarly, but they must
also have been committed in a unique and distinctive manner. Obviously,
the more unique and distinctive the methods, the more appropriate is the
inference. The converse also obtains: that is, the less unique and distinctive
the methods, the less appropriate the inference.
State v. Roberson, 846 S.W.2d at 280 (Tenn. Crim. App. 1992). “Although offenses may
be similar in many respects, ‘they cannot be classified as signature crimes if they lack a
distinct modus operandi.’” State v. Toliver, 117 S.W.3d 216, 229 (Tenn. 2003) (quoting
State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999)). To be admissible, “the offenses need
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not be identical in every respect,” Shirley, 6 S.W.3d at 248 (citing Bunch, 605 S.W.2d at
231), but “the methods used in committing the offenses must have ‘such unusual
particularities that reasonable men can conclude that it would not likely be employed by
different persons.’” Shirley, 6 S.W.3d at 248 (quoting Harris v. State, 227 S.W.2d 8, 11
(Tenn. 1950)). “[T]he applicable standard focuses on the distinctiveness of the crimes,
not a mere assessment of similarities or an existence of rarity.” State v. Jones, 450
S.W.3d 866, 895 (Tenn. 2014) (citing Roberson, 846 S.W.2d at 280).
When assessed under the appropriate standard, it is clear that the methods used in
the murders of both the victim and Ms. Hulbert are indeed quite similar—the victims
were both prostitutes, their nude bodies were left at truck stops, the victims were both
shot in the head with the same caliber bullet, and both appeared to have something placed
around their heads prior to their disposal. But, none of these “are so unique that they may
be said to bear the stamp or imprimatur” of a single individual. Shirley, 6 S.W.3d at 249.
However, we believe the “signature” or “imprimatur” here was the manner in which the
Defendant positioned the bodies. This was so unusual or distinct “that reasonable people
would conclude that the same person committed” both offenses. Id.; see also State v.
Davis, 706 S.W.2d 96, 100 (Tenn. Crim. App. 1985).
Regarding the positioning of Ms. Hulbert’s body, the officers described that she
was lying nude on her back, with the bottoms of her feet pushed together and forward,
and her knees “were spread out to the side” exposing her vagina to anyone that walked
by. Here, the naked victim was “set straight down in, feet first,” into the garbage can,
leaned forward with her head hanging off to the side. Items of garbage were placed on
her back. The posing of both bodies was indicative of some sort of deranged social
commentary from the Defendant about his beliefs concerning these women and their
vocation. He claimed he “just shoots” “lot lizards.” The Defendant took extraordinary
steps to display the victims in a very demeaning manner; it is this display that makes
these crimes unique to this Defendant. When combined with the numerous other
similarities between the two crimes in terms of their location, the type of victim chosen,
and the manner in which the murders were committed, we simply cannot conclude that
the trial court abused its discretion by concluding that the methods used to commit the
crimes were sufficiently similar to permit the admission of evidence of Ms. Hulbert’s
murder pursuant to Rule 404(b). See, e.g., State v. Guy L. Hines, No. E2012-02456-
CCA-R3-CD, 2013 WL 5940634, at *8 (Tenn. Crim. App. Nov. 5, 2013) (holding that
the trial court did not abuse its discretion in admitting evidence of another assault because
the perpetrator involved in both assaults “utilized a bicycle as his means of locomotion
and attacked women working alone at their place of business in broad daylight,”
combined with the numerous other similarities between the two crimes, was “sufficiently
peculiar to peak the interest of a reasonable person”).
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2. Out-of-State Bad Act Evidence. Relative to the Defendant’s argument
regarding redaction of his police statement to exclude references to the out-of-state bad
act evidence, the Defendant again makes a collective argument regarding this evidence,
making no specific argument about each additional out-of-state instance. We observe
that the Defendant referenced four other specific incidents in his statement besides the
Davidson and Wilson County offenses—Indianapolis, Birmingham, Atlanta, and Lake
Station.
The Defendant told Sergeant Postiglione that the blood underneath his fingernails
at the time of his arrest was from cleaning up after a killing perpetrated by Mr. Kiem and
Mr. Powell the night before in Indianapolis. The Defendant said that after going inside a
Flying J truck stop to eat, he returned to his truck and found these two men sitting in his
truck and “blood all over the place.” The Defendant saw a nude “dead girl” that had been
shot in the head, and she had a bag over her head. The Defendant indicated that the blood
found inside his truck came from the Indianapolis victim.
The Defendant also claimed that while in Birmingham, Alabama, he went inside a
Pilot truck stop and returned again to find Mr. Kiem and Mr. Powell inside his truck. The
Defendant claimed that on this occasion, his rifle went missing but that it was somehow
later mysteriously returned to him. The Defendant said that “he suspected something
happened” on this occasion.
Detailing an incident in Atlanta, Georgia, the Defendant said that Mr. Kiem and
Mr. Powell found him at a truck stop in Louisville, Kentucky, and that they forced him to
let them ride with him to Atlanta. According to the Defendant, once at a truck stop in
Atlanta, the two men left with the Defendant’s rifle and returned sometime later.
Although the Defendant could not remember if the two men took his electrical tape from
his truck when they left on this occasion, the Defendant indicated that one roll of tape
from his truck did go missing at some point.
Finally, the Defendant detailed an incident in Illinois where he emerged from a
truck stop in Lake Station, Illinois, to find his rifle missing from his truck. The
Defendant claimed that he saw Mr. Powell across the street and that Mr. Powell said, “Oh
we’re up here having a little fun”; that Mr. Keim then drove up in Mr. Kiem’s truck and
threw the Defendant’s rifle at him; and that Mr. Kiem asserted that they would not get
into trouble because there were no fingerprints on the rifle. The Defendant told Sergeant
Postiglione that he later heard over the CB radio that a body had been found in Lake
Station, Illinois.
The Defendant claimed in his police statement that Mr. Kiem and Mr. Powell “did
it all the time,” and the Defendant later implicated Mr. Sanders. However, the Defendant
offered no explanation for how these men were able to get inside his truck on these
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occasions. The Defendant indicated to Sergeant Postiglione that seven women had been
murdered in total and that it was possible DNA evidence from each of these victims may
be found inside his truck. The Defendant averred that he had to follow instructions from
these men because they threatened his daughters.
At the February 1, 2018 hearing, the trial court found that these out-of-state
crimes, if “label[ed]” as such, had been established by clear and convincing evidence
relying on the Defendant’s admissions in his police statement. The trial court also
determined that admission of this evidence was not prohibited by Rule 404(b) because it
was “part of the overall picture here” to “complete [the] story.”
At the hearing on February 13, 2018, approximately two weeks before trial, the
trial court stated that it would revisit the issue if presented with evidence of how the
statement could be redacted so as not to confuse the jury. However, the record is silent
whether defense counsel ever raised the issue of redacting the statement again. Because
it does not appear from the record that this issue was revisited, the Defendant has waived
our consideration of the issue. 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.”)
Waiver notwithstanding, we cannot say on the record before us that the trial court
erred by admitting the evidence to provide contextual background to the jury. See
Mendenhall, 2013 WL 360525, at *62-63. Although the Defendant claimed that he did
not commit these other murders, he implicated himself in the killings and coverup, stating
that it was possible DNA evidence could be found in his truck from each victim he
mentioned during the interview. He also provided relevant details in his descriptions of
the other instances, such as electrical tape and Mr. Kiem’s alleged ability to drive a
vehicle. The Defendant admitted to having blood from the Indianapolis victim under his
fingernails at the time of his arrest. The Defendant further admitted to covering up for
these men, though claiming that he did so under duress.
The trial court found that it would be non-sensical to redact the Defendant’s police
statement to exclude references to the bad act evidence from other states. Again, we
observe that motive and intent were material issues and that exclusion of these references
from the Defendant’s police statement would have given the appearance that the
Defendant’s actions were committed at random and would have likely caused significant
jury confusion. Accordingly, we conclude that the trial court did not err in admitting this
evidence in order to establish the Defendant’s motive for killing prostitutes like this
victim, and by extension, to provide contextual background to the jury. See Mendenhall,
2013 WL 360525, at *62-63 (reaching similar conclusion in the Davidson County
solicitation case). In addition, because we conclude that evidence of Ms. Hulbert’s
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murder and proof from the solicitation case was properly admitted (as discussed below),
and because the trial court issued multiple instructions to the jury on how it was to
consider such evidence, any error in the admission of the Defendant’s references to the
out-of-state incidents was harmless.
3. Solicitation Proof. The Defendant submits that the proof from the solicitation
case was relevant “in the Davidson County homicide because the Defendant believed the
targets of the solicitations were conspiring to have the Defendant convicted of the murder
in Davidson County,” and for that same reason, “[t]he solicitations have no relevance to
the Wilson County case.” The Defendant further submits that the probative value of such
evidence was not outweighed by its prejudicial effect on the jury. We note that the
Defendant’s allegations of error regarding admission of proof from the Davidson County
solicitation case touch on three different areas—his presentation of an alibi defense,
testimony regarding his solicitation of Mr. McLaughlin to commit the murders, and the
recordings themselves.
During the car ride to the homicide office, the Defendant first implicated Mr.
Kiem and Mr. Powell as the responsible parties for the murders. In the Defendant’s
formal statement to Sergeant Postiglione and Detective Freeman, he again implicated Mr.
Kiem and Mr. Powell and, towards the end of his interview, Mr. Sanders. According to
both Sergeant Postiglione and Detective Freeman, these three men, as well as Mr. Kiem’s
mother who served as his legal guardian, were cooperative. DNA and fingerprint
samples were collected, and they were unable to find any evidence that these three
individuals participated in these crimes, as the Defendant claimed.
Also, the Defendant gave notice of alibi, stating that he intended to introduce his
log books to establish his alibi at trial. At trial, the log books were introduced in an effort
to prove the Defendant was not near Lebanon when the victim was murdered.
While the Defendant was incarcerated, Sergeant Postiglione received information
that the Defendant was trying to solicit Mr. McLaughlin “to kill some witnesses so they
could not testify against [the Defendant] at trial.” Thereafter, the police recorded two
conversations between the Defendant and Mr. McLaughlin, and those recordings were
played for the jury. In the recordings, the Defendant noted his need for an alibi, and he
agreed to pay $15,000 in exchange for having Mr. Kiem, Ms. Young, and Mr. Powell
killed. The Defendant indicated that he would contact Mr. McLaughlin’s uncle to repay
his debt. In addition, the Defendant referred to Ms. Young’s daughter’s being “a hooker
too, that goes to the three truck stops up there in Anderson.”
Ms. Young, Mr. Powell, and Mr. Sanders all testified at the Defendant’s trial in
this case. They provided details reflecting that none of these three men were involved in
the murders of the victim or Ms. Hulbert.
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“Any attempt by an accused to conceal or destroy evidence, including an attempt
to suppress the testimony of a witness, is relevant as a circumstance from which guilt of
the accused may be inferred.” State v. Maddox, 957 S.W.2d 547, 552 (Tenn. Crim. App.
1997) (quoting Tillery v. State, 565 S.W.2d 509, 511 (Tenn. Crim. App. 1978)).
“Generally, evidence of threats against witnesses attributed to the accused is probative as
being either (1) conduct inconsistent with the accused’s claim of innocence or (2)
conduct consistent with the theory that the making of such threats evinces a
consciousness of guilt.” State v. Austin, 87 S.W.3d 447, 477 (Tenn. 2002) (appendix).
The trial court, specifically, in its order denying the Defendant’s motion for new
trial, affirmed its ruling that the recordings from Mr. McLaughlin were admissible. The
trial court reasoned as follows:
The court does note that recordings of the [D]efendant[’s] talking to a
jailhouse informant were properly admitted at the trial. In these jailhouse
recordings, the [D]efendant denied seeing Richard Kiem in “years.”
Richard Kiem was one of the persons the [D]efendant had told law
enforcement had committed the murders, which occurred only months
earlier. The recordings also bore out a plan by the [D]efendant to kill State
witnesses in order to prohibit them from being able to testify against him at
trial. Evidence of an attempt to destroy or conceal evidence is relevant to
the guilt of the accused.
We agree.
The recordings were admissible to discredit the Defendant’s alibi defense, as well
as to reflect the Defendant’s consciousness of guilt. The Defendant claimed at trial that
his log books established his whereabouts when the victim was murdered and that he was
not in Lebanon on the day in the question. In addition, the Defendant told Sergeant
Postiglione that he did not commit these murders but that these other three men were in
fact the perpetrators. The Defendant made several attempts to obtain an alibi. The
recordings established that the Defendant believed the testimony of these three
individuals to be a threat to his chances of acquittal on these and other charges, and as
such sought to have them killed prior to trial in an effort to suppress their testimony. In
addition, the Defendant’s statement about Ms. Young’s daughter’s being “a “hooker too,”
who frequented truck stops, provided circumstantial evidence of the Defendant’s motive.
For all these reasons, the proof was admissible. See, e.g., Mendenhall, 2013 WL 430329,
*19 (reaching a similar conclusion regarding admission of the solicitation case proof in
the Davidson County murder prosecution).
The Defendant’s argument hinges on the fact that he believed these witnesses were
conspiring to have him convicted of only the murder in Davidson County. However, the
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record does not support his assertion in that regard. Nothing limits the relevance of this
proof solely to the murder of Ms. Hulbert. The Defendant implicated these three men in
all of the murders. Simply because the proof of the Defendant’s solicitation to commit
murder was relevant and admissible in the Davidson County murder trial does not mean it
cannot likewise be relevant and admissible here.
The trial court found that a material issue existed other than this conduct
conforming with a character trait and charged the jury multiple times on how it was to
consider such evidence. Because this evidence revealed the Defendant’s consciousness
of his own guilt, disclosed his motive of killing prostitutes at truck stops, and
contradicted his claim of alibi, we conclude that the recordings and proof his solicitation
to commit murder were properly admissible. The trial court did not abuse its discretion
by determining that the probative value of the evidence outweighed the danger of its
unfairly prejudicial effect. Thus, the Defendant is not entitled to relief as to this issue.
See, e.g,. State v. Damien Neely, W2010-01128-CCA-R3-CD, 2011 WL 3768918, at *14
(Tenn. Crim. App. Aug. 24, 2011) (finding that the trial court did not err in admitting
recordings of phone calls wherein the defendant sought to prevent the witnesses from
testifying against him because the recordings reflected the defendant’s consciousness of
guilt).
III. Continuance
The Defendant asserts that the trial court erred by denying his motion for a
continuance based upon the State’s failure to turn over surveillance video from the Pilot
truck stop until just weeks before trial. The Defendant cites the following circumstances
in support of his argument: the Defendant “was granted two pre-trial motions which
specifically requested copies of any video to be provided to” him; these recordings
contained “potentially exculpatory evidence showing the Defendant was not on the Pilot
property at the time of the crime”; the Defendant was not provided with “a reasonable”
amount of time for “his defense team to review the videos and potentially prepare to use
them in the trial”; and “[t]he [d]etective who had kept the recordings in his custody since
2007 testified during [m]otion [h]earings that he had viewed all of the recordings and did
not see [the] Defendant in them on the property of the Pilot [t]ruck [s]top from June 5
through June 7, 2007.” The Defendant surmises that denial of his motion to continue was
not harmless error. The State responds that the Defendant has failed to demonstrate
actual prejudice from the denial of his motion.
The trial court’s denial of a continuance will be reversed only if it appears that the
trial court abused its discretion to the prejudice of the defendant. State v. Odom, 137
S.W.3d 572, 589 (Tenn. 2004) (citing State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)).
A trial court abuses its discretion when denial of a continuance deprived the defendant of
a fair trial or upon showing that the result of the trial would have been different had a
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continuance been granted. Id. A defendant asserting that the denial of a continuance
constitutes a denial of due process or the right to counsel must establish actual prejudice.
Id. (citing Morris v. Slappy, 461 U.S. 1, 11-12 (1983)).
The Defendant raised the trial court’s denial of his motion for a continuance as an
assignment of error in his motion for new trial, specifically referencing therein only the
delayed disclosure of the video footage from the Pilot truck stop and not any of the other
grounds argued at the hearing on the motion. In its written order denying the motion for
new trial, the trial court ruled as follows:
The [D]efendant sought video from the Pilot [t]ruck [s]top where the
body of [the victim] was discovered. Several weeks before trial, the State
discovered that the video footage from Pilot [t]ruck [s]top had been
preserved, and disclosed said footage to the defense. The defense asserted
that additional time was needed to review the footage, and the [c]ourt
denied the request for continuance. The court notes that the trial had
already been significantly delayed due to prior requests for continuances by
the defense. In addition, Detective Kirk Whitefield testified at the trial that
there was no camera angle which depicted the area where [the victim’s]
body was found. The State introduced images from every camera angle,
permitting the jury to see the areas of the premises covered by camera
surveillance. Detective Kirk Whitefield also testified that he had watched
all of the video footage, and that neither the [D]efendant, nor [the victim],
nor the [D]efendant’s truck were seen on the camera footage. Additionally,
at the motion for new trial, which occurred almost [ten] months after the
trial, the [D]efendant did not produce any video footage which the
[D]efendant claimed would have been helpful to the [D]efendant at trial.
The [D]efendant has not established that he was prejudiced by the denial of
the continuance. This issue is without merit.
We agree with the rationale of the trial court.
This was the Defendant’s fourth motion for a continuance. The record reflects that
pretrial hearings in this case began as early as April 2013, following the completion of
the Defendant’s murder and solicitation cases in the Davidson County Criminal Court.
The trial court noted that the case was “old, old, old” and that trial had been “set now for
months.” The prosecutor explained that although Detective Whitefield provided a
property receipt from 2009, there was not “anything else in the file that [he] had”
reflecting possession of the recordings and that he did not know of the recordings until
speaking with Detective Whitefield in preparation for trial. The prosecutor further
indicated that he had already subpoenaed approximately fifteen to eighteen witnesses for
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trial, that at least five to six of those were from out-of-state, and that a change in
accommodations would need to be made if a continuance was granted.
Furthermore, Detective Whitefield testified at trial that he had reviewed the
surveillance footage from the relevant dates and did not see the Defendant or the victim
on the recordings. The angles from the recordings captured mostly inside the store and
very little of the outside area of the Pilot. The Defendant did not provide any evidence at
the motion for new trial hearing that more time to review the recordings would have
provided any additional helpful evidence; he likewise does not argue such on appeal.
Accordingly, he has not demonstrated that the denial of the continuance prejudiced him
to the extent that he was denied a fair trial or that he would have received a different
result otherwise. See, e.g., State v. Thomas Lee Hutchinson, No. E2012-02671-CCA-R3-
CD, 2014 WL 1423240, at *34 (Tenn. Crim. App. Apr. 11, 2014) (finding no error when
the defendant sought a continuance on the first day of his trial to review the prosecution’s
late disclosure of photographs of the defendant’s clothing when the defendant had the
opportunity to thoroughly cross-examine the TBI agent responsible for testing the items
of clothing depicted in the photographs, and when the defendant had not asserted that he
would have discovered any additional information about the photographs had he been
granted a continuance), aff’d, 482 S.W.3d 893 (Tenn. 2016); State v. Malcolm H. Jones,
No. E2011-02082-CCA-R3-CD, 2012 WL 6176770, at *6 (Tenn. Crim. App. Dec. 11,
2012) (affirming the denial of a motion to continue on the eve of trial asking for an
opportunity to locate and interview a substantive witness when the defendant had still
failed to locate the witness three months after trial and show that the witness would have
provided favorable information to the defense). Therefore, we conclude that the trial
court did not abuse its discretion in denying the Defendant’s motion to continue.
IV. Sufficiency
The Defendant challenges the sufficiency of the evidence supporting his
convictions. Specifically, the Defendant argues that the “[a]dmissible factual evidence
from the scene was insufficient for a reasonable jury to conclude beyond a reasonable
doubt that the Defendant accomplished a premeditated and intentional killing of another
and [a]buse of a [c]orpse.” According to the Defendant, “the only admissible evidence
include[d] a redacted version of the interrogation, unidentifiable fragments of the bullet
removed from the victim’s head, and one-fourth of a little-finger print”; the Defendant
surmises that this evidence alone was insufficient to support his convictions. The
Defendant also mentions that no DNA evidence was found on the victim or on other
evidence found at the scene. The State responds that the evidence was sufficient.
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An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.
The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).
Premeditated first degree murder is defined as “[a] premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts intentionally
“when it is the person’s conscious objective or desire to engage in the conduct or cause
the result.” Tenn. Code Ann. § 39-11-302(a).
Premeditation is an act done after the exercise of reflection and
judgment. Premeditation means that the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose to kill pre-
exist in the mind of the accused for any definite period of time.
Tenn. Code Ann. § 39-13-202(d) (internal quotations omitted).
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The element of premeditation only requires the defendant to think “about a
proposed killing before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d
530, 541 (Tenn. 1992). The presence of premeditation is a question for the jury and may
be established by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d
at 660. Our supreme court has held that factors determining the existence of
premeditation include, but are not limited to, the following: the use of a deadly weapon
upon an unarmed victim, the particular cruelty of the killing, declarations by the
defendant of an intent to kill, evidence of procurement of a weapon, preparations before
the killing for concealment of the crime, destruction or secretion of evidence of the
killing, and calmness immediately after the killing. See State v. Davidson, 121 S.W.3d
600, 614 (Tenn. 2003); Bland, 958 S.W.2d at 660. Additional factors cited by this court
from which a jury may infer premeditation include the lack of provocation by the victim
and the defendant’s failure to render aid to the victim. See State v. Lewis, 36 S.W.3d 88,
96 (Tenn. Crim. App. 2000).
With respect to the abuse of a corpse charge, a person “without legal privilege”
commits the offense by physically mistreating a corpse “in a manner offensive to the
sensibilities of an ordinary person.” Tenn. Code Ann. § 39-17-312(a)(1).
The State aptly notes that even if certain evidence is deemed inadmissible, this
evidence is nonetheless included in the sufficiency analysis under State v. Longstreet,
619 S.W.2d 97, 101 (Tenn. 1981). See also State v. Ramie Anderson, No. M2005-
02086-CCA-R3-CD, 2006 WL 2380604, at *9 (Tenn. Crim. App. Aug.17, 2006)
(interpreting Longstreet as “mandat[ing] that when conducting a sufficiency of the
evidence review following a finding of erroneous admission of some evidence, the
appellate court should conduct the sufficiency review based on the inclusion of the
erroneously admitted evidence”). However, as discussed above, we find no error in the
trial court’s admission of the complained-of evidence.
The evidence in this case was sufficient to prove that the Defendant solicited the
victim for sex, that he shot her in the head with his .22 caliber rifle, and that he dumped
her nude body in the garbage can at the Pilot truck stop in Lebanon. The victim was
placed feet first into the trash can, and trash was placed on top of her. It appeared as
though she had been positioned there in an effort to create an inference that she was trash.
In the trash found placed on her back was a Taco Bell box with the Defendant’s
fingerprint on it. The Defendant claims that Agent Fleenor testified that the “points
found on the partial print could possibly be found on [sixty-five percent] of the
population.” In fact, Agent Fleenor testified that there are three basic fingerprint pattern
types: loops, arches, and whorls and that the Defendant’s fingerprint type was a “right-
slant loop.” Agent Fleenor stated that approximately sixty-five percent of the population
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have a loop pattern; she did not testify that sixty-five percent of the population had the
Defendant’s actual fingerprint.
When the Defendant was apprehended the following month, the Defendant gave a
police statement, in which he attempted to blame three other men for the killings and
maintained that they coerced him into disposing of evidence. According to the
Defendant, these three men followed him throughout his interstate travels, showing up at
truck stops where he happened to stop, so that they could have sex with and murder
prostitutes inside his truck and pin the murders on him. In the course of the interview,
the Defendant admitted to being at the Pilot truck stop during the relevant time frame and
claimed that Mr. Powell and Mr. Kiem approached him while he was there. He asserted
that he went inside the truck stop, and when he returned, the two men were gone;
however, the surveillance footage did not show the Defendant inside the store. The
Defendant said that he suspected something might have happened while he was inside the
truck stop because he found blood inside his truck on this occasion. He admitted to
cleaning up the blood but professed that he did not see a body. The Defendant later
implicated Mr. Sanders as well. However, Mr. Powell, Mr. Kiem, and Mr. Sanders were
determined to have solid alibis. Moreover, the jury, as was its prerogative, chose not to
accredit the Defendant’s notations in his log that he stayed in Pioneer, Tennessee, on the
evening of June 5, 2007, and was not in the vicinity of the truck stop in Lebanon.
Agent Scott testified that after comparing the bullet removed from the victim to
the one removed from the Davidson County victim, he was conclusively able to state that
the bullet removed from the victim was fired through the same gun as the bullet removed
from Ms. Hulbert and that the bullet from Ms. Hulbert was fired by the Defendant’s .22-
caliber rifle. The Defendant acknowledged that he kept the gun in his truck. The
Defendant’s employer testified that he warned the Defendant to stay away from “lot
lizards,” or prostitutes, at truck stops, and the Defendant replied that he “just shoot[s]”
them. The Defendant mentioned that Ms. Young’s daughter was “a hooker, too” that
frequented three truck stops in the Illinois area. After the Defendant was incarcerated, he
sought to conceal his crimes by soliciting another inmate to kill Ms. Young, Mr. Kiem,
and Mr. Powell so they could not testify against him at trial. We conclude that, from all
this evidence, a reasonable juror could conclude that the Defendant murdered the victim
with premeditation and abused her corpse.
V. Consecutive Sentencing
The Defendant argues that the trial court erred in its imposition of consecutive
sentencing; the State disagrees. A trial court may order multiple offenses to be served
consecutively if it finds by a preponderance of the evidence that a defendant fits into at
least one of the seven categories in Tennessee Code Annotated section 40-35-115(b).
“Any one of these grounds is a sufficient basis for the imposition of consecutive
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sentences.” State v. Pollard, 432 S.W.3d 851, 862 (Tenn. 2013) (citing State v. Dickson,
413 S.W.3d 735, 748 (Tenn. 2013)). Additionally, when the imposition of consecutive
sentences is based on application of the dangerous offender criterion, the court must also
find “that the terms imposed are reasonably related to the severity of the offenses
committed and are necessary in order to protect the public from further criminal acts by
the offender.” State v. Wilkerson, 905 S.W.2d 938, 939 (Tenn. 1995); see also Pollard,
432 S.W.3d at 863-64; State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
Furthermore, our supreme court has held that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to consecutive sentencing
determinations.” Pollard, 432 S.W.3d at 860. This court must give “deference to the trial
court's exercise of its discretionary authority to impose consecutive sentences if it has
provided reasons on the record establishing at least one of the seven grounds listed in
Tennessee Code Annotated section 40-35-115(b).” Id. at 861. “So long as a trial court
properly articulates reasons for ordering consecutive sentences, thereby providing a basis
for meaningful appellate review, the sentences will be presumed reasonable and, absent
an abuse of discretion, upheld on appeal.” Id. (citing Tenn. R. Crim. P. 32(c)(1); State v.
Bise, 380 S.W.3d 682, 705 (Tenn. 2012)). However, when imposing consecutive
sentences, the court must still consider the general sentencing principles that each
sentence imposed shall be “justly deserved in relation to the seriousness of the offense,”
“no greater than that deserved for the offense committed,” and “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.
§§ 40-35-102(1), -103(2), -103(4); State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
Here, from our review of the transcript, the trial court imposed consecutive
sentences at the sentencing hearing based solely upon the dangerous offender criterion:
“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[.]” See Tenn. Code Ann. § 40-35-115(b)(4). The Defendant, nonetheless, in his
motion for new trial argued that trial court erred by relying on the extensive criminal
history factor in subsection (b)(2), in addition to the dangerous offender criterion. See
Tenn. Code Ann. § 40-35-115(b)(2) (“The defendant is an offender whose record of
criminal activity is extensive[.]”). The trial court, in its order denying the Defendant’s
motion, found that the extensive criminal history factor “was appropriately applied.”
Again, only one consecutive sentencing factor needs to exist to support the imposition of
consecutive sentences.
A. Extensive Criminal History. Initially, on appeal, the Defendant argues that the
trial court erred by considering his prior convictions from the Davidson County murder
and solicitation cases in issuing its decision to impose consecutive sentencing in the
Wilson County case because the Wilson County case occurred first in time. However,
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the Defendant’s argument focuses on the definition of prior convictions and relates to the
statutes dealing with offender classification, not the statute governing consecutive
sentencing. See Tenn. Code Ann. §§ 40-35-106(b) (defining prior conviction, for the
purpose of sentencing a defendant as Range II, multiple offender, as “an offense
occurring prior to the commission of the offense for which the defendant is being
sentence); -120(e)(1) (providing instructions for determining the number of prior
convictions to establish “repeat violent offender” status, using the language “before
committing” a designated offense).
The trial court found that the Defendant was an offender whose record of criminal
activity was extensive. In so concluding, the trial court reasoned as follows:
Not only has the [D]efendant been convicted of a number of serious felony
offenses prior to this sentencing hearing, but even if he had not, the factor
does not require conviction in order for the trial court to find that the
[D]efendant has extensive record of criminal activity. The court found
evidence, in form of the [D]efendant’s own videotaped statement, of
extensive criminal activity prior to his conviction.
The trial court correctly noted that although the Defendant had in fact been
convicted in the two Davidson County cases, convictions were not required for this factor
to be applicable. See State v. Koffman, 207 S.W.3d 309, 324 (Tenn. Crim. App. 2006).
Also, we observe that nothing in the consecutive sentencing statute requires that the
offense for which the Defendant is being sentenced have occurred subsequently to the
offense resulting in the prior conviction. See State v. Antwain Green, No. M2013-00167-
CCA-R3-CD, 2013 WL 5783740, at *3 (Tenn. Crim. App. Oct. 28, 2013). Here, the trial
court relied upon the Defendant’s statement during his interview in imposing this factor;
the Defendant’s statements therein implicated him in multiple killings and illegal acts.
Once incarcerated, the Defendant sought to solicit a jailhouse inmate to murder three of
the State’s witnesses. The records supports the trial court’s findings, and the trial court
did not abuse its discretion by applying this factor.
B. Dangerous Offender. The Defendant further submits that consecutive
sentencing was unwarranted under the dangerous offender criterion in Tennessee Code
Annotated section 40-35-115(b)(4). According to the Defendant, the State failed to
establish, pursuant to Wilkerson, that consecutive sentencing was necessary to protect the
public from further criminal acts by the Defendant. See 905 S.W.2d at 939. The
Defendant explains, “Given [his] age and life expectancy, it is an almost impossible event
that he would be released from confinement in the future.”
Here, in classifying the Defendant as a dangerous offender, the trial court noted,
first, that in the Davidson County solicitation to commit murder case, the trial judge
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ordered all three ten-year sentences to be served consecutively to one another; next, that
the same trial judge subsequently ran the life sentence for the Davidson County first
degree murder conviction consecutively to the previously imposed effective thirty-year
sentence; that both times the trial judge relied upon the dangerous offender criterion; and
that the trial court agreed with the Davidson County trial judge’s findings in that regard.
See Mendenhall, 2013 WL 430329, at *30-31; Mendenhall, 2013 WL 360525, at *66-68.
The trial court then noted that it was “necessary” for the court to consider the Wilkerson
factors in its ruling.
The trial court remarked that the record was “replete with instances” establishing
that the Defendant was a dangerous offender whose behavior indicated little or no regard
for human life and no hesitation about committing a crime in which the risk to human life
was high. The trial court found that it was “absolutely essential” to protect the public
from further criminal conduct by the Defendant. The trial court described the Defendant
as “a serial killer, who like[d] to kill prostitutes,” killing two women in this state, as well
as killing women in other states for which he had charges pending. The trial court
explained further,
And obviously given his cavalier attitude about how to treat people, human
beings, whatever their vocation is, whatever their station in life is, this man,
the severity of it, as I said a moment ago, he’s a serial killer. And so,
accordingly, I find, using the factors outlined in Wilkerson, . . . I agree that
the [D]efendant’s behavior exhibits little or no regard for human life and
that those sentences here, the life plus two shall run consecutive to the
[thirty] years plus the life sentence in Davidson County. All to run
consecutive.
We conclude that the trial court’s findings are supported by the record and that the
trial court gave due consideration to the Wilkerson factors. The victim was shot in the
head, and her nude body was dumped in a trash can at the back of a truck stop. The
Defendant casually told his employer, referring to prostitutes, “I just shoot them.” This
was the Defendant’s second murder conviction for such an offense, and the trial court
aptly noted that other states had murder charges pending against the Defendant for
similar offenses. The Defendant can indeed be classified as a serial killer. Moreover, the
Defendant solicited the murder of three State’s witnesses from inside a jail cell in an
effort to cover up his crimes. We agree with the trial court that the imposition of
consecutive sentences, given the severity of the Defendant’s crimes, is “absolutely
essential” to protect the public from further criminal conduct by the Defendant.
Accordingly, we conclude that the trial court did not abuse its discretion by classifying
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the Defendant as a dangerous offender. The trial court’s consecutive sentencing decision
is affirmed.6
CONCLUSION
For the foregoing reasons, the judgments of the trial court are affirmed.
______________________________
D. KELLY THOMAS, JR., JUDGE
6
The Defendant also argues that he should get jail credit on his sentence since his August 14, 2007
indictment date in this case. The trial court found that this issue was rendered moot by its decision to
impose consecutive sentencing. We are constrained to agree.
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