State of Tennessee v. Perry Avram March , 2011 Tenn. Crim. App. LEXIS 63 ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 23, 2010 Session
STATE OF TENNESSEE v. PERRY AVRAM MARCH
Direct Appeal from the Criminal Court for Davidson County
No. 2004-D-3113 Steve Dozier, Judge
No. M2007-00053-CCA-R3-CD - Filed January 27, 2011
Following a jury trial, Defendant, Perry Avram March, was convicted of second degree
murder, a Class A felony, abuse of a corpse, a Class E felony, and destruction of evidence,
a Class C felony. The trial court sentenced Defendant as a Range I, standard offender, to
twenty-five years for his murder conviction, two years for his abuse of a corpse conviction,
and five years for his destruction of evidence conviction. The trial court ordered Defendant
to serve his sentences for his Class C and Class E felonies consecutive to his sentence for his
murder conviction, and his murder conviction in this case consecutive to his sentence in case
no. 2005-D-2854 of twenty-four years for his conviction of conspiracy to commit first degree
murder, for an effective sentence of fifty-six years. On appeal, Defendant argues that the
trial court erred in admitting into evidence (1) his statements to Detective Postiglione on
August 12, 2005; (2) his taped conversations with Nathaniel Farris while Defendant was
housed in the Davidson County Jail awaiting trial; (3) Leigh Reames’ testimony concerning
Defendant’s prior conduct; and (4) the draft of a novel written by Defendant. Defendant also
contends that the State’s prosecution of the offenses of abuse of a corpse and tampering with
evidence are time-barred and, alternatively, that the tolling of the statute of limitations in
criminal cases violates his constitutional right to travel and denies him equal protection under
the law. Defendant submits that the cumulative effect of these errors denied him his
constitutional right to due process. After a thorough review we affirm the judgments of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.
John E. Herbison, Nashville, Tennessee; William D. Massey and Lorna S. McClusky,
Memphis, Tennessee, for the for the appellant, Perry Avram March.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Tom Thurman, Assistant District
Attorney General; and Katrin Miller, Assistant District Attorney General, for the appellee,
the State of Tennessee.
OPINION
I. Background
The murder victim in this case was Defendant’s wife, Janet March. Carolyn Levine,
the victim’s mother, testified that Defendant and the victim met while they were both
students at the University of Michigan. The couple married on June 14, 1987, and were
married when the victim disappeared on August 15, 1996. Ms. Levine identified Defendant
at trial as her daughter’s husband. Ms. Levine said that the victim, who was thirty-three years
old when she disappeared, was five feet, three or four inches tall and weighed approximately
one hundred pounds. At trial, Ms. Levine identified the victim from a photograph.
After graduation, Defendant and the victim moved to Nashville so that Defendant
could attend Vanderbilt Law School. The Levines paid Defendant’s law school tuition and
supported the couple for three years while Defendant was in school. After graduation,
Defendant joined a Nashville law firm. In July 1995, the victim and Defendant moved into
a newly built house located at 3 Blackberry Road in Forrest Hills.
Ms. Levine said that the victim’s son, Samson March, was born on August 27, 1990,
and her daughter, Tzipora March, was born on May 17, 1994. Ms. Levine described the
victim as a “very attentive” and “very nurturing” mother. Ms. Levine and the victim talked
on a daily basis, and the victim never left town without providing Ms. Levine her itinerary
and other pertinent information concerning the children’s care and schedules.
Ms. Levine stated that she first became aware that the victim and Defendant were
undergoing marital problems in 1993, but she did not feel the problems were insurmountable.
Ms. Levine said that she had a good relationship with Defendant, and both Defendant and
the victim came to her individually for advice. The couple went to marriage counseling in
1991 or 1992, and Defendant began to see a psychiatrist. The victim joined Defendant
during his individual counseling sessions in 1996.
Ms. Levine said that the couple’s situation deteriorated further. Defendant told Ms.
Levine in the spring of 1996 that he was afraid the victim was going to divorce him and take
the children away from him. The victim and Defendant began arguing in front of the
children, and Ms. Levine told Defendant that he needed to leave the residence because the
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children were upset by the couple’s arguments. Defendant found a house to rent, but he did
not immediately move out of the marital residence. Ms. Levine said, however, that
Defendant stayed in a hotel for approximately six to eight nights before the victim
disappeared.
Ms. Levine planned to accompany the victim to her appointment with a divorce
attorney on Friday, August 16, 1996. However, around midnight on August 15, 1996,
Defendant called the Levines and told them that the victim had left the house after an
argument. Ms. Levine said that to her knowledge, the victim had never done that before.
Ms. Levine told Defendant to call her when the victim returned.
Ms. Levine talked to Defendant several times by telephone on August 16, 1996.
During one conversation, Defendant said that one of his son’s schoolmates had arrived for
a play date, and Ms. Levine instructed Defendant to let the child play with Samson.
Defendant told Ms. Levine that he had explained to the children and the children’s part-time
babysitter that the victim had left early that morning to work on a large art project.
Defendant told Ms. Levine that the victim had taken two small shopping bags, a small,
gray suitcase, her passport, and $1,500 with her when she left. The Levines drove to the
airport to search for the victim’s vehicle but were unsuccessful. Defendant initially said that
the victim was wearing khaki shorts and a navy short-sleeved, collarless top when she left,
but later told Ms. Levine that the victim had changed into blue jeans before leaving.
Defendant said that the victim had handed him a typewritten note entitled “Janet’s 12-
day vacation” when she left which contained a list of chores for Defendant to do while the
victim was gone. Ms. Levine stated that the victim often made lists, but they were always
hand-written. When she helped Defendant put the children to bed on August 16, 1996, Ms.
Levine noticed a yellow-lined legal pad by Defendant’s computer in his office which
contained a handwritten list of similar chores. Ms. Levine said that the words “two weeks”
in Defendant’s handwriting were circled at the top of the list. Ms. Levine stated that the
victim never used capital letters in her notes, and she dated the notes at the top of the page.
Ms. Levine stated that the typed note entitled “Janet’s 12 day vacation” used capitalizations
and was dated at the bottom.
Ms. Levine initially believed Defendant’s explanation for the victim’s absence. By
Sunday night, however, she grew increasingly concerned because the victim had never left
the children before without telling someone where she was going. The Levines wanted to
contact the police, but Defendant and his brother, Ron March, convinced them to wait for
twelve days. Ms. Levine agreed because she still believed the victim would return, and Ms.
Levine did not want to embarrass her by getting the police involved.
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The victim had planned a birthday party for her son for Sunday, August 25, 1996, and
the invitations had been mailed before the victim’s disappearance. Ms. Levine found it
“unbelievable” that the victim would not return for her son’s birthday party which went on
as planned. Ms. Levine stated that Samson started school on the following Monday, August
26, 1996, and the victim had planned to take cupcakes to her son’s classroom on his birthday
on August 27, 1996. Ms. Levine found it “inconceivable” that the victim would miss these
events in her child’s life.
Ms. Levine said that Defendant’s father, Arthur Marsh, who lived in Mexico, came
to Nashville to attend Samson’s birthday party, but he left the next day for Chicago.
Defendant explained, “My dad has a big mouth, he tells everything.” Ms. Levine said that
around this time, Defendant also said, “[T]hat f___ing Janet has ruined my life.” Ms. Levine
was “shocked and horrified” because Defendant had never used this kind of language in front
of her before.
The Levines told the police about the victim’s disappearance on August 29, 1996.
The victim’s grey Volvo was found backed into a parking space at the Brixworth Apartments
on September 7, 1996. At trial, Ms. Levine identified the vehicle as the victim’s from a
photograph. The victim’s purse, three dresses, two pairs of shorts and a child’s car seat were
in the vehicle. A gray suitcase which Defendant told Ms. Levine the victim was carrying
when she left was not in the car.
Ms. Levine stated that Defendant’s demeanor and attitude changed after the victim’s
vehicle was found. Ms. Levine was concerned about the children during this period, and she
and Defendant spoke with a child psychologist for guidance in answering the children’s
questions about the victim. Defendant was angry, however, when Ms. Levine spoke to one
of Samson’s teachers, and he told Ms. Levine not to call the school again.
Ms. Levine stated that Defendant took the children to Chicago for Rosh Hashana on
Saturday, September 14, 1996. Arthur March remained in Nashville because Defendant said
that it was too expensive for his father to travel to Chicago. Defendant and the children
returned home on September 15, 1996, but Defendant would not let Ms. Levine see the
children. Defendant later moved to Chicago with the children. Ms. Levine said that she next
saw the children in Chicago in December 1996, after she and Mr. Levine petitioned the court
for grandparent visitation rights. During a second court proceeding concerning visitation,
Ron March, who represented Defendant, informed the trial court that Defendant had moved
to Mexico with the children. Ms. Levine testified that she and her husband, as well as the
trial judge and the children’s guardian ad litem, were all surprised by this announcement.
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Ms. Levine said that a memorial service for the victim was held on November 17,
1996, but Defendant did not attend. Ms. Levine stated that the victim primarily used a Visa
credit card, and Defendant used a MasterCard credit card. Neither credit card was used by
the victim after her disappearance, but Defendant used both the Visa and the MasterCard
after August 16, 1996. Ms. Levine stated that Defendant owned a mountain bike at the time
of the victim’s disappearance and described Defendant “as an avid mountain biker.”
Ms. Levine said that Defendant moved his personal property to Chicago, and the
victim’s personal items were stored in the garage of the Blackberry Road house after it was
sold. Ms. Levine began to sort through the items in early 1997. One of the movers found
an envelope with the logo of a company with whom the victim did business, and with the
victim’s name handwritten on the flap of the envelope. Ms. Levine stated that the envelope
contained two typewritten letters. After briefly reading a portion of one of the letters, Ms.
Levine called the police.
John Ritchie testified that he worked for a cabinet company in August 1996. On
August 15, 1996, he and John McAllister installed two butcher block counter tops in the
victim’s residence. The two men arrived at the victim’s house at approximately 4:00 p.m.
Mr. Ritchie said that a Volvo and a Jeep were parked in the driveway. Mr. Ritchie talked
with the victim, who knew Mr. Ritchie’s family, while the counter tops were being installed.
The victim asked the men to also tighten the kitchen faucet, and Defendant, who had entered
the kitchen through the back door, handed Mr. McAllister a pair of pliers.
Deneane Beard testified that she cleaned the March residence from 1994 until 1996
while she was in nursing school. Ms. Beard said that she normally worked one day a week,
either in the morning or in the afternoon, depending on her school schedule. The victim left
Ms. Beard handwritten notes outlining the chores that needed to be done that day. Ms. Beard
was scheduled to work at the March residence on Friday, August 16, 1996. Defendant called
Ms. Beard before she left for work to find out what time she would arrive at the residence
and told Ms. Beard that the victim had gone to California on a business trip. Ms. Beard
arrived at the house between 8:00 a.m. and 8:30 a.m. and found that the house had already
been cleaned.
Ms. Beard stated that she continued to work for Defendant until approximately
September 16 or 17, 1996. On her last day, police officers knocked on the front door. Ms.
Beard let the officers into the house and then continued cleaning. Ron March, who was at
the house that day, asked her to “hurry things up.” Mr. March had a telephone conversation
and then told Ms. Beard she should leave. Mr. March escorted Ms. Beard to her car while
holding on to her arm. Ms. Beard said that Arthur March was not present that day although
she had seen him at the house before.
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Marissa Moody testified that in 1996 her son attended the same preschool as Samson
March. On August 15, 1996, Ms. Moody and the victim arranged a play date for the two
boys for the following day. Ms. Moody arrived at the victim’s house on August 16, 1996,
between 9:30 a.m. and 10:00 a.m., and Samson answered the door. Ms. Moody did not see
the victim, but Defendant came out of his office in response to the door bell. Ms. Moody
said that Defendant was surprised because he did not know about the play date. Ms. Moody
stated that a rolled up oriental rug was in the middle of the floor in the entry hall, and Samson
was jumping up and down on the rug. Ms. Moody picked her son up at approximately 2:00
p.m., but Defendant was not home.
Laura Zinker testified that she met the victim in 1988, and the two women became
close friends. The victim visited Ms. Zinker in the summer of 1996 and told Ms. Zinker
about her marital problems. On cross-examination, Ms. Zinker said that she never saw any
sign of physical abuse, but on redirect examination, Ms. Zinker stated that she had observed
instances where Defendant verbally abused the victim. Ms. Zinker said that Defendant was
“very critical” of the victim and demeaning of her intelligence.
Laurel Rummel testified that she had known the victim since she was eight years old.
Ms. Rummel spoke to the victim by telephone on the morning of August 15, 1996, and the
victim sounded hurried and “a little distracted.” Defendant called Ms. Rummel at
approximately 10:00 p.m. on August 15, 1996, and told Ms. Rummel that the victim had
packed a bag and left the house. Ms. Rummel had previously made an appointment to meet
Defendant on August 16, 1996, to discuss the purchase of carpeting for his new law office.
Ms. Rummel stated that Defendant kept the appointment but “was very troubled, very
worried about where [the victim] was, when she would come home, and he seemed pale and
shaken up.”
Diane Saks testified that she had known the victim all of Ms. Saks’ life. She
described the victim as a protective and loving mother. Ms. Saks said that Defendant called
her after he moved to Chicago. During one conversation, Defendant asked Ms. Saks if she
thought he had killed the victim. Ms. Saks was surprised by the question. Defendant asked
Ms. Saks if she could believe that he put the victim in the back of his vehicle, leave the
children home alone while they were sleeping, and then return and pretend “like nothing ever
happened.” Ms. Saks’ husband took the receiver from her and asked Defendant not to call
any more.
Dr. Thomas W. Campbell, a psychiatrist, testified that Defendant was his patient from
November 1992 until March 1995, and then again from July 1996 to September 1996. Dr.
Campbell said that the victim accompanied Defendant to some of the 1996 counseling
sessions, and he last met with both Defendant and the victim on approximately August 5,
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1996. Dr. Campbell described the session as “volatile,” and he suggested that Defendant and
the victim try a trial separation “so they could calm down.”
On cross-examination, Dr. Campbell said that in one of the last sessions, the victim
asked Defendant during a heated exchange if he had told Dr. Campbell about the incident at
his former law firm. Dr. Campbell stated that the incident “was not a big deal on
[Defendant’s] radar screen,” but the victim was very angry when she asked the question. On
redirect examination, Dr. Campbell stated that Defendant told him that he had to leave his
former law firm because of conflict with someone in the firm. Defendant did not tell Dr.
Campbell any of the details surrounding the incident.
Dr. Stacey Ann Goodman testified that she met the victim and Defendant at the
University of Michigan in 1981, and she and another friend arranged a date between
Defendant and the victim. Dr. Goodman and the victim became roommates in the spring of
1982. Dr. Goodman stated that she frequently rode with the victim in the victim’s vehicle
and that she never saw the victim back into a parking space. Dr. Goodman moved to
Nashville in 1987 for her residency at Vanderbilt University Medical Center and resumed her
friendship with the victim and Defendant. Dr. Goodman was interviewed by the media about
the victim’s disappearance in January 1997. Defendant telephoned Dr. Goodman from
Chicago either the day of or the day after the interview. Dr. Goodman stated that Defendant
was very angry. He screamed and swore at her and told Dr. Goodman that he would “get”
her when he came to Nashville. Dr. Goodman said that she was scared and upset after the
telephone conversation, and she filed a report with the Metro Nashville Police Department
about Defendant’s threat.
Ella Goldshmid testified that she worked as a part-time babysitter for the victim’s
children for approximately six years before the victim’s disappearance. The victim always
notified Ms. Goldshmid when she planned to travel, and Ms. Goldshmid would help Ms.
Levine care for the children in the victim’s absence. Ms. Goldshmid said that when the
victim went away, she left “very explicit instructions” concerning the children’s care and
schedules which were either handwritten or dictated to Ms. Goldshmid to write down.
Ms. Goldshmid said that in August 1996 she worked for the victim on Wednesdays
and Fridays. The victim was not acting like herself when Ms. Goldshmid arrived at the
victim’s residence on August 14, 1996. Ms. Goldshmid described the victim’s face as “grey,
stone-like.” Ms. Goldshmid said that the victim would usually chat with her for a few
minutes after she arrived. On August 14, 1996, however, the victim told Ms. Goldshmid that
she was very busy and needed to work on the computer. The victim went into her office and
closed the door, and Ms. Goldshmid did not see the victim for the remainder of the day. Ms.
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Goldshmid said that the victim did not normally use the computer, and it was the first time
Ms. Goldshmid had ever seen the victim work on the computer all day.
Ms. Goldshmid arrived for work on August 16, 1996, between 9:30 a.m. and 10:30
a.m. Defendant told Ms. Goldshmid that the victim had flown to California to visit her
brother, Mark Levine. Ms. Goldshmid stated that it was unusual for the victim to leave town
without telling her. Ms. Goldshmid said that a rolled up rug was blocking the door leading
to the kitchen. She did not know where the rug came from, and she never saw it again after
that day. Ms. Goldshmid last stayed with the March children on September 8, 1996.
Defendant did not tell Ms. Goldshmid that he was moving to Chicago with the children.
Tim Mason, a detective with the Metro Nashville Police Department, testified that he
was notified on September 7, 1996, that the victim’s Volvo had been found in the parking
lot of the Brixworth Apartments. The locked Volvo was backed into a parking spot at the
rear of the apartment complex approximately two hundred yards from the main road.
Detective Mason identified the victim’s vehicle from a photograph at trial.
David Miller testified that in 1996 he was a detective with the Metro Nashville Police
Department assigned to the investigation of adult missing persons. Detective Miller said that
Carolyn and Lawrence Levine came to the police department on August 29, 1996, to report
the victim’s disappearance. Detective Miller performed routine searches of area hospitals
and other locations, the victim’s credit cards, and the victim’s bank accounts, but he did not
discover any information concerning the victim’s whereabouts. Detective Miller took
Defendant’s statement on September 10, 1996, at the Levines’ residence. Detective Miller
stated that Defendant appeared nervous. Detective Miller advised Defendant of his Miranda
rights and told him that he had the right to refuse to consent to a search of his residence.
Defendant told Detective Miller that he was an attorney and understood his Miranda and
Fourth Amendment rights. Defendant wrote out his statement by hand. In his statement,
Defendant said that on August 15, 1996, he and the victim had a conversation after the
children had gone to bed. Defendant stated that the victim grew “frustrated” and “upset,” but
he remained calm. Defendant called a local hotel and booked a room, but the victim said that
“she had a different idea tonight.” The victim typed something on the computer and then
went upstairs. When she came downstairs, she had three small bags with her. The victim
handed Defendant her “12-Day Vacation Note” and told him to sign it which Defendant did.
The victim said something like “Your turn, see ya,[sic],” and left the house.
On September 16, 1996, Detective Miller told Defendant’s attorney that he intended
to execute a search warrant for Defendant’s computer on the following day. Detective Miller
arrived at Defendant’s residence on September 17, 1996 and discovered that the hard drive
from Defendant’s computer had been ripped out.
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Brad Corcoran, a detective with the Metro Nashville Police Department, testified that
he processed the victim’s Volvo. The exterior of the Volvo was covered with dirt, dust, and
pollens, there were cobwebs in the wheels, and rust was present on the disk brakes, all of
which indicated that the Volvo had not been moved for a significant period of time. A purse
containing the victim’s identification was found in the pocket of the left front door, and a
child’s car seat was in the backseat behind the driver’s seat. A black suitcase containing
clothes and a canvas bag containing toiletry items were also in the Volvo. The front
passenger seat was pushed back, and the driver’s seat was positioned closer to the steering
wheel. A fifty-dollar bill was in the glove compartment, and the purse contained eleven
dollars in cash, various credit cards, and the victim’s passport. A pair of white shoes was on
the floor in front of the driver’s seat. Detective Corcoran also processed Defendant’s Jeep
on September 12, 1996, and found two fibers and a hair in the backseat. Detective Corcoran
lifted latent fingerprints from both vehicles. On cross-examination, Detective Corcoran said
that the Jeep did not appear to have been cleaned before it was processed, but he detected an
order of some type of cleaner or disinfectant when he opened the rear door.
Kim Garbler testified that she was an employee of the private investigation company
that was hired by Mr. Levine on September 7, 1996, to assist in the investigation of the
victim’s disappearance. Ms. Garbler interviewed Defendant at the beginning of the
investigation and thought it unusual that he referred to the victim in the past tense. Ms.
Garbler began interviewing the residents of Brixworth Apartments to determine if anyone
had seen the Volvo in the apartment complex’s parking lot. Ms. Garbler stated that
Defendant was angry when he learned what she was doing. Defendant telephoned Ms.
Garbler and demanded that she fax him a list of everyone she had spoken to and what they
had said by the end of the day. Defendant then hung up the telephone.
Peter Rodman, a flight attendant for an international airline company, testified that he
lived at Brixworth Apartments in 1996, but he was frequently out of town. Mr. Rodman said
that he returned home at approximately 1:00 a.m. on August 16, 1996. As he pulled into the
parking lot, Mr. Rodman noticed that a man, wearing a jogging suit, was slowly walking a
bicycle down the middle of the parking lot. Mr. Rodman parked his vehicle and opened the
back door to retrieve some items. When he turned around, he noticed that the man was
“frozen in place” and appeared shocked. Mr. Rodman said that he was approximately ten to
twelve feet from the man, and the parking lot was well lit. Mr. Rodman saw Defendant’s
photograph in a news article about the victim’s disappearance in February 1997. Mr.
Rodman called Detective Mike Smith with the Metro Nashville Police Department and told
him about the incident. Mr. Rodman identified Defendant at trial as the man with the bicycle.
Travis West, a manager for Cumberland Transit, a bicycle shop in Nashville, testified
that a mountain bicycle differed from a road bicycle in that a mountain bicycle had a smaller
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frame and wheels and weighed between twenty-five to thirty-two pounds. Mr. West said that
the bicycle shown with Defendant in the photographs introduced as exhibits 3A and 3B was
an older model mountain bike. Mr. West said that he was able to put his own mountain
bicycle inside his Honda Civic by removing the front wheel with a “quick release”
mechanism. Mr. West stated that it took between approximately five and fifteen seconds to
remove the front wheel and the same amount of time to reattach the front wheel to the
bicycle. Mr. West also said that a mountain bicycle could be placed in the front seat of his
parent’s Volvo, which was similar in size to that of the victim’s vehicle, after the front wheel
was removed. Mr. West stated that the dirt reflected in the photograph of the victim’s front
passenger floorboard appeared to be consistent with a tire or part of a bicycle resting there.
Bill Pridemore, a detective assigned to the homicide section of the Metro Nashville
Police Department, testified that he submitted certain fibers and a hair sample found in
Defendant’s Jeep to the Federal Bureau of Investigation (“FBI”) for analysis. Detective
Pridemore also submitted a hair sample found in Defendant’s Jeep and hair samples from the
victim’s hairbrush to Orchid Cellmark Labs for DNA testing. The parties entered an agreed
stipulation into evidence stating that the mitochondrial DNA analysis of the hair sample
recovered from the cargo area of Defendant’s Jeep was consistent with the victim’s DNA
profile.
Karen Korsberg testified that she is employed as an examiner in the FBI’s trace
evidence unit in the laboratory in Quantico, Virginia. Ms. Korsburg examined three samples
of debris collected from the Defendant’s Jeep for the presence of carpet fibers. Ms. Korsburg
explained that carpet fibers are generally courser or larger than fibers in clothing and may
have specific shapes. Ms. Korsburg said that the sample taken from the Jeep’s front trunk
area contained blue, grey, and green round carpet type fibers; a reddish orange trilobel carpet
type fiber; a pink trilobel carpet type fiber, and an off-white carpet type fiber. The sample
taken from the back of the Jeep’s trunk area contained a reddish orange trilobel carpet fiber,
a pink trilobel carpet fiber, and a light grey or blue trilobel carpet fiber. The sample taken
from the Jeep’s front and back seats contained reddish orange trilobel carpet-type fibers, light
blue trilobel carpet-type fabrics, a grey, round carpet type fiber, and an off-white trilobel
carpet type fabric.
Annette Noel Hall testified that in 1996 she was employed by WSMV Channel 4, an
NBC affiliate. Excerpts from Ms. Hall’s 1996 interview of Defendant were played for the
jury. In those excerpts, Defendant denied that he and the victim fought during the evening
of August 15, 1996, and described it as a “relatively benign evening.” Defendant denied
removing the hard drive from the computer located at his residence and said it was as much
“an enigma” to him as it was to the police. Defendant said that he would not allow the
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investigating officers to interview his son because Samson was asleep when the victim left
the house on August 15, 1996, and did not know anything about the victim’s disappearance.
Redina Friedman testified that she practices family law in Chicago, Illinois and is a
certified child representative with the Cook County Court System. Ms. Friedman was
appointed guardian ad litem to the March children in March 1999 after the Levines filed a
petition requesting visitation rights with the children. Ms. Friedman interviewed the children
at their home in Chicago and was concerned with the absence of any photographs or other
reminders of the victim. Ms. Friedman said that Defendant opposed granting the Levines
visitation rights because he was concerned that they would allow the police and the news
media to interview his son. Defendant told Ms. Friedman that Samson “knew absolutely
nothing” about the victim’s disappearance, and that he did not see or hear anything on the
night she left. Ms. Friedman stated that the children had a close relationship with their
grandparents, and despite Defendant’s concerns, Ms. Friedman filed a written report with the
court recommending that visitation be granted. After the report was filed, Defendant became
“openly hostile” to Ms. Friedman and told her that “he could disappear in Singapore and no
one would ever see them again.”
Mark Levine, the victim’s brother, testified that he returned home from California
when he learned of the victim’s disappearance. One day when Defendant was at his parent’s
home, Mark Levine asked Defendant if he could see the note entitled “Janet’s twelve-day
vacation” which was saved on Defendant’s computer. The two men left in separate vehicles,
and Defendant drove away first at a fast rate of speed. Mark Levine followed Defendant but
fell behind when Defendant ran a red light. When he arrived at Defendant’s house, the door
was locked. Mark Levine rang the door bell several times before Defendant opened the door.
Defendant had already turned on the computer. While reading”Janet’s 12- day vacation”
note, Mark Levine noticed another document in the computer which appeared to be a list by
the victim of incidents where Defendant mistreated her. The list was six pages long, single-
spaced, and with no paragraph indentations. Defendant initially said that Mark Levine could
print off a copy of the document. Mark Levine said that he did not know how to print from
Defendant’s computer. Defendant did not explain how to use the print function, and Mark
Levine never obtained a copy of the list.
Mark Levine said that he, his parents and Defendant were sitting on the Levines’ patio
when Detective Miller arrived shortly after the victim’s disappearance had been reported to
the police. Mark Levine stated that Defendant “just turned white when he saw that car and
he started shaking, just overwhelmingly shivering, because I remember he tried to stand up
twice and fell back in his chair twice he was shaking so much.” Defendant asked Mark
Levine to call his brother, Ron March. Mark Levine delayed placing the call and then left
a message on Ron March’s answering machine. On cross-examination, Mark Levine
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acknowledged that the computer showed that the “12-day vacation note” was saved at 8:15
p.m. on August 15, 1996.
Leigh Reames testified that in 1991 she worked as a paralegal in the same law firm
as Defendant. Ms. Reames stated that she received three anonymous letters which contained
sexual references. Ms. Reames turned the letters over to her supervisor, and, after an internal
investigation, it was determined that Defendant had written the letters. Ms. Reames felt
uncomfortable working for the firm and resigned. An out-of-court settlement agreement was
reached in which Defendant agreed to pay equal monthly payments until the forty-eighth
installment when a balloon payment of $12,500 was to be paid. Ms. Reames stated that she
never received the balloon payment which was scheduled to be paid in early 1996. Instead,
she received a letter from Defendant dated August 13, 1996, and postmarked August 16,
1996, in which Defendant told Ms. Reames that he would be able to make the balloon
payment in October 1996. Ms. Reames testified that the two typewritten letters found in the
envelope among the victim’s possessions by Ms. Levine in early 1997 were the originals of
the second and third letters she had received from Defendant in 1991. Ms. Reames stated
that letters she received in 1991 were only copies of the originals.
Jon Jones testified that he represented the Levines in litigation involving the property
of the victim’s estate. Mr. Jones took Defendant’s deposition in October 1996 in connection
with this civil litigation. A redacted video of the interview was introduced as an exhibit and
played for the jury at trial. In his interview, Defendant generally relayed the same
information contained in his statement to the police. Defendant acknowledged that the
victim was upset with him on August 15, 1996, but said it was just “normal tension.”
Defendant stated that he did not believe that his prior contact with Leigh Reames was a
problem on August 15, 1996. Defendant said that the victim knew about the incident and the
settlement agreement. Defendant said he believed he and the victim last discussed the issue
in June or July 1996, including Defendant’s plan to pay off the balance of his debt.
Defendant acknowledged that he executed a will in September or October 1996 in which he
changed the beneficiary from the victim to the children and appointed his brother, Ron
March, as administrator and guardian of the children.
Michael Levine, the victim’s first cousin, testified that he served as the victim’s and
Defendant’s insurance agent prior to the victim’s disappearance. In October 1994, the
Marches purchased a $250,000 term policy on the victim’s life with Defendant as
beneficiary. Defendant also had a life insurance policy in the face amount of $400,000 with
the victim as beneficiary. In January 1997, Michael Levine received a copy of a letter which
Defendant had sent to the insurance company asking that Michael Levine be removed as his
insurance agent. Michael Levine said that the beneficiary of the victim’s life insurance
policy was changed from Defendant to the victim’s estate, with the children as contingent
-12-
beneficiaries, by the probate court, and the insurance proceeds were paid in trust to the
probate court in 2003.
Sherri Lee, a beautician, testified that she cut both the victim’s and Defendant’s hair
in 1996. Ms. Lee said that she was cutting the victim’s hair in July 1996 when Defendant
entered the salon. He approached the victim, and the victim seemed nervous “and she sort
of [cowed] away a little.” Ms. Lee had never observed the victim act that way around
Defendant. Ms. Lee said that Defendant had an appointment scheduled for August 22 or
August 23, 1996. Ms. Lee did not know the victim was missing at that time. Ms. Lee went
to greet Defendant who was accompanied by a woman. Defendant said, “Janet is not here
but her best friend so and so [sic] . . . is.” Ms. Lee could not remember the woman’s name.
Jose Alberto Sandoval Pulido testified that he had practiced law in Guadalajara,
Mexico since 1998. Mr. Pulido, his client, Samuel Chavez, and Defendant had a business
meeting in Mexico in 2001. Defendant became very angry with Mr. Pulido and Mr. Chavez
toward the end of the meeting, and Mr. Chavez and Defendant traded insults. Mr. Pulido
stated that Defendant “said that if we did not help him he would do away with us the way he
did with his wife.” Mr. Pulido and Mr. Chavez left the meeting.
A videotape of Arthur March’s deposition which was taken before trial was played
for the jury. In his deposition, Mr. March testified that he had entered a plea of guilty in
federal court to solicitation to commit murder. Mr. March acknowledged that the Levines
were the intended victims of the charged offense. Mr. March was sentenced to eighteen
months confinement followed by three years of supervised probation in exchange for his
truthful testimony at Defendant’s murder trial. Mr. March said that he arrived in Nashville
three or four days after the victim disappeared to help Defendant with the children and to
attend Samson’s birthday party. When he arrived in Nashville, Defendant asked him to
dispose of his computer’s hard drive and another component of the computer. Mr. March
threw the hard drive away in a wooded area, and the other component in a dumpster.
Defendant then asked his father to help him dispose of the victim’s remains. Mr. March said
that he bought a shovel and a bottle of Clorox at a hardware store near Interstate 65. He and
Defendant drove to a road near a construction site on property previously owned by Sharon
Bell. Mr. March got out of the car, and Defendant drove away. Mr. March followed
Defendant’s directions by walking ten or fifteen yards and turning left and found the victim’s
remains in a leaf bag in the spot described by Defendant. Mr. March brushed the dirt off the
top of the bag and closed it. He pulled the bag down the hill and waited for Defendant by
the side of the road. Defendant drove up, and Mr. March and Defendant put the victim’s
remains in the trunk. Mr. March stated that he saw some bones in the bag, and the bag
weighed approximately fifty or sixty pounds.
-13-
Defendant drove north toward Chicago. Defendant stopped at a motel near Bowling
Green, Kentucky and Mr. March paid for a room with Defendant’s cash. Defendant told his
father that he was tired and laid down on the bed. Mr. March took Defendant’s car keys and
drove to the other side of Bowling Green. He looked for a creek but could not find one that
was deep enough to hide the victim’s remains. Mr. March pulled to the side of the road as
the sun began to rise and noticed a large pile of brush. He cleared away three holes in the
brush, and he placed the victim’s clothes in the first hole, the victim’s remains in the second
hole, and the trash bag in the third hole. Mr. March then drove back to the motel, and he and
Defendant returned to Nashville. Mr. March said that he and Defendant never discussed the
incident again.
Regarding the solicitation of the murder of the Levines, on cross-examination, Mr.
March acknowledged that Mr. Farris, whom he knew as “Bobby Givings,” telephoned him
in Mexico. Mr. March said that Defendant told him that Mr. Farris was “a friend who needed
some help.” Mr. Farris used code words during the first telephone call so that Mr. March
would know that Defendant had approved the call. Mr. March initially said that it was his
idea to murder the Levines. Subsequently, he stated that Mr. Farris suggested the plan. Mr.
March said that he never discussed with Defendant the details of his telephone conversations
with Mr. Farris. Mr. March acknowledged, however, that Mr. Farris told him to send
information concerning their conversations to Defendant’s sister in Chicago who would
download the messages and mail them to Defendant. Mr. March acknowledged that he and
Mr. Farris discussed the Levines’ schedule, and the plan for Mr. Farris to come to Mexico
after the offenses were committed. Mr. March said that he understood from Defendant that
he, Mr. March, was to support Mr. Farris in the commission of the offenses.
The taped telephone conversations between Mr. March and Mr. Farris were
introduced as exhibits at trial and played for the jury. The two men discussed the daily
schedules of Defendant’s children and the Levines, the purchase of a gun to commit the
offenses, the type of gun to use, and the plan for Mr. Farris to live with Mr. March in Mexico
after the offenses. Mr. March warned Mr. Farris to “wear thin surgeon’s gloves,” and told
him, “You do not take them off at all.”
Fletcher Bailey Long testified that he represented Arthur March after his indictment
in Tennessee for conspiracy to commit first-degree murder, and his indictment in federal
court for conspiracy to commit interstate murder-for-hire. Mr. Long said that he and Mr.
March were discussing a possible settlement agreement on February 1, 2006, when
Defendant entered the room. Defendant said, “Dad, don’t roll on me, I’m not going to roll
on you.” Mr. Long said that Defendant held out his jail jumpsuit and said, “We will wear
this as a badge of honor, a badge of honor.”
-14-
Dr. William M. Bass, a professor emeritus of the University of Tennessee, was
allowed to testify as an expert in the field of forensic anthropology. Dr. Bass explained that
various factors affect the rate of a body’s decomposition including temperature, exposure to
sun, and the place the body was buried. Dr. Bass was provided a hypothetical situation in
which the body of a one hundred pound, five feet, three inches tall woman is placed in a large
leaf bag, open on one end, which is then deposited in a wooded area, lightly covered with
dirt, leaves, or debris and not removed for approximately thirty-nine days. Dr. Bass stated
that based on those conditions, the decaying process would start on the fifth day and last
between fifteen to twenty days. Dr. Bass said that the body would be a skeleton by the end
of the third or fourth week, and the bones would weigh between ten and fifteen pounds.
Robert Armstrong, the co-owner of a tire store in Nashville, testified that he sold a set
of Michelin tires to Defendant on August 21, 1996, for Defendant’s Jeep Cherokee. Before
he rang up the sale, Mr. Armstrong inspected the Jeep and discovered that the tires “were in
extremely good shape.” Defendant told Mr. Armstrong that he wanted Michelin tires instead
of the ones currently on the Jeep. Defendant told Mr. Armstrong that he did not want to keep
the old tires.
Andrew Saks, a friend of Defendant and the victim, testified that Defendant asked Mr.
Saks to help him move on September 18, 1996. Mr. Saks said that Defendant “was very
business like and somewhat aggravated” during the move. Mr. Saks said that Defendant’s
comments “that he wanted to ‘F’ [sic] the Levines and ‘F’ [sic] the Nashville police” were
“very disturbing.” Mr. Saks stated that Defendant did not take up his offer to help Defendant
search for the victim.
Robert Heller testified that he has known Defendant since October 1993. In 1997,
Defendant asked Mr. Heller to critique a manuscript Defendant had written. The manuscript,
which was introduced as an exhibit at trial, portrayed the investigation of the murder of a
young, black-haired woman.
Russell Nathaniel Farris testified that he was currently housed in the Davidson County
Criminal Justice Center on three counts of attempted first degree murder, one count of
aggravated robbery, and one other felony offense not identified in the record. Mr. Farris
acknowledged that he had four prior convictions of theft, one conviction for facilitation of
robbery, one conviction for reckless endangerment, and one misdemeanor theft conviction.
Mr. Farris agreed that he was facing a significant amount of time in confinement if convicted
of the pending charges.
Mr. Farris said that he was arrested on his current charges at the end of April 2005 and
transferred to the Special Management Unit on the fourth floor of the Criminal Justice Center
-15-
at the end of May. Defendant arrived on the fourth floor in August 2005. Mr. Farris said that
Defendant came over to talk to him on Defendant’s first night in the unit. Defendant asked
Mr. Farris about prison life, and Defendant talked about living in Mexico. Mr. Farris stated
that Defendant’s erroneous belief that Mr. Farris had been charged with first degree murder
was because of a computer error.
Mr. Farris said that Defendant would talk to him through a crack in Mr. Farris’s cell
door during Defendant’s recreation period. After numerous conversations, Mr. Farris said
that Defendant asked him to kill Carolyn and Lawrence Levine. Defendant told Mr. Farris
that he would pay his bond so that Mr. Farris could be released from jail. Defendant intended
to raise money for Mr. Farris’s bond by selling property in Mexico or possibly through a cash
advance for the publication of his manuscript.
Mr. Farris stated that he and Defendant talked on a daily basis for approximately one
month. Mr. Farris became concerned that he would be charged with conspiracy, and he told
his attorney and mother about his conversations with Defendant. Mr. Farris’s attorney
scheduled a meeting with police officers and the district attorney general’s office after which
Mr. Farris agreed to record his conversations with Defendant. Mr. Farris recorded several
conversations with Defendant in which the murder of the Levines was discussed. Mr. Farris
then told Defendant that he was going to be released on bond. Instead, Mr. Farris was taken
to the Williamson County jail. The tape of the recorded conversations was entered as an
exhibit at trial and played for the jury.
Before Mr. Farris’ transfer, Defendant wrote down a list of code words Mr. Farris was
to use when he contacted Arthur March, and gave Mr. Farris Mr. March’s telephone number
in Mexico and his e-mail address. Defendant wrote the Levines’ address at the bottom of the
page. After his transfer to Williamson County, Mr. Farris called Arthur March in Mexico
approximately five times concerning the plan to murder the Levines.
On cross-examination, Mr. Farris said that when he was supposedly ready to commit
the murders, he would tell Arthur March that he was ready “to buy the BMW.” Arthur would
relay the information to his daughter in Chicago who would then e-mail the information to
Defendant. Mr. Farris said that he used the name, “Bobby Givings”, when he spoke to
Arthur March. Defendant told Mr. Farris, however, that Mr. Farris was to postpone killing
the Levines if Defendant got word to Mr. Farris through Arthur March that he was “not ready
to sell.” Defendant said that it was important for both him and Mr. Farris to be in agreement
on the timing of the offenses.
Cornelius King testified that he was arrested in Nashville on October 19, 2005, for
first degree murder, and he was housed in the Special Management Unit on the fourth floor
-16-
of the Davidson County Criminal Justice Center. Defendant’s cell was next to Mr. King’s
cell. Defendant talked to Mr. King when Defendant was released from his cell for recreation.
Defendant talked about his children, his father, and living in Mexico. During one
conversation, Defendant told Mr. King that he and the victim had argued over Defendant’s
infidelity. Defendant said that the victim told him that she was going to obtain a divorce and
“take everything.” Defendant told Mr. King that he “was not going to allow it to happen.”
The argument escalated into a physical altercation, and Defendant said that he struck the
victim on the head with a wrench. Defendant told Mr. King that he would win his case
because he had burned the victim’s body and poured the ashes in the lake.
In January 2006, Mr. King was moved to the third floor but was shortly returned to
the fourth floor after a confrontation with his co-defendant. Mr. King said that Defendant
was suspicious of him after Mr. King returned to the Special Management Unit. Defendant
asked Mr. King if he had returned to the fourth floor to elicit more incriminating evidence
about Defendant. Mr. King wrote down the substance of the prior conversations with
Defendant about the victim’s death and passed the note to his lawyer. Mr. King said that
Defendant asked him to testify in court against another prisoner, Reno Martin, and Defendant
would tell him what to say. Mr. King refused. Defendant then filed a grievance against Mr.
King alleging extortion, and Mr. King was moved off the fourth floor.
Reno Martin testified that in October 2005, he was housed at the Criminal Justice
Center in the Special Management Unit on the fourth floor following his arrest on a drug
charge. Mr. Martin said that his cell was next to Defendant’s cell, and Mr. Farris’ cell was
on the other side. Mr. Martin and Defendant became friends. One day, while the men were
taking their recreation on the roof, Mr. Martin noticed that Defendant was “very agitated.”
Defendant had attended a court proceeding earlier that day concerning the custody of his
children. Defendant told Mr. Martin that “it was times like this that he was glad that he
wasn’t [sic] out with a gun.” Mr. Martin stated that Defendant also said “that it should have
been them that he had taken care of instead of . . .” Defendant stopped talking before he
finished his sentence and “lost his expression on his face.” Mr. Martin stated that Defendant
“went completely pale, like he couldn’t [sic] believe what he just said to me.” Mr. Martin
said that Defendant “kind of had the deer in the headlight look.”
Mr. Martin told federal officers that he believed that Defendant had hired Mr. Farris
to kill the Levines. Mr. Martin said that Mr. Farris and Defendant were having private
conversations and acting “very secretive.” Defendant and Mr. Farris would stop talking if
anyone walked by. On one occasion, Mr. Martin overheard Defendant ask someone in an
agitated voice on the telephone why some money had not been transferred. Defendant hung
up and placed another call. Defendant gave the person on the other end an account number
and said that he was to be sure that the money got transferred.
-17-
Mr. Martin and Defendant discussed Mr. Farris’ release on bond. Defendant said that
he thought Mr. Farris might show up for one court date, but he did not think that Mr. Farris
would attend any court dates after that. Defendant said that there was “no telling what [Mr.
Farris] might do once he got out and what he might say [Defendant] put him up to.” Mr.
Martin thought that Mr. Farris was relaying information about Defendant to the FBI although
he had no basis for his suspicions. When he told Defendant, Defendant “was very
distraught.” After Defendant learned about Mr. Farris’ cooperation with the investigating
officers about the conspiracy to murder the Levines, Defendant asked Mr. Martin to say that
he had never seen Defendant and Mr. Farris communicate with each other while Mr. Farris
was housed on the fourth floor.
Kevin Carroll, an investigator for the Davidson County Sheriff’s Department and a
task force officer with the FBI’s Violent Crime and Gang Task Force in Nashville, testified
that he participated in the investigation of the conspiracy to kill Carolyn and Lawrence
Levine. Investigator Carroll arranged for two digital tape recorders to be placed into
Nathaniel Farris’ cell on October 6, 2005. Investigator Carroll recovered the digital tapes
from Mr. Farris during the evening of October 6, 2005. Mr. Farris was then transferred to
the Williamson County jail.
Investigator Carroll explained that inmates housed in the Special Management Unit
were on “house alone/rec alone” status which meant that Defendant was not allowed out on
recreation at the same time as the other inmates. Investigator Carroll said that the fourth
floor was under twenty-four hour surveillance, and a redacted copy of the surveillance
videotape for the twenty-four hour period from October 6, 2005 to October 7, 2005, was
introduced as an exhibit. The video tape shows Defendant walking up and down the corridor
between the two rows of cells and then approaching Mr. Farris’ cell. A second surveillance
videotape, showing Defendant’s interaction with Mr. King, was introduced as an exhibit and
played for the jury.
Kenneth Sena, a supervisory special agent with the FBI assigned to the Guadalajara,
Mexico office, testified that he conducted a surveillance of Arthur March on October 27,
2005, in connection with the investigation of the conspiracy to kill Carolyn and Lawrence
Levine. Agent Sena stated that Mr. March left his home that day at approximately 12:30 p.m.
and arrived at the Guadalajara International Airport at approximately 1:05 p.m. At
approximately 3:00 p.m., Agent Sena approached Mr. March and asked Mr. March why he
was at the airport. Agent Sena said that Mr. March appeared “physically shaken” and
“turned pale.” Mr. March sat down, and Agent Sena gave Mr. March time to catch his
breath. Mr. March said that he was at the airport to meet a friend named “Bobby Givings.”
Agent Sena informed Mr. March that “Mr. Givings” had arrived at the airport but was being
detained by immigration officers.
-18-
Pat Postiglione, a detective with the Metro Nashville Police Department, testified that
he and Detective Bill Pridemore escorted Defendant from Los Angeles to Nashville on
August 12, 2005, after Defendant’s arrest in Mexico on the murder charge. During the trip
to the airport and the flight itself, Detective Postiglione said that Defendant indicated that he
wanted to talk. Detective Postiglione told Defendant that he understood that Defendant was
an attorney, and told Defendant that he had no intention of interrogating him on the trip, and
that Defendant was under no obligation to speak to him. Defendant said that he appreciated
the information, but then began to talk. Defendant initially denied killing the victim but said
that “he wanted to close this chapter in his life,” and “his attorneys would be contacting the
police very soon.”
Defendant asked Detective Postiglione about the State’s evidence against him and
whether the victim’s body had been found. Defendant asked Detective Postiglione to contact
the district attorney general in charge of the case over the weekend. Defendant said he would
enter a plea of guilty to the victim’s death in exchange for a sentence of between five and
seven years. Defendant said, “Prior to the Janet incident, I have not been involved in any
other criminal-type activity.” Detective Postiglione informed Defendant that he was not
authorized to enter into any plea negotiations, but Defendant continued to talk about the case
during the approximately three-hour flight. Detective Postiglione said that Defendant
mentioned a potential sentence of between five and seven years on several occasions.
Defendant asked general questions about medium and minimum security prisons and prison
life. Defendant said that he would be “100 percent honest” if a settlement agreement could
be reached. Detective Postiglione told Defendant that he could not answer for the District
Attorney’s office, but he would relay the terms Defendant wanted out of a potential
settlement agreement. Defendant also asked hypothetically whether a person would face a
second degree murder charge if the death was accidental. Defendant told Detective
Postiglione that “he intensely loved Janet,” but she was not the angel portrayed in the media.
Detective Postiglione subsequently received information that Mr. Farris had certain
information concerning Defendant. Mr. Farris disclosed Defendant’s plan to kill Carol and
Lawrence Levine during a meeting on October 4, 2005. Detective Postiglione verified that
Mr. Farris was housed next to Defendant’s cell and that Mr. Farris had placed a telephone
call to Mexico on Defendant’s behalf. Detective Postiglione said that the fourth floor’s
surveillance videotape showed lengthy conversations between Defendant and Mr. Farris. Mr.
Farris agreed to digitally record any conversations with Defendant which were later
downloaded to a compact disc. The compact disc was introduced as a exhibit and played for
the jury.
Detective Postiglione stated that Mr. Farris agreed to place five telephone calls to
Arthur March on October 12, 14, 20, 25 and 27, 2005. On October 27, 2005, Mr. Farris told
-19-
Mr. March that he had murdered the Levines and that he was at the Houston International
Airport waiting for his flight to Guadalajara, Mexico. Mr. Farris asked Mr. March to pick
him up at the airport. The tapes of the recorded telephone conversations between Arthur
March and Mr. Farris were introduced as an exhibit and played for the jury.
Detective Postiglione said that Defendant’s residence on Blackberry Road was
approximately 4.8 miles from the Brixworth Apartments. A demonstration mountain bicycle
ride from Defendant’s residence to the Brixworth Apartments took approximately thirty
minutes.
Sharon Bell testified that Defendant represented her in 1994 during a real estate
transaction. Ms. Bell and her husband, Fred Zimmerman, purchased approximately one
hundred acres of undeveloped land on Hillsboro Road north of Old Hickory Boulevard. Ms.
Bell said that Defendant reviewed the original plat for the property and physically inspected
the property on at least one occasion. The property was purchased and divided into lots. Ms.
Bell stated that she talked with Defendant frequently concerning the progress of the
property’s development. Ms. Bell accepted an offer to purchase Lot No. 2 on September 4,
1996, and the closing was scheduled for October 8, 1996.
The State rested its case-in-chief, and Defendant presented his defense. Robert L.
Jackson testified that he had been practicing law since 1965 exclusively in the area of family
law including divorces. Mr. Jackson said that Defendant scheduled an appointment with him
for August 27, 1996. Mr. Jackson stated that a copy of the list entitled “Janet’s 12-day
Vacation” was in his file.
Kyle P. Sowell, the chief deputy clerk of the Davidson County Probate Court, testified
that Arthur March filed a pleading in the probate court in connection with the probate of the
victim’s estate on July 30, 1999. The parties entered an agreed upon stipulation that “this
pleading alleged in part that Larry Levine killed Janet March, hid his crime completely, and
has attempted to deflect the blame from himself and onto his [Arthur’s] son, Perry.” On
cross-examination, Mr. Sowell said that the pleading was neither verified nor notarized, and
the issues raised in the pleading were not addressed by the probate court before the case was
closed.
David Roh testified that he had been a tire salesperson for approximately twenty-seven
years at the same establishment as Robert Armstrong. Mr. Roh said that he sold Defendant
four tires for his Jeep Cherokee on August 21, 1996. Mr. Roh stated that it was the store’s
policy to tell a potential buyer whether or not new tires were actually needed. Mr. Roh said
that he did not remember having that conversation with Defendant.
-20-
The parties entered an agreed upon stipulation that Defendant leased an apartment in
University Square Apartments from Dr. Robert Maddox on August 17, 1996.
Corporal Steve Howard testified that he was a Special Management Unit Officer on
the fourth floor of the Criminal Justice Center in 2005. Corporal Howard stated that
Cornelius King was housed on the fourth floor from October 21, 2005, until January 6, 2006.
On one day during that period, Mr. King asked Corporal Howard if he could move to a
different cell because there was a ghost in his cell.
Sergeant Paul Roberts, another supervisor with the Special Management Unit, testified
that on one occasion, the faucet in Mr. King’s cell was stuck so that the water ran
continuously. Sergeant Roberts said that the sink could be accessed from outside the cell.
Sergeant Roberts fixed the faucet and then turned the water on and off repeatedly to make
sure that it would not stick again. Sergeant Roberts stated that Mr. King became very
excited, and Sergeant Roberts explained that he was working on the plumbing to the cell.
On cross-examination, Sergeant Roberts stated that Mr. King calmed down when he found
out that Sergeant Roberts was the one turning the water on and off.
Corporal Alicia McArthur testified that she worked in the Special Management Unit
on the fourth floor of the Criminal Justice Center. Corporal McArthur stated that in March
2006 Defendant filed a complaint against Mr. King after which Mr. King was moved to a
different location. On cross-examination, Corporal McArthur said that, according to
Defendant’s complaint, Mr. King had threatened to have other inmates harm Defendant if
Defendant did not give Mr. King his apple pie. Corporal McArthur acknowledged that the
threat could not have actually been carried out because Defendant was on “house alone/rec
alone” status. Corporal McArthur stated that the substance of the threat was not investigated
because no disciplinary report was filed. Corporal McArthur acknowledged that Mr. King
was not moved on the day of the reported threat.
Sergeant Sheila Stinson with the Davidson County Sheriff’s Department testified that
she investigated Mr. King’s alleged threat against Defendant. Sergeant Stinson determined
that Mr. King needed to be moved because Defendant said that Mr. King had threatened to
bodily harm him. On cross-examination, Sergeant Stinson stated that her investigation was
limited to talking with Mr. King and Defendant. Sergeant Stinson acknowledged that no
inmate would have been able to harm Defendant because of his “house alone/rec alone”
status.
A video taped interview of Samson March by a news reporter in May 2000 was
entered as an exhibit at trial and played for the jury. In his statement, Samson said that on
August 15, 1996, his mother came into his bedroom, gave him a good-night kiss, and told
-21-
him that she would be back soon. Samson stated that she had two suitcases with her and was
wearing a white shirt and brown velvet slacks. Samson said that he went to his bedroom
window and waved at the victim as she drove away, and the victim waved back.
The State called the following rebuttal witnesses. Carolyn Levine testified that only
the rooftop of a vehicle leaving the house was visible from Samson’s second story bedroom.
Ms. Levine stated that Samson had never before said that the victim had told him goodbye
on August 15, 1996, or that the victim left the house with a suitcase.
Kim Abbington-Scott testified that she was Samson Levine’s kindergarten teacher in
1996. Ms. Abbington-Scott said that Samson was very sad on the first day of school on
August 26, 1996. Samson told Ms. Abbington-Scott that his mother had left, and he did not
get to tell her good-bye before she left.
Ralla Klepak testified that she was appointed to represent the March children in court
proceedings in Chicago. Ms. Klepak stated that Samson told her that he did not know where
his mother was, and that the last thing he heard on the night she left was his mother and
father arguing downstairs after he had gone to bed. When he went downstairs the next
morning, his mother was gone. Ms. Klepak described Samson as “very traumatized and sad.”
ANALYSIS
I. Suppression of Defendant’s August 12, 2005 Statements to Sergeant Postiglione
Defendant argues that the trial court erred in denying his motion to suppress his
comments to Detective Postiglione during his transport from Los Angeles to Nashville on
August 12, 2005. Defendant submits that the obtaining of these statements violated his
constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution, and under Article 1, § 9 of the Tennessee Constitution. Defendant also argues
that his comments to Detective Postiglione concerning the possibility of entering into plea
negotiations were inadmissable under Rule 408 of the Tennessee Rules of Evidence.
Detective Postiglione testified at the suppression hearing that Defendant first initiated
a conversation during the drive from the Los Angeles County Jail to the car rental company
to return the officer’s rental car. Defendant told Detective Postiglione that he (Defendant)
had spoken with an attorney while he was housed in the Los Angeles County Jail. Defendant
referred to the attorney as “Brent,” a college friend. Detective Postiglione told Defendant
that he was aware that Defendant was an attorney and advised Defendant that he did not have
to speak to the police officers if he did not choose to do so, but that he would listen to any
comments or questions Defendant might have.
-22-
While they were waiting for Detective Pridemore to turn in the rental car, Defendant
said that he appreciated Detective Postiglione’s advice and said that his attorneys would soon
contact the police department, without further elaboration. Defendant said that “he was ready
to close this chapter in his life.” Detective Postiglione told Defendant that people often
perceived events “one way when, in fact, it is something totally different.” Detective
Postiglione said that he used “a moment of anger instantly regretted” as an example. As a
hypothetical, Detective Postiglione explained to Defendant that there was a “stark difference”
between someone killing another person in anger, and someone walking up behind the other
person and “shooting them in the back of the head.” Defendant did not respond to Detective
Postiglione’s comment, and the two men only engaged in small talk until they boarded the
airplane to go to Nashville.
During the flight, Defendant began questioning Detective Postiglione about the extent
of the State’s evidence against him and whether the evidence was direct or circumstantial.
Despite the fact that Detective Postiglione told Defendant that he could not discuss the
evidence with him, Defendant was very persistent with his questions. Defendant asked
Detective Postiglione if the police department had located the victim’s body and whether they
could prove that the victim was dead. Detective Postiglione did not respond.
Defendant “adamantly” denied being involved in the victim’s disappearance but began
to ask questions about the possibility of a plea agreement with a sentence of between five and
seven years. Defendant said that even though he was not guilty, he wanted to avoid the risk
that he would be sentenced to thirty years. Detective Postiglione told Defendant that he was
not authorized to enter into plea negotiations. Detective Postiglione said that he would listen
to what Defendant had to say but told him that only the District Attorney General’s Office
had the authority to extend a plea offer. Detective Postiglione stated that Defendant said that
he was going “to do the high road, do the right thing, be a man, and do his time.” Defendant
asked Detective Postiglione about prison life and whether he would be placed in “a minimum
to medium security situation.” Defendant said that “he knew what was best for him, adding
that he would be the best attorney in the room.” Defendant stated that he was not being
arrogant, “just honest.”
Detective Postiglione told Defendant that if a settlement agreement could be reached,
Defendant would be required to answer specific questions as part of the process. Defendant
replied, “OK [sic], [y]ou tell Tom Thurman that if we can work out a deal, I will answer all
of their questions completely and honestly and be one hundred percent truthful.” Defendant
mentioned plea negotiations several times during the flight and asked Detective Postiglione
to speak with the District Attorney General over the weekend instead of waiting until
Monday.
-23-
Defendant said that “it would be easier on the police department, the District
Attorney’s Office, his own family, and the Levine family if it didn’t [sic] go to trial.”
Defendant stated that a plea of guilty would bring closure to the Levine family. Defendant
asked if a convicted felon could practice law after prison, and Detective Postiglione
responded that he did not know. Defendant asked Detective Postiglione if the District
Attorney’s Officer would help bring his wife, Carmen, to the United States because she was
not an American citizen. Defendant again stated that he would accept a sentence of between
five and seven years in connection with the entry of a plea of guilty. Defendant said that
before the “Janet incident,” he had not been involved in any criminal activities.
The men changed flights in Memphis for the final leg of the journey. Defendant
commented, “We are just two men having a cordial conversation.” Defendant gave Detective
Postiglione the names and telephone numbers of his attorneys in Nashville. After their
arrival in Nashville, and as Defendant was walking to the police booking room, Detective
Postiglione told Defendant that he hoped that Defendant “would continue to think about the
things that he [Defendant] had said on the plane.” Detective Postiglione stated that
Defendant “stopped walking, pointed his finger toward his face, and said, ‘Look at me,
you’ve got my word!’”
On cross-examination, Detective Postiglione acknowledged that he did not provide
Defendant with a verbatim Miranda warning because he did not intend to interrogate
Defendant about the case. Detective Postiglione stated that he only responded to Defendant’s
questions during the trip and did not himself ask any questions. Detective Postiglione
acknowledged that he hoped that Defendant would engage in conversation during the flight,
and that he encouraged questions and comments from Defendant. Detective Postiglione
stated, however, that the topics of their conversations surprised him. Detective Postiglione
said that the conversations lasted approximately two hours with periodic breaks while
Defendant napped, read a magazine, and ate a snack.
At the conclusion of Detective Postiglione’s testimony, the State introduced as an
exhibit without objection the transcript of a deposition of Defendant taken on October 15,
1996, in a civil case related to the Levines’ request for grandparent visitation. During the
deposition, Defendant invoked his Fifth Amendment Right not to incriminate himself more
than seventy times when questioned about the victim’s disappearance and the events leading
up to and immediately after August 15, 1996. The State also introduced as an exhibit without
objection Detective Postiglione’s written summary of his conversations with Defendant on
August 12, 2005, which he prepared when the men arrived back in Nashville.
The trial court found Detective Postiglione’s testimony credible. The trial court found
that nothing in Detective Postiglione’s written summary of the conversation on August 12,
-24-
2005, or his testimony at the suppression hearing indicated that Defendant was subjected to
custodial interrogation or its functional equivalent under the principles of Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) or Rhode Island v. Innis, 446 U.S. 291, 100 S.
Ct. 1682 (1980), and that the obtaining of his statements was not in violation of Defendant’s
constitutional privilege against self-incrimination.
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review both questions of law and the trial court’s
application of law to the facts purely de novo. See State v. Hanning, 296 S.W.3d 44, 48
(Tenn. 2009); State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the State, as the
prevailing party, is “entitled to the strongest legitimate view of the evidence adduced at the
suppression hearing as well as all reasonable and legitimate inferences that may be drawn
from that evidence.” Odom, 928 S.W.2d at 23.
We first address Defendant’s contention on appeal that the trial court “conspicuously
declined” to address his argument that his conversation with Sergeant Postiglione violated
his Sixth Amendment right to counsel. In his motion to suppress, Defendant alleged that
both his Fifth and Sixth Amendment rights were violated by the taking of his statements on
August 12, 2005. However, Defendant’s arguments in his motion to suppress and at the
suppression hearing were based solely on Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602(1966) and State v. Sawyers, 156 S.W.3d 531 (Tenn. 2005), both Fifth Amendment cases.
The trial court, although referencing the Sixth Amendment in its order denying Defendant’s
motion to suppress, applied a Fifth Amendment analysis without addressing Sixth
Amendment principles and concluded that Defendant was not subject to custodial
interrogation or its functional equivalent within the guidelines of the Fifth Amendment.
Nonetheless, in his motion for new trial, Defendant argued that the admission of his
August 12, 2005, statements violated his Sixth Amendment right to counsel as outlined in
Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964) and State v. Berry, 592
S.W.2d 553 (Tenn. 1980). In its order denying Defendant’s motion for new trial, the trial
court stated without specificity that it had again reviewed its factual findings in light of
Massiah and Berry and found no Sixth Amendment violation. See Montejo v. Louisiana, __
U.S. __, 129 S. Ct. 2079, 2090 (2009) (finding that because the right to counsel under both
the Fifth and Sixth Amendments “is waived using the same procedure, . . . doctrines ensuring
voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the
Sixth Amendment waiver); Patterson v. Illinois, 487 U.S. 285, 292-93, 108 S. Ct. 2389, 2395
-25-
(1988) (concluding that a determination of whether a defendant has waived his right to
counsel under either the Fifth or the Sixth Amendment draws upon the same factual
findings).
The trial court made extensive factual findings concerning the circumstances
surrounding the giving of Defendant’s statements on August 12, 2005, and the record has
been sufficiently developed to permit review on appeal of Defendant’s challenge to the
admissibility of his statements under both the Fifth and Sixth Amendments.
A. Fifth Amendment Right to Counsel
The Fifth Amendment to the United States Constitution, applicable to the states
through the Fourteenth Amendment, states that “[n]o person ... shall be compelled in any
criminal case to be a witness against himself.” Similarly, the Tennessee Constitution states
“that in all criminal prosecutions, the accused ... shall not be compelled to give evidence
against himself.” Tenn. Const. art. I, § 9. Thus, a suspect has the right to have counsel
present during a custodial interrogation. Miranda, 384 U.S. at 460-72, 86 S. Ct. at 1625-26.
Once a suspect invokes his right to counsel under the Fifth Amendment, he or she “is not
subject to further interrogation by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication, exchanges, or conversations
with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85
(1981). The Miranda court held that “[b]y custodial interrogation, we mean questioning
initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.
Ct. at 1612 (footnote omitted). “Custodial interrogation” for Fifth Amendment purposes
includes not only express questioning, but also its “functional equivalent” which is defined
as “any words or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1690-
91 (1980).
However, the Miranda court also explained that:
[i]n dealing with statements obtained through interrogation, we do not purport
to find all confessions inadmissible. Confessions remain a proper element of
law enforcement. Any statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence. The fundamental
import of the privilege while an individual is in custody is not whether he is
allowed to talk to the police without the benefit of warnings and counsel, but
whether he can be interrogated. There is no requirement that police stop a
-26-
person who enters a police station and states that he wishes to confess to a
crime, or a person who calls the police to offer a confession or any other
statement he desires to make. Volunteered statements of any kind are not
barred by the Fifth amendment and their admissibility is not affected by our
holding today.
Miranda, 384 U.S. at 478, 86 S. Ct. at 1630.
Defendant argues that his statement to Detective Postiglione that he “felt that his
attorneys would be contacting the police again” was an unequivocal invocation of his right
to counsel, and that Detective Postiglione’s hypothetical example concerning the difference
between an accidental killing and a premeditated killing was the functional equivalent of
interrogation in violation of his Fifth Amendment rights.
There is no question that Defendant was in custody. However, Detective Postiglione
testified that he did not intend to interrogate Defendant during the flight from Los Angeles
to Nashville. Defendant was so informed and advised of his right to remain silent. (We note
that according to the deposition introduced as an exhibit at the suppression hearing,
Defendant invoked his Fifth Amendment privilege against self-incrimination over seventy
times thus illustrating his familiarity with his right to remain silent.) Defendant’s comment
that his attorneys would be contacting the police soon, on its face, is not an unequivocal
request to deal with the police only through counsel. Defendant, an attorney himself, was
clearly aware that he had the right to counsel. He had already spoken to counsel in California
and had retained counsel in Tennessee before he was returned to this State. Defendant
provided the names and telephone numbers of his attorneys to Detective Postiglione during
the flight. At no time, however, did Defendant during the trip express any desire not to talk
to Detective Postiglione until his counsel was present, and the record does not support
Defendant’s contention that he felt coerced to talk.
On the contrary, Defendant continued to initiate conversations with Detective
Postiglione over a two-hour period, falling quiet only to eat or nap. Defendant appeared very
focused on his own agenda which was to find out as much as possible about the State’s
evidence against him and whether a plea agreement with a short sentence was possible. See
Oregon v. Bradshaw, 462 U.S. 1039, 1045-1046, 103 S. Ct. 2830, 2835 (1983) (concluding
that the defendant’s question, “Well, what is going to happen to me now?” evinced “a
willingness and desire for a generalized discussion about the case” and “was not merely a
necessary inquiry arising out of the incidents of the custodial relationship”); State v. Land,
34 S.W.3d 516, 524 (Tenn. Crim. App., 2000) (observing that “[i]t is well established that
questioning initiated by the defendant is not interrogation in the Innis [446 U.S. 291, 100 S.
Ct. 1682 (1980)] sense”) (citing Edwards, 451 U.S. at 484, 101 S. Ct. at 1885)).
-27-
Although a police officer should refrain from making a comment designed to elicit
a response from a defendant, including comments which minimize the crime with which the
defendant is charged, the Edwards Court explained:
[i]f, as frequently would occur in the course of a meeting initiated by the
accused, the conversation is not wholly one-sided, it is likely that the officers
will do or say something that clearly would be interrogation. In that event, the
question would be whether a valid waiver of the right to counsel and the right
to silence had occurred, that is, whether the purported waiver was knowing and
intelligent and found to be so under the totality of the circumstances, including
the necessary fact that the accused, not the police, reopened the dialogue with
authorities.
Edwards, 451 U.S. at 486, 101 S. Ct. at 1885.
Although an officer’s intent may be relevant in determining “whether the officer
should have known his or her words or actions were reasonably likely to invoke an
incriminating response,” the primary focus rests “upon the accused’s perception rather than
on the police officer’s intent.” State v. Sawyer, 156 S.W.3d 531, 534 (Tenn. 2005) (citing
Innis, 446 U.S. at 301, 100S. Ct. at 1690). In the case sub judice, Defendant observed that
“we are just two men having a conversation.” Defendant said that although he did not trust
Detective Postiglione because he was a police officer, he found that Detective Postiglione
“might be an honorable man.” At the conclusion of the flight, Defendant stated that he was
glad that it was Detective Postiglione who had been assigned to escort him back to
Tennessee, that he had no complaints, and that Detective Postiglione had treated him well.
The record does not support Defendant’s contention that he felt that he was being subject to
interrogation during the flight.
Based on our review of the totality of the circumstances surrounding the giving of
Defendant’s statements, we conclude that the evidence does not preponderate against the trial
court’s finding that the admission of Defendant’s August 12, 2005, statements did not violate
Fifth Amendment principles. Defendant is not entitled to relief on this basis.
B. Sixth Amendment Right to Counsel
“Once a defendant is formally charged with an offense, however, the State is no
longer merely engaged in the task of determining who committed an unsolved crime; rather,
it is preparing to convict the defendant of the crime he allegedly committed.” Michigan v.
Harvey, 494 U.S. 344, 364, 110 S. Ct. 1176, 1188 (1990). Once judicial proceedings have
been initiated, a defendant is protected by the Sixth Amendment which states that “[i]n all
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criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defense.” U.S. Const. amend. VI; Brewer v. Williams, 420 U.S. 387, 398, 97 S. Ct.
1232, 1239 (1977). “In Tennessee, the Sixth Amendment right to counsel attaches with the
initiation of criminal charges through an arrest warrant, a preliminary hearing (if no arrest
warrant is issued), or an indictment or presentment (when the charge is initiated by the grand
jury).” State v. Turner, – S.W.3d –, 2010 WL 987076, at *12 (Tenn. 2010) (citing State v.
Mitchell, 593 S.W.2d 280, 286 (Tenn. 1980)).
Defendant was indicted for the charged offenses on December 4, 2004. He was
arrested in Mexico on August 3, 2005, and transported to the Los Angeles County Jail for
extradition proceedings. At the time that Sergeant Postiglione arrived in California to escort
Defendant back to Tennessee on August 12, 2005, judicial proceedings had been initiated
and Defendant’s Sixth Amendment right to counsel had attached. Defendant invoked his
Sixth Amendment right to counsel by retaining counsel in Tennessee before he was returned
to this state on August 12, 2005.
After the initiation of formal charges, the Sixth Amendment guarantees the accused
“the right to rely on counsel as a medium between himself and the State in any critical
confrontation with state officials.” State v. Downey, 259 S.W.3d 732, 733 (Tenn. 2008).
Police initiated interrogation by the State after charges are filed is considered a “critical
stage” of the criminal proceedings. Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 59-60
(1932) (citing Massiah v. United States, 377 U.S. 201, 204-05, 84 S. Ct. 1199, 1201-02
(1964)). After the invocation of the right to counsel, the admission of a defendant’s
incriminating statements deliberately elicited by police officers in the absence of the
defendant’s attorney violates Sixth Amendment principles. Michigan v. Harvey, 494 U.S.
344, 349, 110 S. Ct. 1176, 1179 (1980); Brewer, 430 U.S. at 405, 97 S. Ct. 1232; Massiah,
377 U.S. at 206, 84 S. Ct. at 1203 (1964).
That is not to say, however, that a defendant cannot waive his Sixth Amendment right
to counsel. Montejo v. Louisiana, __ U.S. __, 129 S. Ct. 2079, 2085 (2009). As the Montejo
Court observed:
[o]ur precedents also place beyond doubt that the Sixth Amendment right to
counsel may be waived by a defendant, so long as relinquishment of the right
is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292,
n. 4, 108 S. Ct. 2389 (1988); Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct.
1232 (1977); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019 (1938).
The defendant may waive the right whether or not he is already represented by
counsel; the decision to waive need not itself be counseled. Michigan v.
Harvey, 494 U.S. 344, 352-353, 110 S. Ct. 1176 (1990).
-29-
Id. For Sixth Amendment purposes, “[t]he U[nited] S[tates] Supreme Court has clearly
sanctioned the admissibility of a statement given after the appointment of counsel and even
after defendant has ‘expressed his desire to deal with police only through counsel,’ where
defendant initiates further communication, electing ‘to face the state’s officers and go it
alone,’ and knowingly and intelligently waives his Sixth Amendment right to counsel. State
v. Cauthern, 778 S.W.2d 39, 46 (Tenn. 1989) (quoting Patterson v. Illinois, 487 U.S. 285,
108 S. Ct. 2389 (1988); Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981)); see also
Oregon v. Bradshaw, 462 U.S. at 1045, 103 S. Ct. at 2834.
Because “a Sixth Amendment violation does not depend upon coercion, the protection
of the Sixth Amendment is not waived by conduct that shows only that a defendant’s
statements were not coerced.” Wyrick v. Fields, 459 U.S. 42, 54, 103 S. Ct. 394, 400 (1982).
Therefore, “[t]he State must show that the defendant intelligently and knowingly relinquished
his right not to be questioned in the absence of counsel. The State can establish a waiver
only by proving ‘an intentional relinquishment or abandonment’ of the right to have counsel
present.” Wyrick, 459 U.S. at 54, 103 S. Ct. at 400 (citing Brewer,430 U.S., at 404, 97 S. Ct.,
at 1242, quoting Johnson, 304 U.S. at 464, 58 S. Ct. at 1023).
Defendant argues that the record is devoid of any indication that he intentionally
relinquished his Sixth Amendment right to counsel. Relying on Massiah and State v. Berry,
592 S.W.2d 553 (Tenn. 1980), Defendant contends that Sergeant Postiglione impermissibly
and deliberately elicited incriminating statements from him during the flight.
Both the Massiah court and the Berry court were presented with similar situations.
Each defendant in the two cases had been indicted and had retained counsel. An undisclosed
agent of the State (a co-defendant in Massiah and a disguised Tennessee Bureau of
Investigation agent in Berry) approached the respective defendant at the direction of law
enforcement officials and engaged him in conversation during which each defendant made
incriminating statements concerning his current charges. Massiah, 377 U.S. at 202-03 84 S.
Ct. at 1201; Berry, 592 S.W.2d at 555-56. The Massiah Court concluded that the defendant
“was denied the basic protections of that guarantee [the Sixth Amendment right to counsel]
when there was used against him at his trial evidence of his own incriminating statements,
which federal agents had deliberately elicited from him after he had been indicted and in the
absence of his counsel.” Massiah, 377 U.S. at 206; 84 S. Ct. at 1203; Berry, 592 S.W.2d at
561 (concluding that the eliciting of defendant’s incriminating statements under the
circumstances presented violated the defendant’s Sixth Amendment right to counsel). As the
Berry court observed, “[t]he law will not permit law enforcement officials to do by ruse,
trickery, deceit and deception that which it is not permitted to do openly and honestly.” Id.
-30-
In Massiah and Berry, the statements made by each defendant were voluntary.
However, the disguise of the true identity of the federal agent in Massiah and the role of the
co-defendant in Berry rendered any purported waiver of the right to counsel unknowing. See
United States v. Henry, 447 U.S. 264, 273, 100 S. Ct. 2183, 2188 (1988) (concluding that
“the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply
in the context of [post-indictment] communications with an undisclosed undercover
informant acting for the Government”).
In the case sub judice, however, Defendant clearly understood that Sergeant
Postiglione was a police officer assigned to his case. Defendant had previously demonstrated
that he understood his right to remain silent during his deposition in a civil case, and Sergeant
Postiglione warned Defendant that he had the right to remain silent as soon as Defendant
initiated the first conversation on the way to the car rental company. Defendant also knew
that he had the right to have his counsel present during any interrogation, but he chose to “go
it alone” and enter into a generalized discussion of his case with Sergeant Postiglione.
Bradshaw, 462 U.S. at 1045, 103 S. Ct. at 2834. Based on our review, we conclude that
Defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to
counsel. Defendant is not entitled to relief on this basis.
Defendant submits that even if it is found that he waived his Sixth Amendment right
to counsel, such waiver is presumed invalid under Michigan v. Jackson, 475 U.S. 625, 106
S. Ct. 1404 (1986), overruled in part by Montejo v. Louisiana, __ U.S. ___, 129 S. Ct. 2079,
2091 (2009). In Jackson, two defendants were arrested and arraigned for a variety of
offenses. Each defendant requested the assistance of counsel at the arraignment hearing.
However, after reading each defendant his Miranda rights, the investigating officers initiated
an interrogation before either defendant had the opportunity to consult with their respective
counsel, during which each defendant made incriminating statements. Jackson, 475 U.S. at
627, 106 S. Ct. at 1406-07. Citing Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880(1981), the Jackson court held “that, if police initiate interrogation after a defendant’s
assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the
defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475
U.S. at 636, 106 S. Ct. at 1411; see Edwards, 451 U.S. at 484-485, 101 S. Ct. at 1884-1885)
(concluding that an accused who is in custody, “having expressed his desire to deal with the
police only through counsel, is not subject to further interrogation by authorities until counsel
has been made available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police”).
However, in Montejo, the United States Supreme Court revisited the Jackson rule, that
is, “whether courts must presume that such a waiver [of an accused’s Sixth Amendment right
to counsel] is invalid under certain circumstances.” Montejo, 129 S. Ct. at 2085 (emphasis
-31-
in original). In Montejo, the defendant was charged with first degree murder at a preliminary
hearing and was appointed counsel. Later that day, two police detectives read the defendant
his Miranda rights, and the defendant accompanied them on a search for the murder weapon.
During the excursion, the defendant wrote an inculpatory letter of apology to the victim’s
widow which was admitted into evidence at trial over his objection. Id. at 2082. The
Louisiana Supreme Court affirmed the defendant’s conviction, concluding that the defendant
at no time had requested or asserted his Sixth Amendment right to counsel, and his
subsequent waiver was knowingly, voluntarily and intelligently made. Id. at 2083 (citing
State v. Montejo, 974 So. 2d 1238, 1262 (La. 2008).
On appeal, the defendant argued that the trial court erred in not finding the letter
inadmissible under Michigan v. Jackson. In beginning its analysis, the Montejo court
observed that:
Jackson represented a “wholesale importation of the Edwards rule into the
Sixth Amendment.” Cobb, [532 U.S.] at 175, 121 S. Ct. 1335. The
Jackson Court decided that a request for counsel at an arraignment should
be treated as an invocation of the Sixth Amendment right to counsel “at
every critical stage of the prosecution,” 475 U.S., at 633, 106 S. Ct. 1404,
despite doubt that defendants “actually inten[d] their request for counsel to
encompass representation during any further questioning,” id., at 632-633,
106 S. Ct. 1404, because doubts must be “resolved in favor of protecting the
constitutional claim,” id., at 633, 106 S. Ct. 1404. Citing Edwards, the
Court held that any subsequent waiver would thus be “insufficient to justify
police-initiated interrogation.” 475 U.S., at 635, 106 S. Ct. 1404. In other
words, we presume such waivers involuntary “based on the supposition that
suspects who assert their right to counsel are unlikely to waive that right
voluntarily” in subsequent interactions with police. Harvey, supra, at 350,
110 S. Ct. 1176.
Montejo, 129 S. Ct. at 2086.
The Montejo court noted that the fact that:
the doctrine established by Miranda and Edwards is designed to protect
Fifth amendment, not Sixth Amendment, rights. But that is irrelevant.
What matters is that these cases, like Jackson, protect the right to have
counsel during custodial interrogation – which right happens to be
guaranteed (once the adversary judicial process has begun) by two sources
of law. Since the right under both sources is waived using the same
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procedure, Patterson, [487 U.S.] at 296, 108 S. Ct. 2389, doctrines ensuring
voluntariness of the Fifth Amendment waiver simultaneously ensure the
voluntariness of the Sixth Amendment waiver.
Montejo, 129 S. Ct. at 2090. Accordingly, the Montejo court overruled Jackson to the extent
that Jackson concluded that a subsequent waiver of the Sixth Amendment right to counsel
is presumed invalid. The Montejo court remanded the case to determine if the defendant’s
waiver was knowing and voluntary under both Sixth Amendment and Fifth Amendment
principles. Id. at 2092.
Defendant argues, however, that although Montejo overruled Jackson for federal
constitutional purposes, our supreme court in State v. Downey, 259 S.W.3d 723 (Tenn. 2008)
adopted Jackson for purposes of Tennessee’s constitution. In Downey, the defendant was
arrested for especially aggravated robbery, conspiracy to commit especially aggravated
robbery, aggravated burglary, theft, and attempted first degree murder. Id. at 731. After his
arrest, the defendant observed that he had “intended to turn himself in after he got an
attorney.” Id. at 732. The defendant was read his Miranda rights after he arrived at the
police station. The defendant waived his rights and confessed to committing the charged
offenses. The defendant filed a motion to suppress his statement prior to trial which was
denied by the trial court. Id. at 731.
On appeal, the defendant argued that he had made an unequivocal request for counsel
during the drive to the police station, and that the admission of his statement violated both
Fifth and Sixth Amendment principles. As for the defendant’s protections under the Sixth
Amendment, our supreme court noted that “[u]nlike the Fifth Amendment, under the Sixth
Amendment, the accused need not make an unequivocal request for counsel to invoke the
right. See Michigan v. Jackson, 475 U.S. 625, 633, 106 S. Ct. 1404 (1986). A presumption
exists that the accused requests the services of counsel at every critical stage of the
prosecution. Id.” Downey, 259 at 733. However, and notwithstanding Jackson’s admonition
that any waiver of counsel after the adversary procedure has commenced is invalid, the
Downey court also noted that “[t]he waiver of an accused’s right to counsel after receiving
Miranda warnings, or their equivalent, will generally suffice to establish a knowing and
intelligent Sixth Amendment waiver of right to counsel, thus permitting the introduction of
post-arrest statements.” Id. (citing Patterson, 487 U.S. at 292-93, 108 S. Ct. 2389).
Citing Patterson, our supreme court concluded that:
[a]s stated previously, the defendant never requested assistance of counsel. The
trial court found that the mention by the defendant to the arresting officer that
he had intended to turn himself in after getting an attorney was not an
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invocation of his right, and we hold that the evidence does not preponderate
against that conclusion. Additionally, the defendant waived any [Sixth
Amendment] right that had attached by signing the waiver after receiving the
Miranda warnings.
Downey, 259 S.W.3d at 733 (citing Patterson, 487 U.S. at 292-93, 108 S. Ct. 2389).
Nonetheless, the facts and circumstances presented in Jackson, Montejo, and Downey
are clearly distinguishable from those in the case sub judice. Each of the cited cases
concerned a police-initiated interrogation of a defendant whose Sixth Amendment right to
counsel had attached and the interrogation was without the presence of counsel. In this case,
Defendant was the one who initiated the conversations with Detective Postiglione. Neither
Jackson, Montejo, nor Downey concluded that an accused, as in the case sub judice, may not
initiate post-indictment conversations with police officers concerning his or her case, and
voluntarily, knowingly, and intelligently waive his or her Sixth Amendment right to counsel.
See e.g. Montejo, 129 S. Ct. at 2085 (concluding that “[o]ur precedents also place beyond
doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as
that relinquishment of that right is voluntary, knowing, and intelligent”); Jackson, 475 U.S.
at 627 (concluding that waivers are insufficient to justify police-initiated interrogations after
the request for counsel in a Sixth Amendment analysis); Downey, 259 S.W.3d at 733 (finding
no unequivocal request for counsel during a police-initiated interrogation). Defendant is not
entitled to relief on this issue.
C. Rule 408 of the Tennessee Rules of Evidence
Defendant argues that even if he voluntarily waived his Fifth and Sixth Amendment
right to counsel, his statements to Detective Postiglione concerning a possible plea agreement
were inadmissible pursuant to Rule 408 of the Tennessee Rules of Evidence. Defendant
acknowledges that Detective Postiglione was not authorized by the District Attorney
General’s Office to enter into plea negotiations on behalf of the State as is required by Rule
410 of the Tennessee Rules of Evidence before such evidence is inadmissible. Defendant
submits, however, that an accused’s plea discussions with someone other than the
prosecuting attorney or the prosecuting attorney’s agent during a criminal prosecution are
still inadmissible pursuant to Rule 408.
Rule 408 provides that “[e]vidence of (1) furnishing or offering to furnish or (2)
accepting or offering to accept a valuable consideration in compromising or attempting to
compromise a claim, whether in the present litigation or related litigation, which claim was
disputed or was reasonably expected to be disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of a civil claim or its amount or a criminal
-34-
charge or its punishment.” Tenn. R. Evid. 408. Defendant argues that an indictment is a
“claim” for purposes of Rule 408, and the potential length of imprisonment he faces
represents a “valuable consideration in compromising or attempting to compromise” the
charges against him.
Both rules of evidence concern the admissibility of settlement negotiations at trial.
Rule 410 addresses the admissibility of settlement negotiations in a criminal case in a civil
or criminal proceeding. Tenn. R. Evid. 410; see State v. Hinton, 42 S.W.3d 113, 122 (Tenn.
Crim. App. 2000) (noting that only statements made to the prosecuting attorney or the
prosecuting attorney’s agent will be inadmissible under Rule 410). Rule 408, on the other
hand, addresses the admissibility of settlement negotiations regarding a civil claim in a civil
or criminal proceeding. Tenn. Rule Evid. 408 (emphasis added); see Neil P. Cohen, et al.,
Tennessee Law of Evidence §4.08[2], at 4-146 (5th ed.2005) (observing that “Rule 408
encourages settlements in civil cases by excluding some evidence generated in negotiations”
while “Rule 410 accomplishes the same objective in criminal cases by excluding certain
evidence in criminal plea negotiations and proceedings”). As Professor Cohen points out,
“Rule 410 differs from [Rules 408 and 409] by applying to negotiations in criminal cases.”
Id. §4.10[2], at 4-158. Defendant’s argument that any statements concerning a possible plea
agreement made by an accused to anyone, whether an agent of the State or not, ignores the
different focuses of Rules 408 and 410 and would render Rule 410 superfluous.
Based on our review, we conclude that the trial court did not err in finding that
Defendant’s statements to Detective Postiglione concerning the possibility of a plea
negotiation were not inadmissible under Rule 408 of the Tennessee Rules of Evidence.
Defendant is not entitled to relief on this issue.
II. Admission of Defendant’s Statements to Nathaniel Farris
Defendant argues that the trial court erred in denying his motion to suppress Mr.
Farris’ testimony about the conspiracy to murder Carolyn and Lawrence Levine. Relying on
Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964) and State v. Berry, 592
S.W.2d 553 (Tenn. 1980), Defendant contends that Mr. Farris’ statements were deliberately
elicited in violation of his Sixth Amendment right to counsel. Citing United States v. Hoffa,
385 U.S. 293, 87 S. Ct. 408 (1966) and Texas v. Cobb, 532 U.S. 162, 121 S. Ct. 1335 (2001),
the State submits that Defendant’s Sixth Amendments rights had not yet attached to the then
uncharged conspiracy offense, and nothing in Defendant’s conversations with Mr. Farris
directly implicated him in the indicted offenses of second degree murder, tampering with
evidence, or abuse of a corpse. The State argues, therefore, that the testimony did not violate
Defendant’s Sixth Amendment right to counsel as to the indicted offenses and was relevant
as to Defendant’s identity as the perpetrator of the charged offenses under Rule 404(b) of the
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Tennessee Rules of Evidence. In his reply brief, Defendant challenges the State’s assertion
that Mr. Farris’ statements were unrelated to the indicted offenses citing United States v.
Bender, 221 F.3d 265 (1st Cir. 2000). Defendant submits that if, as the State argues on
appeal, his statements to Mr. Farris were not incriminating as to the indicted offenses, then
the challenged testimony would not be relevant to any material issue at trial and thus are
inadmissible under Rule 404(b).
We first address Defendant’s argument under Rule 404(b) of the Tennessee Rules of
Evidence. Generally, a party may not introduce evidence of an individual’s character or a
particular character trait in order to prove that the individual acted in conformity at a certain
time. Tenn. R. Evid. 404(a). In other words, a party may not use character evidence to show
that a person acted in a particular way because he or she had a propensity to do so. State v.
Moore, 6 S.W.3d 235, 239 (Tenn. 1999); State v. Parton, 694 S.W.2d 299, 304 (Tenn. 1985)
(observing that evidence of another crime is not admissible to show that the defendant is the
kind of person who would tend to commit the offense); State v. Tizard, 897 S.W.2d 732, 743
(Tenn. Crim. App. 1994) (noting that character evidence may not be used to show a
propensity to act).
In addition, evidence “of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the character trait.” Tenn.
R. Evid. 404(b). The following conditions must be satisfied before allowing such evidence:
(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).
While evidence of a prior crime, wrong, or act is not admissible to prove that a
defendant had the propensity or disposition to commit the crime, it may be relevant and
admissible to prove issues such as identity, intent, motive, opportunity, or absence of mistake
or accident. See State v. Shropshire, 45 S.W.3d 64, 75 (Tenn. Crim. App. 2000). Where the
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trial court has been called to pass upon the admissibility of evidence of other crimes, wrongs,
or acts under Rule 404(b), its determination is entitled to deference when it has substantially
complied with the procedural requisites of Rule 404(b). State v. Thacker, 164 S.W.3d 208,
240 (Tenn. 2005) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).
Prior to Mr. Farris’ testimony, the trial court conducted a Rule 404(b) hearing to
determine the relevance of the proffered evidence. At the conclusion of the hearing, the trial
court found that evidence concerning a conspiracy to murder the State’s witnesses was
relevant to the identity of the perpetrator of the charged offenses, and probative as “both
inconsistent with [a] claim of innocence and evidencing a consciousness of guilt.” See State
v. Austin, 87 S.W.3d 447, 477 app. (Tenn. 2002) (citations omitted) (holding that
“[g]enerally, 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”);
Tillery v. State, 565 S.W.2d 509, 511 (Tenn. Crim. App. 1978) (citations omitted)
(concluding that “[a]ny 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”).
On appeal, Defendant concedes the relevancy of the conspiracy evidence in his
murder trial but contends that its probative value was substantially outweighed by its unfair
prejudice, the effect of which Defendant describes as “monumental.” As this Court has
previously recognized, however, “[a]ny evidence which tends to establish the guilt of an
accused is highly prejudicial to the accused, but this does not mean that the evidence is
inadmissible as a matter of law.” State v. Dulsworth 781 S.W.2d 277, 287 (Tenn. Crim. App.
1989). Rather, to be inadmissible, the evidence must be unfairly prejudicial. “[T]he mere
fact that evidence is particularly damaging does not make it unfairly prejudicial.” State v.
Gentry, 881 S.W.2d 1, 7 (Tenn. Crim. App. 1993). Rather, evidence which is unfairly
prejudicial is that which has an undue tendency to suggest a decision on an improper basis,
frequently, though not necessarily, an emotional one. See State v. Banks, 564 S.W.2d 947,
951 (Tenn. 1978). Thus, this Court has determined that evidence should not be admitted
when its primary purpose “is to elicit emotions of ‘bias, sympathy, hatred, contempt,
retribution, or horror.’” State v. Collins 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998).
The decision to admit or exclude evidence on the basis of relevancy is generally left
to the trial court’s discretion. See State v. James, 81 S.W.3d 751, 760 (Tenn. 2002). As
alluded to by the trial court, because the victim’s body was never found, the State would be
required to prove the identity of the perpetrator and the corpus delecti by circumstantial
evidence. The trial court found that the challenged evidence was “highly probative” and
went “directly to the defendant’s consciousness of guilt and could tend to negate any claim
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of innocence made by him.” The trial court found that the probative value of Mr. Farris’
testimony was not outweighed by its prejudice. Based on our review, we conclude that the
trial court did not abuse its discretion in finding the evidence of the conspiracy to murder Mr.
and Mrs. Levine admissible under Rule 404(b) of the Tennessee Rules of Evidence.
Defendant is not entitled to relief on this issue.
However, even if evidence is relevant under Rule 404(b), the manner in which the
evidence is obtained by the State may violate a defendant’s Sixth Amendment right to
counsel. As noted previously, once a defendant’s Sixth Amendment right to counsel has
attached, the State may not directly or indirectly obtain incriminating statements from a
defendant concerning the charged offense outside the presence of the defendant’s counsel
unless the defendant voluntarily and knowingly waives his right to counsel. Harvey, 494
U.S. at 349, 110 S. Ct. at 1179; Brewer, 430 U.S. at 405, 97 S. Ct. at 1232; Massiah, 377
U.S. at 206, 84 S. Ct. at 1203. Incriminating statements concerning an indicted offense
obtained in violation of the Sixth Amendment are not admissible in a trial of the offense for
which the defendant has been formally charged at the time the statements were made. See
Massiah, 377 U.S. at 206, 84 S. Ct. at 1203. On the other hand, a defendant’s voluntary
statements concerning a crime for which he or she has not yet been charged are not afforded
Sixth Amendment protection. Such statements are admissible in a subsequent trial of the
previously uncharged offense because the Sixth Amendment right to counsel had not yet
attached to the uncharged offense. Cobb, 532 U.S. at 173, 121 S. Ct. at 1344. What is not
specifically addressed in these United States Supreme Court opinions is whether an indicted
defendant’s voluntary statements about a separate offense for which he or she has not been
formally charged are admissible, if relevant, in the trial of the indicted offenses. See State
v. Tony Wayne Snyder, No. 03C01-9403-CR-00101, 1995 WL 687581 (Tenn. Crim. App.,
at Knoxville, Nov. 21, 1995), perm. to appeal denied (Tenn. May 13, 1996).
The issue is whether Defendant’s statements to Mr. Farris which incriminate
Defendant in the murder of Janet March, but do not include comments directly about the
homicide of Janet March, were obtained in violation of the Sixth Amendment.
After the United States Supreme Court’s decisions in Massiah and Brewer, the
Tennessee Supreme Court reviewed a Sixth Amendment challenge to statements elicited by
an undercover agent of the Tennessee Bureau of Investigation (T.B.I.) in State v. Berry, 592
S.W.2d 553 (Tenn. 1980). In Berry, T.B.I. agent David Rhea was assigned a false identity
with fabricated charges and was placed in the same jail as the defendant, who had been
accused of the first degree murder of his father-in-law, John Shanks. Id. at 555. Agent
Rhea’s goal was ostensibly to secure information concerning possible threats by the
defendant against the State’s witnesses in the upcoming murder trial. The defendant began
conversing with Agent Rhea, whom he knew as “Turnblazer,” and told Agent Rhea that he
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wanted to find someone to kill two T.B.I. agents involved in the investigation of his case.
Agent Rhea told the defendant that he would kill the agents in exchange for $10,000, and the
defendant suggested that Agent Rhea use dynamite to accomplish the offenses. Id. at 556.
During their conversations, the defendant also made several incriminating statements
concerning the charged offense of the murder of Mr. Shanks although he stopped short of
admitting that he had killed Mr. Shanks. Id.
On the basis of the record, the court concluded:
(1) that defendant was indicted for first degree murder; (2) that he was
given Miranda warnings; (3) that he employed counsel; (4) that the law
enforcement officials knew he was represented by counsel; (5) that he was
confined in the Greeneville City Jail; (6) that Agent Rhea of the Tennessee
Bureau of Investigation, posing as a captured felon, was placed in jail with
him; (7) that defendant, believing him to be a “tough character,” and not
having any idea or suspicion of his true identity, initiated a conversation
with him; (8) that during the course of this conversation numerous
incriminating statements were made; (9) that Rhea did not interrogate him
in the conventional sense, but did engage in general conversation during the
course of which he asked questions and received answers; and (10) that
there was no waiver of his right to counsel.
Id. at 561. Our supreme court concluded that the trial court erred in not suppressing the
defendant’s statements to Agent Rhea relating to the charged offense of first degree
premeditated murder. Also significant to the court was the paucity of proof at trial which
supported the State’s assertion that Agent Rhea was placed in the jail to prevent harm to the
State’s witnesses in the murder trial, rather than to elicit incriminating statements about the
murder. Therefore, the court concluded that “no parts of this interrogation may be presented
to the jury on retrial.” Id.
After the decision in Berry was issued, the United States Supreme Court clarified that
the Sixth Amendment right to counsel is “offense specific.” McNeil v. Wisconsin, 501 U.S.
171, 175, 111 S. Ct. 2204, 2207 (1991). That is, a defendant’s invocation of his or her right
to counsel as to an indicted offense is not an invocation of the right to counsel in future
prosecutions. Id. In McNeil, the defendant was arrested pursuant to a warrant for an armed
robbery which had been committed in West Allis, Wisconsin. While in custody, the
defendant waived his Miranda rights and confessed to the offenses of murder, attempted
murder, and armed robbery which he had committed in Caledonia, Wisconsin. The
defendant sought to suppress his confession in the trial of the Caledonia offense, arguing that
once his right to counsel attached as to his West Allis offense, any subsequent waiver of his
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right to counsel regarding other offenses, including the Caledonia offenses, was invalid. Id.
501 U.S. at 174-75, 111 S. Ct. at 2207. The Supreme Court disagreed concluding that
“[b]ecause petitioner provided the statements at issue here before his Sixth Amendment right
to counsel with respect to the Caledonia offenses had been (or even could have been)
invoked, that right poses no bar to the admission of the statements in this case.” Id. at 176,
111 S. Ct. at 2208 (emphasis in original).
After McNeil, the United States Supreme Court, in Texas v. Cobb, 532 U.S. 162, 121
S. Ct. 1335 (2001), rejected the defendant’s argument that the Sixth Amendment’s right to
counsel included all offenses which were “factually related” to the indicted offenses. In
Cobb, Lindsey Owings reported to the Walker County, Texas, Sheriff’s Office that his home
had been burglarized and his wife and daughter were missing. The defendant was developed
as a suspect and confessed to committing the burglary at the Owings residence. However,
he denied any knowledge of the whereabouts of Ms. Owings and her daughter. The
defendant was subsequently indicted for burglary and counsel was appointed to represent
him. Id. at 165, 121 S. Ct. at 1339. While free on bond, the defendant confessed to his father
that he had killed Ms. Owings and the child, and his father then contacted police. The
defendant was taken into custody and given Miranda warnings. He waived his Miranda
rights and confessed the murders to police. At his murder trial, the defendant sought to
suppress his confession arguing that his Sixth Amendment right to counsel had attached to
all of the offenses because they arose out of the same criminal transaction. Id. at 166, 121
S. Ct. at 1340. The United States Supreme Court observed that some state courts and Federal
Courts of Appeal have interpreted “McNeil’s offense-specific definition” to include a
defendant’s “crimes that are ‘factually related’ to a charged offense.” Id. at 168, 121 S. Ct.
at 1340 (footnote omitted). However, the court once again cautioned that the Sixth
Amendment right to counsel is offense specific and attaches only to charged offenses and
other “offenses that, even if not formally charged, would be considered the same offense”
under the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932).
Cobb, 532 U.S. at 169, 121 S. Ct. at 1341.
The trial court in the case sub judice relied on Cobb and State v. Tony Wayne Snyder,
in finding Defendant’s incriminating statements concerning the conspiracy to kill the Levines
admissible in his murder trial. The Cobb decision, however, although reiterating that the
Sixth Amendment right to counsel is offense specific, did not address the admissibility in that
case of the defendant’s confessions to the “uncharged” murder offenses (which, in this case,
is that of conspiracy to murder the Levines) during the trial on the “charged” offense of
burglary (which, in this case, is that of the murder of Janet March). See Cobb, 532 U.S. at
173, 121 S. Ct. at 1344 (concluding that the defendant’s confessions to the murders of Ms.
Owing and her daughter were admissible in the murder trial) (emphasis added).
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In Tony Wayne Snyder, the defendant was charged with conspiracy to commit first
degree murder, aggravated arson, and theft over $1,000 after he set fire to his girlfriend’s
mother’s house and left the scene with his girlfriend in her mother’s car. The defendant
confessed to the offenses after being advised of his Miranda rights. Tony Wayne Snyder,
1995 WL 687581, at *1. Before trial, Philip Denton, an inmate at the jail, told a police
officer at the jail that the defendant had asked Mr. Denton to testify that the defendant’s
confession was coerced. Mr. Denton also reported that the defendant had made threats
against the law enforcement officials involved in the case and their families. Id. at *2.
Arrangements were made for the taping of the defendant’s conversations with Mr. Denton.
In one taped conversation, the defendant offered Mr. Denton three packs of cigarettes and
two dollars to testify falsely, and in another he offered three cigarettes and forty cents. Id.
At his trial, the State introduced the taped conversations over the defendant’s objection. The
defendant argued on appeal that the introduction of this evidence violated his Sixth
Amendment right to counsel.
The court observed that although the defendant’s Sixth Amendment rights had
attached as to the conspiracy, arson, and theft offenses, “that right had not yet evolved as to
subornation of perjury because no adversarial proceedings had been initiated.” Id. (citing
Massiah, 377 U.S. at 206). The Tony Wayne Snyder court also observed that the United
States Supreme Court in Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 489 (1985) “did not
make clear whether evidence of the separate crime, where relevant, would be admissible in
the trial on the prior charges wherein the defendant’s Sixth Amendment rights had already
attached.” 1995 WL 687581, at *3 (citing Moulton, 474 U.S. at 179-180, 106 S. Ct. at 489).
Based upon its review, the court concluded that the admission of the tapes into evidence did
not violate the defendant’s Sixth Amendment right to counsel. The court found that:
Here, the tape-recorded statements of the defendant did not include any information
about the crimes with which he had already been charged. The defendant was not
directly incriminated by the content. From all outward appearances, the purpose of the
“wire” was to corroborate evidence of his attempt to get Denton to falsely testify.
Thus, the admission of the statements, evidence of the defendant’s guilt of a separate
offense, did not compromise his right to counsel on the initial charges.
Id. at *4 (citing Greico v. Meachum, 533 F.2d 713, 717 (1 st Cir. 1976).
Defendant points out in his brief that Greico has subsequently been abrogated in the
First Circuit. See United States v. Bender, 221 F.3d 265 (1st Cir. 2000) (citing United States
v. Lozada-Rivera, 177 F.3d 98, 107 (1st Cir. 1999). In Bender, the defendant was arraigned
on the charge of being a felon in possession of a firearm, and was assigned counsel. Bender,
221 F.3d at 267. While incarcerated, the defendant discussed with two fellow inmates a
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scheme to fabricate an alibi for the charged offense, and a plot to kidnap and murder the
government’s witnesses. Id. The inmates reported the plots to government agents, and an
undercover officer was placed in the jail to meet with the defendant, who thought he was
meeting his hired alibi. Id. The defendant made incriminating statements about the alibi and
kidnapping plots but not about the charged firearm possession offense. The First Circuit
Federal Court of Appeals concluded that the eliciting of incriminating statements by the
undisclosed government agent concerning the defendant’s plot to fabricate an alibi and to
possibly kidnap and murder government witnesses, although not directly incriminating as to
the indicted offense of felon in possession of a weapon, were indirectly incriminating by
showing “‘that a guilty mind was at work’” and therefore obtained in violation in the
defendant’s Sixth Amendment right to counsel. Id. at 269 (quoting U.S. v. Lozada-Rivera,
177 F.3d 98, 107 (1999)).
Nonetheless, the Tony Wayne Snyder court also relied on United States v. Moschiano,
695 F.2d 236 (7th Cir. 1982) which arrived at a different conclusion than the Bender court.
In Moschiano, the Seventh Circuit Court of Appeals concluded that post-indictment
statements concerning a separate crime which did not refer to the charged offense may be
introduced, if relevant, in a trial on the charged offenses. Id. at 241; see also United States
v. Merritts, 527 F.2d 713, 716 (7th Cir. 1975) (observing that Massiah “applies to
incriminating statements about past conduct obtained after indictment through the equivalent
of police interrogation . . . [and] does not confer immunity for utterances, such as Merritts’
solicitation of a bribe, which are not statements about past conduct but constitute criminal
acts in themselves”).
Defendant argues that despite these conflicting views, our supreme court’s decision
in Berry follows the analysis reflected in Bender, that is, that all post-indictment statements
by an accused under indictment concerning other crimes which have not yet been charged
must be excluded from the trial on the indicted offense to which Sixth Amendment rights
have attached. The State submits that Berry was issued before the United States Supreme
Court’s guidance in Mouton and Cobb. The State also points out that one of the factors of
significance to the Berry court is not present in the case sub judice, that is, there is no
evidence in the record that using Mr. Farris to obtain more information about the conspiracy
plot was merely a ruse by the State to encourage incriminating statements from Defendant
about the charged offenses. See Moschiano, 695 F.2d at 242-243 (quoting United States v.
Anderson, 523 F.2d 1192, 1195-96 (5th Cir. 1975)) (observing that “post-indictment evidence
[which] was not the product of an ongoing investigation but rather was a ‘special single-shot
confrontation . . . arranged . . . to obtain from the defendant evidence of specific intent to
shore up the government’s case’” is not admissible at the trial on the indicted charges).
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In State v. Berry, however, our supreme court specifically stated that it “predicat[ed]
this holding on the Sixth Amendment to the Constitution of the United States, made
applicable to the states by the Fourteenth Amendment.” Berry, 592 S.W.2d at 561. In State
v. Webb, 625 S.W.2d 281 (Tenn. Crim. App. 1980), this Court also reviewed a Sixth
Amendment challenge to the admission at trial of incriminating jailhouse statements made
by a defendant to his nephew in front of an undercover agent who had been placed in the
defendant’s cell in order to procure information concerning the defendant’s role in the
charged offenses of rape and murder. Id. at 283-84. Relying on Massiah and Brewer, and
citing Berry as analogous to the defendant in Webb, we concluded that the statements “were
deliberately elicited by action of the state” in violation of the defendant’s Sixth Amendment
right to counsel. Id. at 284. Therefore, we find the opinion in Tony Wayne Snyder, in which
this Court followed federal law without citing Berry, very persuasive.
Accordingly, based on our review, we conclude that the admission of Defendant’s
statements to Mr. Farris concerning the as yet uncharged conspiracy to kill the Levines in his
trial for the murder of Janet March did not violate Defendant’s Sixth Amendment right to
counsel.
However, based on the facts present in the case sub judice, we conclude that even if
the admission of this testimony was error, such error was harmless beyond a reasonable
doubt. Mr. Farris testified that he and Defendant talked on a daily basis for approximately
one month before Mr. Farris disclosed the conversations to police officers and agreed to tape
record his conversations with Defendant. Thus, before Mr. Farris acted on behalf of the State
in gathering information about the conspiracy, Defendant made several incriminating
statements to Mr. Farris including his request that Mr. Farris kill Carolyn and Lawrence
Levine and his plan to obtain Mr. Farris’ release on bond so that he could commit the
offenses. A defendant’s statements to a third party, “both written and oral, are admissible,
subject to exclusion only by other rules of evidence.” Tenn. R. Evid. 803(b)(3); State v.
Lewis, 235 S.W.3d 136, 145 (Tenn. 2007) (citing State v. Binion, 947 S.W.2d 867, 874
(Tenn. Crim. App. 1996); Neil P. Cohen et al., Tennessee Law of Evidence § 8.06 [3][a], at
8-47). Nor does the United States Constitution provide protection for those who voluntarily
offer information to a confident. Claridy v. State, 522 S.W.2d 759, 768 (Tenn. Crim. App.
1976) (citing Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408 (1966)). Thus, Defendant’s
statements to Mr. Farris before Mr. Farris became an agent of the State were admissible. See
Hartman v. State, 896 S.W.2d 94, 100 (Tenn. 1995) (concluding that “[a]ny admissions made
by the [defendant] before law enforcement officials became involved would of course be
admissible”) (citing Moulton, 474 U.S. at 176, 106 S. Ct. at 487).
The conversations which were taped after Mr. Farris became an agent for the State
provided details of the conspiracy including the type of weapon to be used, various code
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words to be used by Mr. Farris when speaking with Arthur March, and the location where
the offenses would occur. Both Defendant and the State presented other evidence at trial
concerning these details. The conspiracy plot against the Levines was first placed before the
jury during Arthur March’s cross-examination, the video tape of which was played for the
jury before Mr. Farris testified. Mr. March testified on cross-examination that Mr. Farris,
using the name “Bobby Givings,” initiated contact with him using code words given to him
by Defendant. Mr. March said that the code words were a signal to him that Mr. Farris had
talked to Defendant and that Mr. March was to talk to Mr. Farris. According to Mr. March,
it was Mr. Farris who first suggested killing the Levines. Mr. Farris and Mr. March
discussed purchasing a gun with a silencer, the Levines’ schedules, and Mr. Farris’ plan to
stay with Mr. March in Mexico after the killings. Mr. March told Mr. Farris that he did not
want to know the details of the plan, but he acknowledged that he did not tell Mr. Farris “to
stop.” Mr. March denied that Defendant knew any of the details of the conspiracy.
However, Mr. March acknowledged that Mr. Farris told him to send “information” to
Defendant’s sister by email who would then print out the emails and mail them to Defendant.
The State also introduced into evidence the tapes of the telephone conversations
between Arthur March and Mr. Farris during Sergeant Postiglione’s direct examination
without objection. These tapes provide further details concerning the conspiracy including
how and where the offenses should occur, the purchase of a weapon and silencer, the use of
multiple vehicles or license plates, and Mr. Farris’ flight to Mexico after committing the
offenses. In Hartman, our supreme court concluded that the admission of statements
obtained in violation of a defendant’s Sixth Amendment rights by an informant acting on
behalf of the State was harmless error beyond a reasonable doubt where the State presented
other evidence concerning the substance of the inadmissible statement, and the informant’s
testimony before he became an agent of the state, which was admissible at trial, corroborated
the details of the defendant’s inadmissible statements. Hartman, 896 S.W.2d at 100-01.
Based on our review, we conclude that the introduction of the tapes of Defendant’s
conversations with Mr. Farris did not affect the outcome of the trial beyond a reasonable
doubt. See State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001). The victim disappeared from her
residence on August 15, 1996. Arthur March testified that Defendant killed the victim, and
buried her body on vacant land near his residence. Mr. Rodman testified that Defendant was
in the parking lot of the Brixworth Apartments, where the victim’s vehicle was later found,
at approximately 1:00 a.m. on August 16, 1996, with his mountain bike. Mr. March helped
Defendant move the victim’s body from Tennessee to Kentucky. Mr. March located the
garbage bag which Defendant said contained the victim’s remains by following Defendant’s
directions. Mr. March said that the garbage bag contained bones and scraps of clothing. Mr.
March and Defendant drove to Kentucky where Mr. March found a new burial spot for the
victim’s remains while Defendant waited in a motel room. Mr. March, also at Defendant’s
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request, discarded the hard drive of Defendant’s computer and poured bleach, at Defendant’s
request, over the gravel in front of the residence’s back door. Defendant admitted to Mr.
Pulido during an argument in 2001 that “he did [away] with his wife.” Defendant also told
Mr. King that he, Defendant, had killed the victim during an argument over his infidelity by
striking her on the head with a wrench. Defendant confided to Mr. Martin that he should
have killed the Levines, but stopped short of saying “instead of the victim.”
Based on our review and the facts and circumstances presented in the case sub judice,
we conclude that even if Mr. Farris’ testimony about statements made after Mr. Farris agreed
to tape record the conversations were obtained in violation of Defendant’s Sixth Amendment
right to counsel, such error was harmless beyond a reasonable doubt. Defendant is not
entitled to relief on this issue.
III. Admission of Leigh Reames’ Testimony
Defendant argues that the trial court erred in admitting Ms. Reames’s testimony
concerning her allegation of sexual harassment against Defendant in 1991. Defendant also
objects to the admission of two of his letters to Ms. Reames in 1991, and the letter dated
August 13, 1996, addressed to Ms. Reames, as exhibits at trial. Defendant submits that any
connection between these events and the victim’s disappearance was “too remote in time”
and “tenuous, at best” to be relevant to any material issue at trial. Citing State v. Bordis, 905
S.W.2d 214 (Tenn. Crim. App. 1995), Defendant further contends that evidence of his prior
misconduct was improper lifestyle evidence which served only to inflame the jury to his
detriment. Defendant argues, therefore, that the probative value, if any, of evidence of his
“tawdry conduct toward a female co-worker” was outweighed by its prejudicial effect.
At the conclusion of the offer of proof involving Ms. Reames’s testimony, the trial
court found that the evidence of Defendant’s outstanding debt to Ms. Reames was relevant
to the jury’s consideration of motive in that it supported the State’s theory that Defendant and
his wife had been arguing, in the days and weeks prior, over Defendant’s debt to Ms. Reames
and the circumstances giving rise to the debt. See Tenn. R. Evid. 401, 402. The trial court
found that although the debt was initially incurred in 1992, Defendant’s letter to Ms. Reames
requesting an extension of time in which to make the balloon payment was dated August 13,
1996, and postmarked August 16, 1996, the day after the victim disappeared. The court
reasoned that the evidence of the debt was necessary to explain the letters sent by Defendant
to Ms. Reames, which were the cause of some marital strife between Defendant and his wife,
possibly giving Defendant a motive for the murder. The trial court found that the probative
value of the evidence was not substantially outweighed by the danger of unfair prejudice.
See Tenn. R. Evid. 403.
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The trial court also conducted a Rule 404(b) analysis as to the testimony concerning
Defendant’s infatuation with Ms. Reames, although the trial court expressed its doubt that
this evidence was propensity evidence. See id. 404(b). The trial court found that proof of
the basis for the sexual harassment allegations was clear and convincing because Defendant
stipulated at trial that he wrote the letters to Ms. Reames. The trial court found that Ms.
Reames’ testimony was relevant to motive and to corroborate indirectly Mr. King’s testimony
that Defendant told him that he (Defendant) had killed the victim during an argument over
Defendant’s marital infidelities. Even though the prior acts were committed approximately
five years before the victim’s disappearance, Dr. Campbell’s testimony during cross-
examination showed that the victim was angry over Defendant’s conduct with Ms. Reames
between approximately ten and fourteen days before her disappearance. Based on these
findings, the trial court found that the probative value of Ms. Reames’ testimony was not
substantially outweighed by the danger of unfair prejudice.
Evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Once the trial court concludes the
evidence is relevant, the court should exclude the evidence if its probative value is
substantially outweighed by its prejudicial effect. Tenn. R. Evid. 403; State v. James, 81
S.W.3d 751, 757 (Tenn. 2002). A trial court’s decision as to the relevance of evidence under
Rule 401 will be reversed only upon a showing of abuse of discretion. State v. Powers, 101
S.W.3d 383, 395 (Tenn.2003). A trial court’s exercise of discretion will not be reversed on
appeal unless the court “applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.” State v. Shuck,
953 S.W.2d 662, 669 (Tenn.1997).
As noted above, a party may not introduce evidence of an individual’s character or a
particular character trait in order to prove that the individual acted in conformity with that
character or trait at a certain time. The evidence may be relevant and admissible, however,
to prove issues such as identity, intent, motive, opportunity, or absence of mistake or
accident. Tenn. R. Evid. 404(a) and (b); see State v. Shropshire, 45 S.W.3d 64, 75 (Tenn.
Crim. App. 2000). Where the trial court has been called to pass upon the admissibility of
evidence of other crimes, wrongs, or acts under Rule 404(b), its determination is entitled to
deference when it has substantially complied with the procedural requisites of Rule 404(b).
State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005) (citing State v. DuBose, 953 S.W.2d
649, 652 (Tenn. 1997)).
As reflected in his letter to Ms. Reames dated August 16, 1996, Defendant had failed
to make the final balloon payment as required by the settlement agreement with Ms. Reames
dated February 19, 1992, but in his letter he assures Ms. Reames that he will do so by
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October 1, 1996. This evidence does not reflect propensity evidence as contemplated by
Rule 404(a)(1) and Rule 404(b) of the Tennessee Rules of Evidence. See Black’s Law
Dictionary 232 (6th ed. 1990) (defining character evidence as “[t]he aggregate of the moral
qualities which belong to and distinguish an individual person”). That is, the fact that
Defendant was behind in his settlement payments as reflected in the August 13, 1996, letter,
whatever character trait might be drawn from this act, was not offered to prove that
Defendant committed murder because he had a propensity to do so. See Neil P. Cohen, et
al., Tennessee Law of Evidence, §404.2 (3rd ed. 1995) (noting that “character evidence
cannot be used to prove that a person did a certain act because the person had a propensity
to commit it”).
Thus, the admissibility of this evidence is governed by Rules 401 and 403 of the
Tennessee Rules of Evidence. “Rule 403 is a rule of admissibility, and it places a heavy
burden on the party seeking to exclude the evidence.” State v. James, 81 S.W.3d, 751, 757
(Tenn. 2002); see also White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn Ct. App. 1999)
(noting that exclusion under Rule 403 is “an extraordinary remedy that should be used
sparingly”).
In his civil deposition on November 11, 1996, which was introduced as an exhibit at
trial, Defendant testified that the arrangement with Ms. Reames was not a “problem” in his
marriage. Defendant said that he told the victim about the situation “a couple of years ago,”
and that the settlement payments would not affect the household finances. Defendant
acknowledged that he and the victim discussed the matter in February or March of 1996 and
again in June or July of 1996. The State’s theory was that the victim was angry over the
incident with Ms. Reames and the financial obligation attached to it a few days before her
murder, and that these incidents indicated the presence of marital strife in August, 1996.
Based on the foregoing, we conclude that the trial court did not abuse its discretion
in finding that the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. Defendant is not entitled to relief on this basis.
As for Defendant’s conduct toward Ms. Reames, the trial court complied with the
requirements of Rule 404(b) by finding that there was clear and convincing evidence of the
prior act, that the evidence was relevant to the issue of motive, and that the probative value
of the evidence was not substantially outweighed by the danger of unfair prejudice. Tenn.
R. Evid. 404(b)(1)-(4); see State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997) (concluding
that when a trial court substantially complies with the requirements of Rule 404(b), we
review its determination under an abuse of discretion standard).
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At the hearing, the trial court found that although the sexual harassment allegations
occurred in 1991, the evidence presented thus far at trial showed, according to Dr.
Campbell’s testimony on cross-examination, that Defendant’s conduct concerning Ms.
Reames was on the victim’s mind within approximately ten to fourteen days of her murder,
and that the incident made her very angry. Defendant’s typewritten letters to Ms. Reames
were found among the victim’s personal effects after Defendant had removed all of his
personal property from the residence. The letters were in an envelope bearing the logo of a
company that only the victim used, and the victim’s name was handwritten on the envelope.
Ms. Reames testified during the offer of proof that the letters in this envelope were the
original of the second and third letters she received from Defendant. Ms. Levine testified
that the victim had an appointment on August 16, 1996, with an attorney to discuss the filing
of a complaint for divorce. Mr. King testified that Defendant told him that he killed the
victim during an argument over Defendant’s marital infidelities. Based on these factors, we
conclude that the trial court did not abuse its discretion in finding that Ms. Reames’
testimony and the corresponding exhibits was relevant.
Defendant argues that even if relevant, his prior misconduct with Ms. Reames served
only to inflame the jury, and, therefore, any probative value the evidence might have was
outweighed by the danger of unfair prejudice. See State v. Bordis, 905 S.W.2d 214 (Tenn.
Crim. App. 1995). In Bordis, the defendant was convicted of the first degree premeditated
murder of his infant son who died from malnutrition and dehydration. Id. at 218. Prior to
trial, the defendant sought to exclude certain portions of his statement to the investigating
officers concerning his frequenting of bars catering to the homosexual community and
specific details of various types of sexual activities he engaged in on those nights. The State
argued that the evidence was relevant to show that the defendant, who left the victim and his
three-year-old brother home alone while he and his wife went out, had “complete contempt”
for the two children, and the evidence was generally relevant to the elements of first degree
murder. Id. at 430.
This Court found that the evidence of the defendant’s prior sexual misconduct was
character evidence, and the defendant had not placed his character at issue. Nor were the
sexual acts admissible under Rule 404(b) of the Tennessee Rule of Evidence because they
did not show a motive or design to starve the victim to death. Id. at 231. Moreover, the
Court observed that the defendant’s statements could have been redacted to omit the specific
sexual details while still allowing proof of the defendant’s disregard of the safety of his
children when he left them home alone at night.
In the case sub judice, unlike the situation presented in Bordis, the evidence of
Defendant’s prior infatuation with Ms. Reames was relevant to show a motive for the
victim’s death and thus admissible under Rule 404(b). The trial court noted that the letters
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had two or three sentences which could be considered as sexual in nature. For the most part,
however, Defendant’s letters reflected only his rambling thoughts about Ms. Reames, their
future together, his instructions on how Ms. Reames was to communicate with him at the law
firm, and then his sadness and embarrassment when she disclosed the letters to her employer.
The letters clearly did not reach the level of graphic sexual description contained in Bordis
which this Court found had “infiltrated” that trial. Bordis, 905 S.W.2d at 232.
Based on our review, we conclude that the trial court did not abuse its discretion in
finding that the probative value of the evidence of Defendant’s prior relationship with Ms.
Reames was not outweighed by the danger of unfair prejudice. Defendant is not entitled to
relief on this issue.
IV. Admission of the Draft of Defendant’s Novel
Defendant argues that the trial court erred in allowing the State to introduce a draft
of a novel which Defendant sent to Mr. Heller by email for his critique in 1997. Defendant
contends that the draft, which concerns the murder of a small, dark-haired woman, had no
probative value as to any material issue at trial, and, if it did, the prejudicial effect of the
evidence was far greater than its probative value. The State argues that Defendant has
waived consideration of this issue because he failed to object to the introduction of the draft
at trial and failed to provide appropriate references to the record in his brief on appeal. See
Tenn. R. App. P. 36(a) (providing that appellate court need not grant relief where
complaining party “failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of an error”); Tenn. R. App. P. 27(a)(7) (requiring briefed
arguments to include “appropriate references to the record”).
We agree. At trial, Mr. Heller testified, without objection from Defendant, that
Defendant had sent him a draft manuscript of a novel for his critique by email in 1997. The
State moved for introduction of the manuscript as an exhibit at trial without objection. The
State also moved for the introduction of a separate excerpt from the manuscript to be
introduced as an exhibit, again without objection. The State informed the trial court that
defense counsel had received a copy of the manuscript and excerpt, and defense counsel did
not respond. Based on the foregoing, we conclude that Defendant has waived this issue for
purposes of appellate review. See Tenn. R. App. P. 36(a). In addition, based on our review
of the context of the entire trial, we conclude that the admission of this evidence, even if
error, was harmless error. See Tenn. R. App. P. 36(b). Defendant is not entitled to relief on
this issue.
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V. Tolling of the Statute of Limitations
In addition to second degree murder, Defendant was charged with abuse of a corpse,
a Class E felony, and tampering with evidence, a Class C felony. See T.C.A. §§ 39-17-
312(b), 39-16-503. Prosecution for a Class E felony must be commenced within two years
and within four years for a Class C felony. Id. § 40-2-101(b)(4), (b)(3). However, “no
period . . . during which the party charged was not usually and publicly resident within the
state, is included in the period of limitation.” Id. § 40-2-103.
Relying on State v. Sliger, 846 S.W.2d 262 (Tenn. 1993), Defendant argues that the
tolling statute set forth in Tennessee Code Annotated section 40-2-103 impermissibly
interfered with his constitutional right to travel. Defendant submits that as a result of the
application of section 40-2-103, he had to answer to all three charges whereas had he
remained in Tennessee he would have only had to answer to the charge of second degree
murder.
Our supreme court has concluded that statutes of limitation must be “liberally
construed in favor of a criminally accused.” State v. Henry, 834 S.W.2d 273, 276 (Tenn.
1992.) Further, “[e]xceptions that extend the limitation period, such as a provision tolling
the statute during periods of concealment, are to be strictly construed against the state.” Id.
(citations omitted).
Both the United States Supreme Court and the Tennessee Supreme Court have found
that the “[f]reedom to travel throughout the United States has been recognized as a basic
right under the constitution.” Dunn v. Blumstein, 405 U.S. 330, 338, 92 S. Ct. 995, 1001
(1972); Shapiro v. Thompson, 394 U.S. 618, 629-30, 89 S. Ct. 1322, 1399 (1969); Knowlton
v. Board of Law Examiners, 513 S.W.2d 788, 790-91 (Tenn. 1978). Thus, a “State may
neither tax nor penalize a citizen for exercising his right to leave one State and enter
another.” Jones v. Helms, 452 U.S. 412, 418-19, 101 S. Ct. 2434, 2439 (1981); see also
Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 1525 (1999) (concluding that the
constitutional right to travel includes “the right of a citizen of one state to enter and leave
another state”). A statute that unreasonably burdens the right to travel is subject to strict
scrutiny and will be struck down “unless shown to be necessary to promote a compelling
governmental interest.” Memorial Hospital v. Maricopa County, 415 U.S. 250, 262, 94 S.
Ct. 1076 (1974).
In State v. Sliger, our supreme court addressed a right to travel challenge to Tennessee
Code Annotated section 39-15-101 which provides in pertinent part:
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(a) a person commits the crime of nonsupport who fails to provide support
which that person is able to provide and knows he has a duty to provide to a
minor child or to a child or spouse who, because of physical or mental
disability is unable to be self-supporting.
...
(d) A person commits the offense of flagrant nonsupport who:
(1) Leaves or remains without the state to avoid a legal duty to support.
...
(e) Nonsupport under subsection (a) is a Class A misdemeanor. Flagrant
nonsupport under subsection (d) is a Class E felony.
Sliger, 846 S.W.2d at 263.
The defendant in Sliger was a resident of Texas and had never lived in Tennessee.
The defendant’s wife moved from Texas to Tennessee and was later granted a divorce in this
State. After unsuccessful attempts to enforce the Tennessee trial court’s order of child
support in Texas under the Uniform Reciprocal Enforcement of Support Act, the defendant
was indicted for felony flagrant nonsupport in Tennessee under Tennessee Code Annotated
section 39-15-101(d)(1). Sliger, 846 S.W.2d at 263. The State argued that the phrase “or
remains without the state” supported the indictment because of “the defendant’s continuing
presence in Texas, the state of his domicile.” Id. at 264.
The Sliger decision, however, is not helpful to Defendant’s argument. The supreme
court concluded that application of the felony flagrant nonsupport statute to a nonresident,
nonsupporting defendant who had never lived in nor visited Tennessee discriminated
“against the exercise of the constitutional right to travel, which includes the right to select
a domicile.” Id. at 264. The court therefore “construe[d] the felony provision of the statute
as applying only to a resident nonsupporting parent who compounds the misdemeanor
offense of omission (nonsupport) with an action of commission, i.e. ‘leaves or remains
without the state to avoid a legal duty of support.’” Sliger 846 S.W.2d at 265; see Helms,
452 U.S. at 419, 101 S. Ct. at 2440) (emphasis added) (recognizing the validity and benefit
of state statutes that increase the criminal penalties for parents who commit the offense of
nonsupport within a state and then flee that state). That is, a resident’s right to travel is not
infringed when the resident commits the offense in Tennessee and then leaves the State.
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In Helms, the United States Supreme Court upheld a similar Georgia statute against
a right to travel challenge. Helms, 452 U.S. at 413, 101 S. Ct. at 2437. The Georgia statute
at issue, like Tennessee’s statute as interpreted by Sliger, provided that parents who
abandoned a child in Georgia and then left the state would be guilty of a felony while a
parent who remained in Georgia after abandonment of a child would be guilty of a
misdemeanor. Id. The Helms court noted that:
[d]espite the fundamental nature of this right [to travel], there nonetheless are
situations in which a State may prevent a citizen from leaving. Most obvious
is the case in which a person has been convicted of a crime within a State. He
may be detained within that State, and returned to it if he is found in another
State. Indeed, even before trial or conviction, probable cause may justify an
arrest and subsequent temporary detention. Similarly, a person who commits
a crime in a State and leaves the State before arrest or conviction may be
extradited following “a summary and mandatory executive proceeding.”
Michigan v. Doran, 439 U.S. 282, 288, 99 S. Ct. 530, 535 (1978). Manifestly,
a person who has committed an offense against the laws of Georgia may be
stopped at its borders and temporarily deprived of his freedom to travel
elsewhere within or without the State. Edwards v. California, 314 U.S. 160,
184, 62 S. Ct. 164, 172 (1941) (Jackson, J., concurring) [(noting that the right
to travel is not unlimited and, for example, “a fugitive from justice [may not]
claim freely to migrate unmolested”)].
Id. 452 U.S. at 419, 101 S. Ct. at 2440. Therefore, a resident who has committed a criminal
offense in his or her home state which is punishable by imprisonment does not have “an
unqualified right to leave the jurisdiction.” Id., 452 U.S. at 420, 101 S. Ct. at 2441 (citing
Scherling v. Superior Court of Santa Clara County, 22 Cal. 3d 493, 501, 149 Cal. Rptr. 597,
585 P.2d 219, 223-24 (1978)).
The Supreme Court determined that Georgia had a compelling interest in requiring
parents to support their children and concluded that the legislature’s determination that
“abandonment within the State followed by departure is a more serious offense than mere
abandonment” did not impermissibly infringe on the defendant’s right to travel. Id. 452 U.S.
at 423, 101 S. Ct. at 2442.
Also instructive is Scherling v. Superior Court of Santa Clara County, which was
cited by the Helms court. In Scherling, several burglaries were committed in Santa Clara
County in 1966 and 1967. Scherling, 585 P.2d at 497. The defendant’s involvement in these
burglaries was not discovered for several years after he had moved to Coeur d’Alene, Idaho
in July 1969. Id. at 498. When he left California, the defendant provided the Santa Clara
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post office with a forwarding address, listed his name in the Coeur d’Alene telephone
directory, and did not attempt to hide his identity. Id. The defendant’s participation in the
1967 and 1968 burglaries was discovered in 1974 after the defendant was investigated for
burglaries committed in Idaho. The defendant was arrested after he returned to Santa Clara
County in February 1976. Id.
The defendant challenged the tolling statute as an impermissible infringement of his
right to travel. He argued that the three-year statute of limitations applicable to a burglary
offense should not be tolled during his absence from the state. The defendant contended that
he was not fleeing prosecution at the time he left the state, that no arrest warrant had been
issued, and the police knew or should have known of his whereabouts.
The Scherling court found that:
there is clearly a distinction between one who, like defendant, leaves the state
after committing a crime, resulting in the tolling of the statute of limitations
during his absence, and one who has committed no crime but is deprived of a
government benefit merely because he exercises his right to travel to another
state. In the former circumstance, the state has an interest in assuring that the
defendant is available locally not only to enhance the possibility of detection
but also to avoid the burdens of extradition proceedings, should he be charged,
his whereabouts become known, and he refuses to return voluntarily.
Scherling, 585 P. 2d at 223-24; see also Montejo, 129 S. Ct. at 2089 (observing that the state
has a “‘compelling interest in finding, convicting, and punishing those who violate the law’”)
(quoting Moran v. Burbine, 475 U.S. 412, 426, 106 S. Ct. 1135, 1143 (1986));
Commonwealth v. George, 717 N.E.2d 1285, 1290 (Mass. 1999) (noting that the State’s
interest in detecting and prosecuting crime “is sufficient to justify whatever restriction the
tolling provision places on a defendant’s qualified right to leave the State”)).
Defendant had only a qualified constitutional right to travel because he committed
crimes in Tennessee and then chose to leave the State. Helms, 452 U.S. at 421, 101 S. Ct.
at 2441. During the time of his residence outside the State, Defendant was aware that the
investigation of the victim’s disappearance was ongoing, and that he was the focal point of
that investigation. Based on our review, we conclude that the State’s interest in detecting
crime and punishing offenders is compelling, and the tolling of the statute of limitations for
prosecution of the offenses of abuse of a corpse and tampering with evidence after
Defendant’s departure from the State is rationally related to that interest. Defendant is not
entitled to relief on this issue.
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Defendant also submits generally that the tolling statute denies nonresidents their
constitutional right to equal protection of the laws. See U.S. Const. Amend. 14. “The equal
protection provisions of both the federal and state constitutions demand that persons similarly
situated be treated alike.” Lanier v. Rains, 229 S.W.3d 656, 666 (Tenn. 2007) (citing Tenn.
Small Sch. Sys. v. McWherter, 815 S.W.2d 139, 152 (Tenn. 1993)). “Equal Protection
analysis requires strict scrutiny of a legislative classification only when the classification
interferes with the exercise of a ‘fundamental right” (e.g., right to vote, right of privacy), or
operates to the peculiar disadvantage of a ‘suspect class’ (e.g. alienage or race).” State v.
Tester, 879 S.W.2d 823, 828 (Tenn. 1994). Defendant does not contend that he is a member
of a suspect class, and we have concluded that the tolling statute does not impermissibly
interfere with Defendant’s constitutional right to travel. Thus, an equal protection analysis
requires only “that the classification challenged be rationally related to a legitimate state
interest.” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2516-17 (1976).
The tolling statute applies to any party charged with committing a crime and, as
relevant here, was not usually and publicly resident within the state. T.C.A. § 40-2-103
(emphasis added). The statute, therefore, is directed toward any party, whether resident or
nonresident, who commits a crime in this State and then leaves the State and applies equally
to all persons falling within this classification. The United States Supreme Court has noted
that the equal protection clause “announces a fundamental principle” that “the State must
govern impartially.” New York City Transit Authority v. Beazer, 440 U.S. 568, 587-88, 99
S. Ct. 1355, 1367 (1976). Therefore, “[g]eneral rules that apply evenhandedly to all persons
within the jurisdiction unquestionably comply with this principle.”
The tolling statute on its face applies equally to all persons who commit a crime in this
State and then depart. Defendant offers no indication, and there is nothing in the record to
suggest, that the tolling statute has been enforced against him any differently than it would
be against anyone else who engaged in the same conduct. Helms, 452 U.S. at 423-24, 101
S. Ct. at 2442. We have previously concluded that the tolling statute is rationally related to
the State’s compelling interest in detecting and prosecuting crimes, and there is no evidence
that the tolling statute has violated the requirement that the State impartially administer its
laws. Id., New York City Transfer Authority, 440 U.S. at 587, 99 S. Ct. 1366. Defendant is
not entitled to relief on this issue.
Because Defendant’s qualified right to travel was not impermissibly infringed, we
need not consider Defendant’s suggestion that the civil tolling statute be applied to criminal
cases. See Helms, 452 U.S. at 425, 101 S. Ct. at 2443. The United States Supreme Court has
instructed that “the State need not employ the least restrictive, or even the most effective,
wisest, means to achieve its legitimate ends” in the absence of any infringement of a
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fundamental right. Id. 452 U.S. at 425-26, 101 S. Ct. at 2443. Defendant is not entitled to
relief on this issue.
VI. Cumulative Effect of Errors
Defendant argues that the cumulative effect of the alleged errors rendered his trial
fundamentally unfair. However, our careful review of the entire record reveals that there is
no cumulative error that affected Defendant’s right to a fair trial.
CONCLUSION
After a thorough review, we affirm the judgment of the trial court.
_________________________________
THOMAS T. WOODALL, JUDGE
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