State of Tennessee v. Josh L. Bowman - dissenting opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 26, 2013 Session
STATE OF TENNESSEE v. JOSH L. BOWMAN
Direct Appeal from the Criminal Court for Knox County
No. 95152A Jon Kerry Blackwood, Judge
No. E2012-00923-CCA-R3-CD - Filed August 29, 2013
T HOMAS T. W OODALL, J., dissenting.
I concur in that portion of the majority opinion which holds the trial court did not err
by denying the appellant’s motion to suppress his statement. I disagree with the remaining
parts of the opinion and therefore would affirm all the judgments of the trial court.
As noted in the majority opinion, there is nothing in the record on appeal to “reveal
that [the appellant] made any contemporaneous objections to the State’s playing Exhibit 66
[the video with the added transcript] for the jury or the State’s introducing Exhibit 66 into
evidence.” “When a party does not object to the admissibility of evidence, . . . the evidence
becomes admissible notwithstanding any other Rule of Evidence to the contrary, and the jury
may consider that evidence for its ‘natural probative effects as if it were in law admissible.’”
State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (Quoting State v. Harrington, 627 S.W.2d
345, 348 (Tenn. 1981). Tennessee Rule of Criminal Procedure 30.1 provides that “Unless
for good cause the court determines otherwise, the jury shall take to the jury room for
examination during deliberations all exhibits and writings, except depositions, that have
been received in evidence.” Exhibit 66, including the transcription at the bottom of the
video, was made an exhibit at trial without objection according to the record on appeal. It
was therefore admitted as substantive evidence. Furthermore, the jury had access to see all
of Exhibit 66. There was no error by the trial court on this issue.
As to the State v. White, 362 S.W.3d 559 (Tenn. 2012), issue concerning error by the
trial court in its jury instructions, I disagree that error occurred.
The majority opinion states that the Anthony/Dixon/White cases do not hold that if the
victim of the kidnapping was different than the named victim of the accompanying felony,
this fact eliminates the need for due process analysis. Neither, however, does this line of
cases say that an “accompanying felony” is always a felony which occurs in the same time
period as the kidnapping, even if it does not involve the person being kidnapped.
The kidnapping offenses found in chapter 13 of Title 39, Part 3 of Tennessee Code
Annotated and the robbery offenses found in the same chapter and title, but in Part 4 are both
classified by our legislature as offenses against the person of another. The two distinct
offenses of especially aggravated kidnapping of Ms. Graves and the especially aggravated
robbery of Mr. Graves are not “accompanying” felonies to each other, even though they did
occur at virtually the same time and in the same house. No robbery of Ms. Graves
accompanied the especially aggravated kidnapping of Ms. Graves. No kidnapping offense
of Mr. Graves accompanied the especially aggravated robbery of Mr. Graves. As there was
no “accompanying felony” to the especially aggravated kidnapping charge, there was no need
for the additional jury instruction set forth in White. Accordingly, I would affirm all the
judgments.
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THOMAS T. WOODALL, JUDGE
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