State of Tennessee v. Harold D. Doss, Jr. and Jonathan Lamar Hathway

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 15, 2014 Session
STATE OF TENNESSEE v. HAROLD D. DOSS, JR. AND JOHNATHAN
LAMAR HATHAWAY
Appeal from the Criminal Court for Davidson County
No. 2010-D-3315 Mark J. Fishburn, Judge
No. M2012-02201-CCA-R3-CD - Filed June 10, 2014
A Davidson County jury convicted Harold D. Doss, Jr., of first degree felony murder, second
degree murder, especially aggravated robbery, and especially aggravated kidnapping. The
jury convicted Johnathan Lamar Hathaway of first degree felony murder, especially
aggravated robbery, and especially aggravated kidnapping. The trial court merged Defendant
Doss’s convictions for first degree felony murder and second degree murder and ordered
Defendant Doss to serve an effective sentence of life plus thirty years in the Tennessee
Department of Correction. The trial court ordered Defendant Hathaway to serve an effective
sentence of life in the Tennessee Department of Correction. On appeal, Defendant Doss
asserts that: (1) the trial court erred when it denied his motion to sever; (2) the evidence is
insufficient to support his convictions; (3) the trial court erred when it admitted hearsay
evidence; (4) the trial court erred when it permitted the State to amend the indictment during
the trial; (5) his dual convictions for especially aggravated kidnapping and especially
aggravated robbery violate his right to due process; and (6) the trial court improperly
imposed consecutive sentences. Defendant Hathaway asserts that: (1) there is insufficient
evidence to support his convictions; (2) the trial court improperly allowed the State to present
“unreliable evidence” of cellular telephone tower technology through a Tennessee Bureau
of Investigation agent; (3) the trial court erred when it permitted the State to amend the
indictment during the trial; (4) there was juror misconduct; and (5) the trial court applied the
incorrect law governing circumstantial evidence. After a thorough review of the record and
applicable law, we affirm the trial court’s judgments.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.
Peter J. Strianse, Nashville, Tennessee, for the appellant, Harold D. Doss, Jr.
Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Johnathan Lamar
Hathaway.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Rob McGuire and Sarah Davis,
Assistant District Attorneys General for the appellee, State of Tennessee.
OPINION
I. Background and Facts
This case arises from the robbery and shooting of Jiro Kanazawa, the victim, who was
found dead in the America’s Best Value Inn on Brick Church Pike in Nashville, Tennessee.
A Davidson County grand jury indicted Defendant Doss for first degree felony murder, first
degree premeditated murder, especially aggravated robbery, and especially aggravated
kidnapping. The grand jury also indicted1 Defendant Hathaway, for first degree felony
murder, especially aggravated robbery, and especially aggravated kidnapping.
At the October 2011 trial on these charges, the parties presented the following
evidence: Donald Robinette testified that he was the Director of Operations for NSU
Corporation, a family-owned Japanese company. Mr. Robinette said that NSU Corporation
made exhaust components for automotive companies and had two plants in Kentucky: one
in Senora and one in Lebanon.
Mr. Robinette testified that he worked with the victim, Jiro Kanazawa. The victim
worked in quality control and engineering. Mr. Robinette described the victim as both a co-
worker and a friend. At the time of his death, the victim had been working in the United
States for a little over two years. Mr. Robinette said that the victim held two degrees: one
in applied science that he received in the United States, and the other in economics which he
received in Japan.
Mr. Robinette testified that the victim was not at work on October 4, 2009. Mr.
Robinette said that this did not raise concern initially because the victim “commonly worked”
at both of the factories. Mr. Robinette said that he assumed the victim was working at the
other factory on that day. At some point during the day, the victim’s “direct boss” called for
him. When it became evident the victim was missing, Mr. Robinette stated that “we [ ]
started calling hospitals in the Nashville area.”
1
For these crimes a Davidson County grand jury indicted Courtney Lashea Hambric and Christopher
Doss, in addition to Defendant Doss and Defendant Hathaway. Defendant Doss and Defendant Hathway’s
cases were tried together and are the subject of this appeal.
-2-
Mr. Robinette testified that, at a little after 6:00 p.m., a Kentucky State Trooper
arrived and asked if Mr. Robinette recognized a copy of the victim’s driver’s license. When
Mr. Robinette confirmed that the victim was employed by NSU Corporation, the state trooper
provided contact information for the Nashville police. Thereafter, Mr. Robinette learned that
the victim had been fatally shot. Mr. Robinette and several other NSU Corporation
employees met with police in Nashville and gathered information for the victim’s family.
Mr. Robinette also assisted the police in assembling the victim’s bank records.
Ela Vanmali testified that she owned the America’s Best Value Inn on Brick Church
Pike in Nashville, Tennessee. Ms. Vanmali explained the procedure for checking into the
motel. She said that she required identification that included a photograph to “make sure [the
person] matche[d] the photo and ID name.” She explained that if a person seeking to check-
in to the hotel did not have a photo identification, they were declined.
Ms. Vanmali testified that she was working at the motel on Sunday, October 4, 2009.
Ms. Vanmali identified a registration card filled out in her handwriting indicating she had
checked in someone under the name of “Harold Doss,” and she identified her writing of the
number for the driver’s license provided. Ms. Vanmali confirmed that she would have
checked to make sure the person presenting the driver’s license matched the photograph on
the license. Ms. Vanmali recalled that she rented room 118 to “Harold Doss.”
Ms. Vanmali testified that she called room 118 the following morning, Monday,
October 5, 2009, right before check-out time at 11:00 a.m. No one answered the telephone,
so Ms. Vanmali went to the room and knocked on the door. When again no one answered,
she entered the room and saw “somebody laying [sic] there.” She said she closed the door
and called 9-1-1.
Isaac Wood, a Metropolitan Police Department officer, testified that on October 5,
2009, he was dispatched to a motel located on Brick Church Pike. While en route, Officer
Wood was advised that the fire department had already arrived and discovered a deceased
body in room 118 at the motel. Once he arrived, Officer Wood entered the motel room and
observed the victim, an Asian male, lying on the floor with his feet toward the door. The
victim wore only his shirt and underwear. A brown leather belt was tied around one of his
wrists, “which made it appear that his hands had been bound together” and a telephone cord
was wrapped around his waist with a knot tied on the right side of the victim’s body.
Officer Wood testified that he learned the victim’s name by checking the tag on a
vehicle with a Kentucky license tag parked to the rear of the hotel. Using this name, Officer
Wood was able to determine that the victim held a Tennessee driver’s license and identified
the victim by the driver’s license picture.
-3-
Felicia Evans, a civilian employee of the Metropolitan Nashville Police Department,
testified that she worked in the crime scene investigation unit locating, documenting,
collecting, and processing evidence found at a crime scene. Ms. Evans said that, on October
5, 2009, she responded to a crime scene on Brick Church Pike. At the scene, she created a
crime scene diagram that was a visual aid that “la[id] out the area of the scene in question.”
Ms. Evans identified the crime scene diagram that she created of the motel room. Ms. Evans
pointed out that the diagram showed the position of items in the room and numbered
reference points where various pieces of evidence were found. Ms. Evans then identified
photographs taken at the scene.
Ms. Evans testified that a Winchester .9 millimeter Luger cartridge case was located
beside the door to the hotel room and next to the victim. Ms. Evans said that the police also
found a pair of shoes and socks on the hotel room bed, a telephone cord lying by the pillows,
and “a white tip from a latex glove” on top of the bedspread. Another .9 millimeter cartridge
casing was found in the room with a lead projectile fragment lying near the casing. In the
bathroom vanity area, a third .9 millimeter cartridge case was found and a used wash rag was
lying in the sink basin. A fourth .9 millimeter cartridge case was found on the bathroom
floor.
Ms. Evans testified that the police found two “apparent strike marks from a projectile”
on the shower wall of the bathroom. Around the strike marks there appeared to be blood
spatter. Based on these strike marks, police took measurements to help determine the path
of the projectile.
Ms. Evans testified that the scene was processed for latent fingerprints in a variety of
locations within the hotel room most likely to contain fingerprints. Ms. Evans stated that she
submitted the latent prints obtained at the scene to the latent print examiner for analysis.
Laquisha Hughes testified that she first met Defendant Doss in the fall of 2009 at “a
club” through a mutual friend and that she and Defendant Doss began dating. The two had
been dating a couple of weeks when, on October 4, 2009, she learned Defendant Doss was
“talking with someone else.” She called Defendant Doss to talk about it, but Defendant Doss
told her he “couldn’t talk.” Ms. Hughes identified Defendant Doss’s cellular telephone
number as 977-5564. She said she and Defendant Doss called each other “throughout the
day,” but she could not recall the specific number of times.
Ms. Hughes testified that, at around midnight, Defendant Doss appeared at her house.
Ms. Hughes recalled that Defendant Doss entered her house, “gave [her] a hug, and he acted
different.” Ms. Hughes said she tried to talk with him about “the girl,” but Defendant Doss
“couldn’t really talk to [her].” She said that she would ask him a question, and he would not
-4-
respond. She said this seemed “unusual” to her. She asked Defendant Doss what was wrong
but, again, he did not respond. Ms. Hughes testified that Defendant Doss had spent the day
with “his friends,” but she did not know any of their names.
Ms. Hughes testified that, at some point, she and Defendant Doss went to sleep. Later
in the night, when Ms. Hughes rolled over, she noticed that Defendant Doss was not asleep
but “[j]ust laying [sic] there.” The next morning, before Defendant Doss left at 7:30 a.m.,
he told Ms. Hughes that he would not see her anymore and that he was sorry. Ms. Hughes
said she began crying and asked him why. He told her that “everything [wa]s going to be
okay” and apologized again. Ms. Hughes said that she assumed he said this because of “the
girl.” At a later point, Ms. Hughes learned that she was pregnant with Defendant Doss’s
child. She said she never told Defendant Doss about her pregnancy because she did not see
him again.
Courtney Hambric, a co-defendant in this case, testified that she was twenty-three
years old and from Greeneville, Tennessee. Ms. Hambric acknowledged that she was
currently incarcerated due to pending charges against her related to these crimes. Ms.
Hambric said that no threats or promises had been made to her regarding her testimony in this
case. Ms. Hambric stated that she hoped she might receive a lesser sentence than the State’s
original offer but that no one had promised her a lesser sentence.
Ms. Hambric testified that she and a friend were offered the opportunity to stay in
Nashville with “some people” they had met “on Vibe Line.” She said she stayed with these
people until “things went wrong” and then she rented a hotel room for a few weeks. She
agreed with the characterization that she was “staying” in Nashville but did not live in
Nashville. Ms. Hambric said that she had been in Nashville for about two weeks before the
October 4, 2009 incident occurred.
Ms. Hambric testified that, while in Nashville, she worked as an escort. She explained
that she placed an advertisement on “backpage” with “revealing” pictures of herself. She
said that clients would call her for an appointment, and she would arrange a time and date
to meet with the client. Ms. Hambric said that her advertisement indicated that she did “out-
calls,” meaning she went to the “client,” but that she would soon be “doing in-calls,” where
the “client” could “come to [her].” She said that her advertisement did not list what services
she provided and that she discussed her services once she met with the client. Ms. Hambric
recalled that the phone number listed in the advertisement was 423-956-9772.
Ms. Hambric testified that the victim called her between 5:30 p.m. and 6:30 p.m. and
inquired about her “rates.” Ms. Hambric told the victim that she charged $150 for thirty
minutes and $200 for an hour. She further informed the victim that she “wasn’t available at
-5-
the time,” which ended the conversation. Ms. Hambric explained that she was unavailable
because she did not have transportation to the victim’s location.
Ms. Hambric testified that, about an hour later, Christopher Doss, a co-defendant also
known as “Cup” or “Cut-Up,” called Ms. Hambric, and she asked him to give her a ride to
“get a room” in order to meet with the victim. Ms. Hambric said she had known Christopher
Doss for about a year and that he was “a friend of a friend.” Ms. Hambric said that
Christopher Doss understood the nature of Ms. Hambric’s work, but she denied that he had
any involvement or role in her work. She said that, at the time of these events, one of
Christopher Doss’s telephone numbers was 615-476-2410. Ms. Hambric could not recall on
which telephone he called her on that day. Ms. Hambric said that Christopher Doss agreed
to drive her to meet the victim, and she met Christopher Doss at a nearby Advanced Auto
Parts store.
Ms. Hambric testified that Christopher Doss arrived at the Advanced Auto Parts store
in a dark blue pick-up truck. Defendant Doss and Defendant Hathaway, whom she had never
met, were in the truck with Christopher Doss. She recalled that Defendant Doss drove, and
Christopher Doss sat in the front passenger seat while she and Defendant Hathaway sat in
the back. She said that, when she got into the truck, she asked Christopher Doss if he “had
any weed,” and he said “no.” She then asked if he had a cigar and when he again said that
he did not, she asked if they could stop at a store. Christopher Doss told her he would not
stop because he was “on a mission.” Ms. Hambric said that she understood this to mean that
Christopher Doss was going to rob the victim.
Ms. Hambric testified that she called the victim and told him that she would be able
to meet with him. When she got off the phone, the three men “started talking about how they
were going to rob [the victim].” She said that she determined the location to meet the victim.
She explained it was a “regular room” she used at the American Best Value Inn on Brick
Church Pike. Once they arrived at the American Best Value Inn, Ms. Hambric realized she
did not have her identification with her, so Defendant Doss offered to rent the room in his
name. Ms. Hambric provided Defendant Doss with money for the room. When Defendant
Doss returned from renting a room, he told her “we’re in room 118,” and then he parked the
car on “the side of the building” where room 118 was located.
Ms. Hambric testified that, after parking the car, they went into the room where
Defendant Doss “moved the chair,” and Defendant Hathaway removed the telephone cord
from the wall “to tie the victim up.” She said that both of the defendants looked different in
court than they did on the day of the shooting. She explained that Defendant Doss had no
facial hair and wore his hair in dreadlocks on the day of the shooting. She said that
Defendant Hathaway “wasn’t as big as he is now” and did not have “little plaits in his head.”
-6-
She said that, at the time of these events, she did not know their names, so when she later
spoke with police about these crimes she referred to Defendant Doss as the one with “dreads”
and Defendant Hathaway as the “one without.” In court she identified Defendant Doss as
the “man with the dreads” and Defendant Hathaway as the man with “no dreads.”
Ms. Hambric testified that the men began “role playing” how the robbery would take
place. It was at this time that Ms. Hambric saw Defendant Hathaway holding a pistol. She
said that Christopher Doss had retrieved the gun from underneath the passenger seat of the
car and carried it inside the motel room. While the men were “role playing,” Ms. Hambric
began video recording them with her cellular telephone. She said that Defendant Doss and
Defendant Hathaway had their faces hidden with their t-shirts while they were “role playing.”
Ms. Hambric testified that the victim called to tell her he was in the parking lot and
that she told him the room number. “Just a couple seconds” later the victim knocked on the
hotel door. Ms. Hambric explained that, at the time of the victim’s arrival, Christopher Doss
was in the truck, Defendant Doss was hidden in the bathroom of the motel room, and
Defendant Hathway was behind the door. She recalled that when the victim stepped inside
the room, Defendant Hathaway stepped out from behind the door pointing the gun at the
victim, and Ms. Hambric walked outside. Ms. Hambric described the victim as “really
skinny, about a couple inches taller than [her,] and he was dressed really nice and he had a
smile on his face.”
Ms. Hambric testified that, after exiting the motel room, she walked directly to the
truck. When she got inside the truck, Christopher Doss said, “what are you doing, you’re
messing everything up.” She asked him if he wanted her to go back inside the motel room,
and he indicated that he did. Ms. Hambric re-entered room 118 where she saw the victim
lying on the bed with his pants off, and Defendant Hathaway in the process of tying the
victim’s hands while Defendant Doss pointed the gun at the victim. Ms. Hambric said that
she sat down on the couch and again began video recording the events on her cellular
telephone. She said that both of the defendants had their t-shirts tied across the bottom
portion of their face. She recalled that Defendant Doss told the victim to give him “the right
pin number” for the ATM cards that Defendant Hathaway had taken from the victim.
Defendant Doss threatened that he would kill the victim if he did not provide the correct pin
number. The victim recited two different numbers for the cards that Defendant Hathaway
was holding.
Ms. Hambric testified that Defendant Doss told her to go to an ATM machine with
Defendant Hathaway and Christopher Doss. She stated that Defendant Hathaway took the
victim’s car keys, and they drove the victim’s car to a nearby Mapco gas station, while
Defendant Doss remained in the motel room with the victim. When they arrived at the gas
-7-
station, Defendant Hathaway handed Ms. Hambric the ATM cards and pin numbers and told
her to “go get money.” Ms. Hambric said she ignored the request until Christopher Doss told
her to “go get the money.” She said that she went inside the Mapco and withdrew $200. She
explained that she initially tried to withdraw $800 and when she was declined, she tried
incrementally lower amounts until she received $200. She then withdrew $400 from the
other ATM card. Ms. Hambric stated that she gave the money to Christopher Doss.
Ms. Hambric testified that, after leaving the Mapco gas station, Defendant Hathaway
drove to an Exxon where Ms. Hambric unsuccessfully attempted to withdraw more money
with both cards. On the drive to the Exxon, the two men instructed her “not to touch
anything” and to “use the sleeve of [her] jacket” so as to not leave behind a fingerprint. After
this second attempt to withdraw money at the Exxon gas station, Defendant Hathaway drove
back to the motel and parked the victim’s car on the back side of the motel. Ms. Hambric
said that she exited the victim’s vehicle and returned to the truck with Christopher Doss and
Defendant Hathaway. Christopher Doss sat in the driver’s seat while Ms. Hambric and
Defendant Hathaway sat in the back seat of the truck. Defendant Doss came out of the motel
room and got into the front passenger seat. As Christopher Doss began driving away from
the motel, Defendant Doss stated that he shot the victim three times because the victim
attempted to flee. Ms. Hambric recalled that, when Defendant Doss got into the car, she
smelled “a light scent of gun powder.” Defendant Doss then stated that he was “going to cut
his dreads.”
Ms. Hambric testified that Christopher Doss drove her back to where she was staying.
On the drive, she observed the victim’s wallet in the car. As they pulled up to the apartment
complex, she observed the men throw “some stuff” in the dumpster, but she was unsure of
what they threw out. She said that she observed Christopher Doss break up the victim’s
ATM cards and throw them out the window of the truck.
Ms. Hambric testified that, initially, she did not believe Defendant Doss killed the
victim. That night she watched the news and did not see a story about a homicide. She
called Christopher Doss and told him, “[his] friend don’t have to lie to kick it.” Several days
later she received a text from Christopher Doss instructing her to watch the news. When she
did so, she learned that the victim had been shot. She said that she did not contact police
because she had an outstanding warrant in Greeneville and did not want to be arrested. Ms.
Hambric said she then sent the videos she recorded in the motel room to her sister.
Ms. Hambric testified that on October 20, 2009, Detective Thompson and Detective
Haney came to the apartment where she was staying and “picked [her] up.” She said that
police learned her identity through Abby Arrington, a friend. She explained that she had told
Ms. Arrington about the events because the two told “each other everything” and because she
-8-
felt remorse about the incident. Ms. Hambric said that she told the detectives that she “met
up with Chris [Doss] and they wanted to rob somebody and all they wanted [her] to do was
open the door.” Ms. Hambric said she then lied to the police, stating that she had lost her
cellular telephone along with the video recordings on it. She agreed that she did not initially
tell the police about her work as an escort and her advertisement. She stated that she did
admit to ownership of the advertisement when confronted with it by police.
Ms. Hambric testified that Detective Thompson showed her photographic line-ups
from which she identified Defendant Doss, Christopher Doss, and Defendant Hathaway. Ms.
Hambric agreed that she assisted Detective Thompson in recording a telephone conversation
with Christopher Doss. During the telephone conversation, Christopher Doss told Ms.
Hambric “to stop telling people what had happened” and told her that “this is something that
[they] should take to the grave.”
Ms. Hambric testified that she did not see Defendant Hathaway after the shooting
until a recent court appointment on June 8, 2011. Ms. Hambric recalled that she was sitting
on a bench when Defendant Hathaway spoke to her. She did not recognize him, so he kept
walking. She later heard someone say his name and realized that he had been involved in the
shooting. She and Defendant Hathaway later ended up sharing an elevator in the courthouse,
where he asked her to lie about her identification of him and his involvement in the robbery
and shooting. Ms. Hambric described the remainder of their conversation as follows:
He asked me if I have anybody helping me out in here, if I have a way to talk
to my family, and I said, I’m not from here so I can’t just pick up the phone
and call home. And he said, well, I got people that you can [c]all. And I said,
I’m not calling anybody that you know.
Ms. Hambric said she interpreted these statements to be his attempt to coerce her into
recanting her identification of him. Ms. Hambric said that, during her conversation with
Defendant Hathaway, she agreed to lie to the police about her identification of him because
he “kept going on about it.” Ms. Hambric said that she notified her attorney about this
contact as soon as was possible after she left court that day.
On cross-examination, Ms. Hambric agreed that she had used marijuana on the day
of these events and ecstasy “a couple days before.” Ms. Hambric agreed that she had earlier
testified that she was not made any promises regarding her sentence in exchange for her
testimony. She further agreed that upon her arrest, in response to her question “what am I
looking at here?,” Detective Thompson discussed with her a possible range of sentence and
told her that, if she cooperated, she may be able to “wrap this up in a couple of years.”
-9-
Tekisha Hambric, Ms. Hambric’s sister, testified that she lived in Greeneville,
Tennessee. Tekisha Hambric stated that she knew Christopher Doss through an ex-boyfriend
and that she did not know Defendant Doss or Defendant Hathaway. Tekisha Hambric
confirmed that she received two video text messages from her sister in October 2009. She
said that, on the first of the two video text messages, she saw Christopher Doss “walk across
the screen.” She said the video appeared to be of a motel room, and the sound on the video
was not “good.” She also described video footage of a man wearing a black shirt tied around
his face, holding his arm up like he was holding a gun toward a “pale” man who was on a
bed. The man on the bed was “scooting” backward toward the headboard of the bed and
away from the man with the black shirt tied around his face. She recalled that the man on
the bed was wearing white underwear. Tekisha Hambric said that she did not recognize the
man with the black shirt tied around his face but said that the man was not Christopher Doss.
On cross-examination, Tekisha Hambric testified that Detective Thompson had
contacted her about the video text messages. She agreed that she told him that her phone had
been stolen. She explained that she set it down while in a “Pilot” and then forgot it. She
later called the cellular telephone and asked the person who answered her telephone to return
it to her. The person agreed to return Tekisha Hambric’s cellular telephone to her but never
did so.
Russell Thompson, a Metropolitan Nashville Police Department detective, testified
that he was the lead investigator assigned to work on the case involving the murder of the
victim. Detective Thompson recalled that, when he arrived at the America’s Best Value Inn,
police officers had already isolated the crime scene area. He spoke with the motel manager
and learned that “Harold Doss” had rented the room. Detective Thompson said that the
police then began to search for “Harold Doss.”
Detective Thompson testified that he looked at the registration card for the hotel room
and asked one of the police officers on the scene to “run” the driver’s license number listed
on the motel registration card. Police officers obtained the photograph associated with the
driver’s license number listed on the registration card, and the motel manager confirmed that
the photograph was of the man who had rented the room. Detective Thompson noted that,
in the driver’s license photograph, “Harold Doss” wore his hair in dreadlocks, although he
did not wear his hair in that manner at trial. Detective Thompson confirmed that the address
listed on the registration card was the same address associated with the driver’s license
number. Based upon all of this information, Defendant Doss became a suspect in the case.
Detective Thompson testified that, within two hours of his arrival on the crime scene,
he proceeded to the address listed on the motel registration form and associated with the
driver’s license for “Harold Doss.” Detective Thompson did not find Defendant Doss at his
-10-
home address at that time or on any of the following attempts he made to contact Defendant
Doss at his home address. He said that he also looked unsuccessfully for Defendant Doss
at his workplace. Although scheduled to work, Defendant Doss did not report to work the
week following the victim’s death. Detective Thompson said that he spoke with Defendant
Doss’s mother, girlfriend, father, and people with whom Defendant Doss worked, and none
of them knew of Defendant Doss’s whereabouts. Defendant Doss’s mother filed a missing
person report with the police department on October 9, 2009, due to his disappearance.
Detective Thompson testified that he arranged with Mr. Robinette to meet with some
of the victim’s colleagues. He asked Mr. Robinette to gather any of the victim’s personal
property, such as bank statements or credit cards, that could further the investigation.
Through this exchange, Detective Thompson learned that the victim’s laptop computer, a
phone, and the victim’s wallet were missing.
Detective Thompson testified that he attended the victim’s autopsy and collected a
projectile found in the victim’s clothing. Detective Thompson also collected the belt and
telephone cord that were found on the victim’s body.
Detective Thompson testified that he obtained the bank records associated with the
victim’s bank account. These records reflected information about the use of the victim’s
debit card associated with his account. On the document, Detective Thompson pointed out
the date a transaction “clears,” the transaction amount, a column that indicated whether the
withdrawal was authorized, the location of the withdrawal, and the account balance.
Detective Thompson identified on the bank document transactions for the day of the
victim’s death. At 6:55 p.m., the cardholder made a balance inquiry at an ATM located in
a Mapco gas station on Whites Creek Pike in Nashville, Tennessee. The cardholder
attempted to withdraw $800 at 6:56 p.m. but the withdrawal was “not authorized.” At 6:57
p.m., a withdrawal in the amount of $500 was requested and not authorized. Another attempt
was made at 6:58 p.m. to withdraw $300 and this withdrawal was not authorized. Finally,
at 6:59 p.m., the card bearer successfully withdrew $200 from the victim’s bank account.
Detective Thompson testified about the next set of transactions on the victim’s bank
account. The records showed that beginning at 7:04 p.m. on the same day, four more
unsuccessful attempts to withdraw money were made using the victim’s debit card. Three
of these attempts were for $600 and the fourth attempt to withdraw funds was for $200.
These four transactions were made at an ATM located in an Exxon gas station on Brick
Church Pike in Nashville, Tennessee. Based upon this information, Detective Thompson
obtained surveillance video from both of the gas stations.
-11-
The State first played the surveillance video footage from the Mapco gas station for
the jury while Detective Thompson provided orientation as to the layout of the store and the
angle from which the camera recorded. Detective Thompson said that the Mapco gas station
manager informed him that the video camera timestamp “could be a couple minutes off.”
Detective Thompson confirmed that the timestamp displayed in the corner of the screen
appeared to be “a couple minutes off,” but was within the range of time of the transaction
indicated on the bank records.
As the jury watched the Mapco surveillance video footage, Detective Thompson
identified Ms. Hambric, wearing a pink and black jacket, who entered the store and walked
to the ATM. He also identified Christopher Doss, wearing a white shirt, who selected a drink
from the cooler and then walked to the cash register to purchase the drink. He identified
Christopher Doss walking out of the store and Ms. Hambric exiting behind him. The
victim’s gold Nissan Maxima can be seen on the recording leaving the gas station parking
lot. Detective Thompson stated that he obtained still photographs from this recording that
he released to the news media in an effort to seek information identifying the male and
female on the surveillance video footage.
The State then played the surveillance video footage 2 from the Exxon gas station for
the jury. Detective Thompson stated that the Exxon station was located across the street from
the America’s Best Value Inn motel. He pointed out a gold Nissan Maxima that entered the
Exxon gas station parking lot. Detective Thompson noted that the individual seated in the
passenger seat of the vehicle was wearing a white shirt. Ms. Hambric, wearing the pink and
black jacket, exited the back passenger’s side door of the car. Inside the gas station, Ms.
Hambric stood at the ATM. Meanwhile Christopher Doss, wearing the white shirt, got out
of the vehicle, walked to a trash can, and then walked around the back of the vehicle before
getting back inside the Nissan Maxima. The jury then viewed Ms. Hambric getting back
inside the car and the car exiting the parking lot. Detective Thompson noted that the driver
of the vehicle did not exit the vehicle at either gas station.
Detective Thompson testified that, at the time he first viewed these surveillance video
recordings, he did not know the identity of the individual at the ATM machines. At some
point, another detective received a phone call identifying the female at the ATM machines
as Courtney Hambric. Detective Thompson obtained a photograph of Ms. Hambric from the
Greene County Sheriff’s Department and the BackPage.com website to compare with the
surveillance video and determined that the person in the surveillance video was Courtney
2
The surveillance footage from the Exxon gas station was damaged and thus unviewable. Because
this footage is not contested by either party, we recount only Detective Thompson’s testimony about the
video surveillance footage.
-12-
Hambric.
Detective Thompson testified that he went to an address associated with Ms. Hambric
and found her there. He asked her if she would be willing to speak with him at the precinct.
She agreed but asked if she could first “get dressed.” She went to another room of the
apartment and when she returned she was wearing the same pink and black jacket as
Detective Thompson had seen on the surveillance video footage. Detective Thompson
identified the coat in court and agreed that he had collected the coat as evidence.
Detective Thompson testified that as he walked out to the car with Ms. Hambric, she
spontaneously stated, “I didn’t know they were going to shoot him and that man didn’t
deserve to die.” Once inside the police car Ms. Hambric continued to talk. Detective
Thompson said that he did not ask any questions at the time, preferring to wait until they had
reached the precinct. Detective Haney, who sat in the back seat of the unmarked police car,
turned on a voice recorder and taped Ms. Hambric’s statements.
Detective Thompson testified that once back at the precinct, he recorded his interview
with Ms. Hambric, whom he described as “generally cooperative.” Detective Thompson said
that Ms. Hambric told him that Christopher Doss had “picked her up” in a blue truck and that
two men were with him that she did not know. She said that Defendant Doss rented a motel
room and hid in the bathroom while Defendant Hathaway hid behind the door. Both men
wore shirts covering their faces. She said that she opened the motel room door, that the
victim walked into the room, and that she walked out. Ms. Hambric told Detective
Thompson that Christopher Doss was outside in the blue truck and told her to go back into
the room. When she did, she saw the victim tied up on the bed. She said that she and
Defendant Hathaway left the room while Defendant Doss remained in the motel room with
the victim. She told the detective that she, Christopher Doss, and Defendant Hathaway drove
to a Mapco gas station in the victim’s car where she used the ATM, and then they went to
an Exxon gas station to use another ATM before returning to the hotel room. She said that
Defendant Doss ran out of the room and that they drove away in the truck. The men dropped
her off at her apartment where they threw “something” away in the dumpster. Detective
Thompson said that Ms. Hambric’s statements to him at the precinct were consistent with her
trial testimony, including Defendant Doss’s admission about shooting the victim once
Defendant Doss was in the truck.
Detective Thompson testified that Ms. Hambric referred to Defendant Doss as the
“man with dreads” and Defendant Hathaway as “the man without dreads.” Detective
Thompson confirmed that Ms. Hambric identified Defendant Doss in a photographic line-up
even though the picture depicted Defendant Doss without dreadlocks. Ms. Hambric relayed
-13-
all of this information to Detective Thompson before she saw the surveillance video footage.
Detective Thompson testified that, during the interview, Ms. Hambric agreed to be
part of a controlled phone call during which she would speak with Christopher Doss about
the shooting. During the call, Ms. Hambric referenced the photographs police released to the
media of Christopher Doss at the Mapco. Christopher Doss responded with a text message
instructing Ms. Hambric to send him “what [she had].”
Detective Thompson testified that, at the end of the interview, he arrested Ms.
Hambric for her involvement in the shooting. During the course of his investigation, he
spoke with Ms. Hambric’s sister, Tekisha Hambric. Tekisha Hambric began telling the
detective about the two video text messages her sister, Ms. Hambric, had sent her. She
described what she saw on the recordings. Detective Thompson said that he was able to tape
a portion of this phone conversation with Tekisha Hambric. After learning about the video
recordings, Detective Thompson once again spoke with Ms. Hambric, who admitted video
recording the events in the motel room and sending the recordings to Tekisha Hambric.
Detective Thompson was unable to recover the video recordings, but he testified that Tekisha
Hambric’s account of what she saw on the video recordings was consistent with Ms.
Hambric’s statement about what she recorded.
Detective Thompson testified that Ms. Hambric told him that the first video was of
the four defendants in the hotel room “hanging out.” She said that Christopher Doss’s face
can be seen on the recording, as well as Defendant Doss moving a chair in the room. Ms.
Hambric told the detective that the second video recording contained footage of the victim
tied up on the bed and the two individuals with shirts tied around their head to cover their
faces.
Detective Thompson testified that he was unable to locate Defendant Doss until
February 2010. He explained that he entered Defendant Doss’s information in to NCIC, a
national police database that alerts law enforcement anywhere in the country that a specific
agency is looking for a given individual. In February 2010, Detective Thompson was
notified that Defendant Doss was in custody at the Tarrant County Sheriff’s Department in
Fort Worth, Texas. On March 18, 2010, Detective Thompson traveled to Fort Worth, Texas,
and returned with Defendant Doss.
Detective Thompson said that he did not learn the identity of the fourth suspect until
September 10, 2010, when he received information indicating that Defendant Hathaway was
the fourth suspect in this case. Detective Thompson said that he created a photographic line-
up that included a picture of Defendant Hathaway and showed it to Ms. Hambric. Ms.
Hambric identified the photograph of Defendant Hathaway as the fourth suspect. Detective
-14-
Thompson explained that, during the investigation, he had unsuccessfully shown Ms.
Hambric photographic line-ups developed from information the police had received about
other possible suspects. When Detective Thompson showed Ms. Hambric the photographic
line-up containing Defendant Hathaway she “looked at all six pictures and immediately went
to [Defendant Hathaway’s] picture.” Detective Thompson said that Defendant Hathaway
came to the police precinct on September 27, 2010, for an interview.
Our review of the recorded interview shows Defendant Hathaway and two detectives
in an interview room. Detective Thompson told Defendant Hathaway that he was not under
arrest but advised him of the Miranda rights. Defendant Hathaway signed a waiver
acknowledging his understanding of his rights. Defendant Hathaway denied knowing
Defendant Doss. He stated that he played Little League with Christopher Doss as a child and
that he had not seen Christopher Doss “in years.” He also denied knowing Ms. Hambric.
He told the detectives that he did not have a cellular telephone in October 2009. He denied
ever being at the America’s Best Value Inn on Brick Church Pike.
In the recorded interview, Detective Thompson told Defendant Hathaway that a man
was murdered in one of the rooms at the America’s Best Value Inn and that Defendant Doss,
Christopher Doss, and Courtney Hambric were all charged with first degree murder for the
victim’s death. Detective Thompson explained that police knew there was a fourth suspect
and that Defendant Hathaway’s name had recently come up as the potential fourth suspect.
Defendant Hathaway denied any involvement and denied any association with the three
charged suspects. Detective Thompson reviewed with Defendant Hathaway the police theory
of the case based on the evidence recovered during the investigation. Defendant Hathaway
again denied any involvement, claiming he was with his wife who was admitted to the
hospital for leg injuries. Defendant Hathaway agreed to provide police with a DNA sample
but later withdrew his permission. He maintained that he did not know any of the suspects
in the case and that he had no involvement in these crimes.
Detective Thompson testified that he submitted Defendant Hathaway’s fingerprints
for comparison. Defendant Hathaway’s fingerprint matched a print obtained from the
interior door of room 118 at America’s Best Value Inn. Detective Thompson said that, at
some point, he obtained a DNA sample from Defendant Hathaway and submitted it to the
Tennessee Bureau of Investigation (“TBI”) for analysis.
Detective Thompson testified that he obtained the telephone records for the victim’s
cellular telephone and Christopher Doss’s cellular telephone. Detective Thompson identified
the telephone records and pointed out where the telephone records reflected telephone calls
placed between the victim’s cellular telephone and Ms. Hambric’s cellular telephone on
October 4, 2009, between 4:16 p.m. and 6:18 p.m. Detective Thompson then discussed
-15-
Christopher Doss’s telephone records, noting a call that Christopher Doss placed on October
3, 2009, at 10:28 p.m. to the telephone number Defendant Hathaway provided to police as
his cellular telephone number during the police interview. On October 4, 2009, the records
show that Christopher Doss placed multiple telephone calls to Ms. Hambric beginning at
6:27 p.m. At 6:46 p.m., Defendant Doss called Christopher Doss’s cellular telephone.
Beginning at 6:58 p.m. until 7:13 p.m., multiple telephone calls are placed from Christopher
Doss’s telephone to Defendant Doss’s cellular phone. Detective Thompson explained the
significance of these times were that the times were within the time frame of ATM
withdrawals using the victim’s debit cards.
On cross-examination, Detective Thompson testified that Ms. Hambric would not
confirm the identity of Christopher Doss on the gas station surveillance footage. He agreed
that she also refused to sign the photographic line-up containing a photograph of Christopher
Doss. He explained that she immediately identified Christopher Doss upon seeing his
photograph but that she then refused to sign the identification, only writing in the date.
Detective Thompson agreed that Ms. Hambric signed the document on which she identified
Defendant Doss. Detective Thompson confirmed that, based on the physical evidence
documentation form, twenty-nine different items in the motel room were “swabbed” and
submitted for further analysis. Detective Thompson agreed that none of the latent prints were
a match to Defendant Doss.
Detective Thompson confirmed that the bank records indicated only one successful
withdrawal at the Mapco gas station in the amount of $200. Detective Thompson stated that
he thought the victim had multiple cards but was unaware of any other accounts.
On redirect examination, Detective Thompson testified that the only “definitive
person” who could have confirmed there was only one bank account involved in these crimes
was the victim. Detective Thompson explained that the victim’s family resided outside the
United States.
Michael Stewart, a custodian of records for Cricket Communications, testified that his
job required him to maintain call detail records and documents for the company. Mr. Stewart
explained that call detail records typically show the telephone number that placed the call,
the number that received the call, the date and time of day of the call, and the cell phone
tower that routed the call. Mr. Stewart said that this call detail information was stored in a
database for six months after the occurrence.
Mr. Stewart testified about cell tower information in relation to the location of the
cellular phone in use. He read the following Cricket company statement about cell towers:
-16-
[T]he maximum design of our towers is typically twelve miles in rural areas
with bad terrain. In areas that are urban, densely populated and dense with
building and other structures, et cetera, . . . this design range is typically
significantly reduced, in many cases it could be less than a mile. The only
purpose of the towers is to be part of a network that provides good wireless to
our customers. The actual range rather than the design range can vary from
moment to moment because of the call volume, weather, obstructions, foliage,
et cetera.
Mr. Stewart stated that cell tower information did not provide the exact location of the
cellular telephone in use but rather provided a general area of use. Further, the tower used
to route a call was not always the closest cell tower to the user but was the tower with the
strongest signal.
Michael Frizzell, a TBI special agent in the technical services unit, testified that his
duties with the TBI included helping investigators obtain and analyze telecommunication
records. Agent Frizzell stated that he had attended conferences that addressed call detail
record analysis and that he had also received specific forensic training for “the forensic
examination of the actual cell phone.”
Agent Frizzell testified that he helped prepare the visual presentation in this case as
a testimonial aid for a particular cricket phone number. He explained that he obtained “an
official map” of the Davidson County area that included cell tower locations from Metro
Mapping and Planning. The map also included information he had provided from the call
detail records and the locations of the Mapco gas station, Exxon gas station, and America’s
Best Value Inn at issue in this case.
Agent Frizzell testified that cell towers cover a certain range but that range can be
reduced by weather, foliage, or buildings. Agent Frizzell noted that Cricket provided a ten
to twelve mile range for cell towers in a rural area. He stated that Nashville would be
considered a more densely populated urban area, which would result in a shorter range for
cell towers. Agent Frizzell stated that, in his experience, records showing the use of different
towers to transmit calls over a shorter span of time indicated movement of the user because
the tower with the strongest signal is going to route a call. Agent Frizzell said that cell phone
detail records provide general geographical location and not specific location of the cellular
telephone user.
The State re-called Detective Thompson. Detective Thompson confirmed that he
obtained a subpoena for Defendant Doss’s cellular telephone records. He stated that the
cellular telephone number 977-5564 was registered under the subscriber name Tameka
-17-
Dixon, Defendant Doss’s sister. The subscriber address for the account was the same address
provided on Defendant Doss’s driver’s license.
Detective Thompson testified that the phone records indicated that Defendant Doss
called Christopher Doss’s cellular telephone on October 4, 2009, at 6:46 p.m., 6:58 p.m., and
7:06 p.m. Detective Thompson noted that it was during this time period that the victim’s
bank account was either accessed or there was an attempt to access the account at the Mapco
gas station and at the Exxon gas station. Referencing the map created by Metro Mapping and
Planning, Detective Thompson traced the cell tower usage on October 4, 2009. At 4:41 p.m.,
the phone associated with Defendant Doss accessed calls through a tower located near where
Defendant Doss’s father and uncle lived. At 5:08 p.m., the cellular telephone associated with
Defendant Doss used a cell tower located more closely to the Advance Auto Parts store
where Ms. Hambric was picked up. For the next hour and forty-five minutes, the cellular
telephone accessed calls through a tower located approximately .57 miles from the America’s
Best Value Inn. From 7:37 p.m. to 7:53 p.m., the cell tower accessed was located near where
Ms. Hambric was staying. At 9:05 p.m. the tower located near where Defendant Doss’s
father lived was again used for routing calls. From 9:45 p.m. on October 4, 2009, until 12:48
a.m. on October 5, 2009, the cell tower accessed was located approximately a half a mile
from Laquisha Hughes’s residence. Detective Thompson said that from around midnight
until approximately 10:30 a.m. on October 5, 2009, there were no calls between Defendant
Doss and Ms. Hughes.
Detective Thompson testified that the locations of the cell towers used to route calls
were consistent with Ms. Hambric’s version of the events and Ms. Hughes’s statements that
Defendant Doss spent the night at her home. Detective Thompson noted that a call between
Christopher Doss and Defendant Doss occurred at 6:59 p.m., when, according to bank
records, the victim’s debit card was first used at Mapco and then again at 7:04 p.m., when
the victim’s debit card was used at the Exxon.
Don Carman, a retired TBI forensic division special agent, testified as an expert
witness in the field of ballistics. Mr. Carmen stated that he had evaluated the four shell
casings that police had submitted to him in this case. Mr. Carmen stated that “all of these are
the same manufacturer, they’re nine millimeter cartridge cases, all been fired, Winchester
manufacture.” Based upon his evaluation of the shell casings, Mr. Carmen determined that
all four shell casings were fired from the same weapon. A projectile found in the motel room
was also submitted for evaluation. Mr. Carmen stated that the projectile was consistent with
a projectile that would have been fired through a nine millimeter weapon.
Linda Wilson, a Metropolitan Nashville police department identification analyst,
testified as an expert in the field of latent print identification. Officer Wilson stated that part
-18-
of her duties with the police department include comparing latent prints to determine the
source of the print. Officer Wilson explained that all latent prints submitted can not be used
for comparison. She stated that there must be ridge detail in order for her to examine and
compare the latent print. If a latent print is smeared, disturbing the ridge detail, she would
be unable to examine the print and the latent print would be identified as “no value.”
Officer Wilson testified that she received a set of latent prints taken from the victim’s
car. All of the latent prints taken from the victim’s car were deemed “no value.” Officer
Wilson said that she also received a set of latent prints taken from the motel room. A latent
print recovered from the interior of the door to room 118 was identified as Defendant
Hathaway’s fingerprint. Office Wilson stated that she also found latent prints that matched
Courtney Hambric’s fingerprint.
Dr. Laura Boos, a TBI special agent in the serology DNA unit, testified as an expert
in the field of serology and DNA comparison. Dr. Boos stated that her analysis showed that
Defendant Doss could not be excluded as a contributor of the genetic material found on the
belt ligature wrapped around the victim’s hands. Further, Defendant Doss could not be
excluded as a contributor of the genetic material found on the telephone cord. Her analysis
revealed that Defendant Hathaway’s DNA profile matched the genetic material found in the
latex glove tip that was lying on the bed in the hotel room. A second contributor was also
found in the genetic material from the glove tip. The victim and Ms. Hambric were excluded
as contributors of the genetic material; however, Defendant Doss could not be excluded as
the contributor.
Dr. Thomas Deering, a Davidson County senior associate medical examiner, testified
as an expert witness in the field of forensic pathology. Dr. Deering stated that he performed
the autopsy of the victim on October 4, 2009. Dr. Deering said that he found two gunshot
wound paths on the victim. The victim had an entrance wound right at his left collar bone
and the exit wound was on the back side of his neck. Dr. Deering said that the bullet injured
the edge of the victim’s trachea, the right side of the thyroid gland, and lacerated a portion
of the internal carotid artery before exiting through the victim’s neck. Dr. Deering noticed
a pattern of stipple marks on the left side of the victim’s neck. Based upon his observation
of the entrance wound and surrounding area, Dr. Deering stated that he believed the gun was
placed against the victim’s skin when it was fired. Due to the bleeding attendant to injury
of the carotid artery, Dr. Deering stated that this wound “ha[d] certainly a potential to be a
lethal wound.”
Dr. Deering testified about the other gunshot wound path. He stated that the projectile
traveled through both of the victim’s arms and his chest. The projectile entered the victim’s
left arm, traveled through the arm, and then entered the left side of the victim’s chest. The
-19-
bullet traveled between two of the victim’s ribs and perforated the right atrium of the
victim’s heart. It then struck the right lung before exiting the right chest cavity through
intercostal spaces 6 and 7. The projectile proceeded through the victim’s right arm and
stayed inside the victim’s clothing where Dr. Deering recovered the bullet. Dr. Deering
stated this gunshot wound was fatal. Dr. Deering estimated that the victim would have
maintained consciousness for approximately five to eight seconds and died within a “number
of minutes.” Dr. Deering testified that the cause of the victim’s death was multiple gunshot
wounds and the manner of death was homicide.
Patricia A. Hathaway, Defendant Hathaway’s mother, testified on Defendant
Hathaway’s behalf. Ms. Hathaway testified that her brother’s funeral was on October 3,
2009, and Defendant Hathaway attended the funeral. She identified her brother’s obituary,
which listed his funeral date as October 3, 2009. At this time, Defendant Hathaway lived
with his mother in Hendersonville. Ms. Hathaway said that she could not say exactly where
Defendant Hathaway was at a specific time on those days but that he was “in and out of the
home” on October 3, 2009, and the following day, October 4, 2009. Mrs. Hathaway said that
Defendant Hathaway’s weight at trial was consistent with his weight in October 2009.
On cross-examination, Ms. Hathaway agreed that she never told the police that, due
to her brother’s funeral, Defendant Hathaway was with her on October 3 and 4. She stated
that, instead, she told this to the attorney who was representing Defendant Hathaway at the
time.
Based on this evidence, the jury convicted Defendant Doss of first degree felony
murder, second degree murder, especially aggravated robbery, and especially aggravated
kidnapping. The jury convicted Defendant Hathaway of first degree felony murder,
especially aggravated robbery, and especially aggravated kidnapping. The trial court merged
Defendant Doss’s first degree felony murder conviction with the second degree murder
conviction. The trial court sentenced Defendant Doss to serve life in prison for the murder
conviction, thirty years for the especially aggravated robbery conviction, and thirty years for
the especially aggravated kidnapping conviction. The convictions for especially aggravated
robbery and especially aggravated kidnapping were to run concurrently with one another but
consecutively to the murder conviction, for an effective sentence of life plus thirty years in
the Tennessee Department of Correction. The trial court sentenced Defendant Hathaway to
serve concurrent sentences of life in prison for the first degree felony murder conviction,
thirty years for the especially aggravated robbery conviction, and thirty years for the
especially aggravated kidnapping conviction, for an effective sentence of life in the
Tennessee Department of Correction. It is from these judgments that the defendants appeal.
II. Analysis
-20-
On appeal, Defendant Doss asserts that: (1) the trial court erred when it denied his
motion to sever; (2) the evidence is insufficient to support his convictions; (3) the trial court
erred when it admitted hearsay evidence; (4) the trial court erred when it permitted the State
to amend the indictment during the trial; (5) his dual convictions for especially aggravated
kidnapping and especially aggravated robbery violate his right to due process; and (6) the
trial court improperly imposed consecutive sentences. Defendant Hathaway asserts that: (1)
there is insufficient evidence to support his convictions; (2) the trial court improperly allowed
the State to present “unreliable evidence” of cell phone tower technology through a
Tennessee Bureau of Investigation agent; (3) the trial court erred when it permitted the State
to amend the indictment during the trial; (4) there was juror misconduct; and (5) the trial
court applied the incorrect law governing circumstantial evidence. We address each
appellant’s issues in turn.
A. Defendant Doss
1. Severance
Defendant Doss asserts that the trial court erred when it denied his request for
severance of the defendants. He claims that the admission of Defendant Hathaway’s
recorded interview unfairly prejudiced him. Defendant Doss does not object to the
statements made by Defendant Hathaway in the recording, but to the statements made by
Detective Thompson in explaining his theory of the case. The State responds that the trial
court acted within its discretion when it denied Defendant Doss’s motion to sever the
defendants. We agree with the State.
The Tennessee Rules of Criminal Procedure address the severance of defendants in
Rules 8, 13, and 14. Rule 8( c) provides that an indictment, presentment, or information may
charge two or more defendants:
(1) if each of the defendants is charged with accountability for each offense
included:
(2) if each of the defendants is charged with conspiracy, and some of the
defendants are also charged with one or more offenses alleged to be in
furtherance of the conspiracy; or
(3) even if conspiracy is not charged and all of the defendants are not charged
in each count, if the several offenses charged:
(A) were part of a common scheme or plan; or
-21-
(B) were so closely connected in time, place, and occasion that it would
be difficult to separate proof of one charge from proof of the others.
When two defendants are joined for trial, as is the case here, a defendant may move for a
severance “because an out-of-court statement of a codefendant makes reference to the
defendant but is not admissible against the defendant . . . .” Tenn. R. Crim. P. 14(c)(1). If
the trial court determines that the State intends to offer the statement at trial, the trial court
shall require the State to elect:
(A) a joint trial at which the statement is not admitted in evidence or at which,
if admitted, the statement would not constitute error;
(B) a joint trial at which the statement is admitted in evidence only after all
references to the moving defendant have been deleted and if the redacted
confession will not prejudice the moving defendant; or
(C) severance of the moving defendant.
Tenn. R. Crim. P. 14(c)(1)(A)-(C)). The decision to grant or deny severance rests within the
sound discretion of the trial court. State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App.
2000) (citing State v. Coleman, 619 S.W.2d 112 (Tenn. 1981)). “The test is whether or not
the defendant was clearly prejudiced in his defense by being jointly tried with his
co-defendant.” Id. (citing State v. Wiseman, 643 S.W.2d 354 (Tenn. Crim. App. 1982)).
This Court cannot interfere with the exercise of discretion afforded to the trial court absent
a showing of clear abuse. Id. (citing Coleman, 619 S.W.2d at 116).
Prior to the swearing in of the jury, Defendant Doss argued that the trial court should
not allow Detective Thompson’s recorded interview with Defendant Hathaway to be
introduced at trial because Detective Thompson’s questions were based upon knowledge he
had gained from his interviews with Ms. Hambric. He further argued that the admission of
the recording was the State’s attempt to improperly bolster Ms. Hambric’s testimony. After
reviewing the transcript of the interview, the trial court ordered that Detective Thompson’s
statement, “I believe personally that [Defendant Doss] is the shooter” be redacted. The trial
court noted that all other statements were posed in the form of a hypothetical, “If it’s Harold
Doss that did it,” rather than a statement that Defendant Doss was the shooter. The trial court
stated that it would instruct the jury that statements made by a police officer during an
interview are not evidence and that the statements are only to be considered for the
interviewee’s response. The trial court further noted that, in the interview, Defendant
Hathaway did not agree with any statements during the interview and maintained full denial
-22-
of any acquaintance with the co-defendants or knowledge of the events.
During the trial before the recording was played, the trial court gave the following
instruction to the jury:
[T]he State has prepared to introduce into evidence the interview of Johnathan
Lamar Hathaway conducted by Detectives Russell Thompson and David
Cotsman, I hereby instruct you that this evidence may be considered by you
only as it relates to the guilt or innocence of Mr. Hathaway. It cannot be
considered by you for any reason regarding Mr. Harold Doss, Jr. Furthermore,
you are instructed that the statements, remarks and questions of the detectives
contained in the interview are not evidence against Mr. Hathaway and cannot
be considered by you as such unless Mr. Hathaway agreed with the statement,
remark or question, otherwise the inclusion of the detective’s theories of or
comments about the case is simply to place in context the responses to Mr.
Hathaway.
On appeal, Defendant Doss challenges “the statements of the Detective setting forth
his theory of the case, delivered with the imprimatur of law enforcement, which were derived
from the testimonial hearsay statements of severed, non-testifying codefendant Christopher
Doss.”
The Defendant has not shown that the trial court abused its discretion when it denied
his motion to sever. The specific statements challenged by Defendant Doss are as follows:
“ . . . I’ve been investigating this case almost a year.”
“Here’s the story I got.”
“You [Hathaway] and Harold [Doss] and Chris [Doss] picked up Courtney
[Hambric]. Courtney sets up a date with a Japanese man from Kentucky, at the
hotel room. You get to the hotel room, set up a plan. Chris stays outside, you
and Harold and Courtney go in the room. When the man shows up, Courtney
opens the door for him, lets him in, you and Harold tie him up on the bed. The
three of you, you and Courtney and Chris leave in his car. Go to two different
markets, withdraw money from the ATM machine. You stay in the car. You
then return [,] Harold comes running out and said he had to shoot the man and
he’s dead in the hotel room. And you all leave in Harold’s truck. You then get
dropped off over at the apartments on White’s Creek Pike. You and Harold
and then that’s kinda the end of your involvement that night.”
-23-
“[A]nd the evidence has been building for a year. And the, myself, the district
attorney’s office, we’ve talked about it.”
“Chris [Doss] has been in jail for six months or longer on this.”
“When you can tell us up front that, ‘I was just there. I didn’t have nothing to
do with it. Harold did the shooting.’”
A motion to sever pursuant to Tennessee Rule of Criminal Procedure 14(b)(1)
addresses statements of one co-defendant about another co-defendant in a joint trial.
Defendant Doss does not challenge Defendant Hathaway’s statements, but instead he
challenges Detective Thompson’s statements made during Detective Thompson’s interview
of Defendant Hathaway. In our view, Detective Thompson’s statements to Defendant
Hathaway during Detective Thompson’s interview of Defendant Hathaway were not offered
into evidence to prove the “truth of the matter asserted,” therefore, the statements are not
hearsay. See Tenn. R. Evid. 801(c). Detective Thompson’s statements gave context to the
questions that he asked Defendant Hathaway during his interview. The interview was
properly admitted into evidence, and the trial court properly instructed the jury concerning
their consideration of this evidence.
Accordingly, the trial court did not abuse its discretion when it denied Defendant
Doss’s motion to sever based upon the State’s offer of a recorded interview between
Defendant Hathaway and Detective Thompson. Defendant Doss is not entitled to relief as to
this issue.
2. Sufficiency of the Evidence
Defendant Doss asserts that the evidence against him was insufficient because the State
failed to provide evidence to corroborate Ms. Hambric’s accomplice testimony. The State
responds that sufficient corroborating evidence was presented at trial for a jury to find that
Defendant Doss committed these offenses. We agree with the State.
It is well-settled law in Tennessee that a criminal defendant cannot be convicted solely
on the uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994), superseded by statute on other grounds as stated in State v. Odom, 137 S.W.3d
572, 580-81 (Tenn. 2004). The determination as to whether a witness is an accomplice or not
may be a matter of law for the trial court’s determination or it may be a question of fact for
the jury’s determination. State v. Perkinson, 867 S.W.2d 1, 7 (Tenn. Crim. App. 1992).
When the facts are clear and undisputed concerning a witness’ participation in the crime,
whether he is an accomplice is a question of law for the court to decide. When the facts are
-24-
in dispute or susceptible to different inferences, it becomes a question of fact for the jury.
Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975).
“An accomplice is one who knowingly, voluntarily, and with common intent unites
with the principal offender in the commission of a crime.” State v. Allen, 976 S.W.2d 661,
666 (Tenn. Crim. App. 1997). To satisfy the definition of an accomplice, it is not enough that
the witness merely possess guilty knowledge, is morally delinquent, or even participated in
a distinct but related offense. See State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App.
1990). The general test in determining whether a witness is an accomplice is whether the
alleged accomplice could be indicted for the same offense. Allen, 976 S.W.2d at 666.
The law in Tennessee regarding the corroboration required for accomplice testimony
has been described as follows:
The rule simply stated, is that there must be some fact testified to, entirely
independent of the accomplice’s testimony, which, taken by itself, leads to the
inference, not only that a crime has been committed, but also that the
defendant is implicated in it; and this independent corroborative testimony
must also include some fact establishing the defendant’s identity. This
corroborative evidence may be direct or entirely circumstantial, and it need not
be adequate, in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary that
the corroboration extend to every part of the accomplice’s evidence.
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (quoting State v. Bigbee, 885 S.W.2d 797,
803 (Tenn. 1994) (citations omitted)). Ultimately, it is a question for the jury to determine
whether an accomplice’s testimony has been sufficiently corroborated. Pennington v. State,
478 S.W.2d 892 (Tenn. Crim. App. 1971).
Defendant Doss was convicted of first degree felony murder, second degree murder,
especially aggravated robbery, and especially aggravated kidnapping. The evidence presented
in the light most favorable to the State showed that Defendant Doss, Defendant Hathaway,
Christopher Doss, and Ms. Hambric drove to the America’s Best Value Inn on Brick Church
Pike. Ms. Hambric had arranged to meet the victim at this location under other pretenses.
Defendant Doss rented a motel room, and Ms. Hambric conveyed the room number to the
victim. Defendant Doss hid in the bathroom of the motel room while Ms. Hambric opened
the door to the victim. Defendant Doss held the victim at gunpoint while Defendant
Hathaway, Christopher Doss, and Ms. Hambric drove in the victim’s car to nearby gas stations
to access money from ATMs using the victim’s debit cards. Upon their return to the motel,
-25-
Defendant Doss ran out of the motel room, got into the truck, and stated that he had killed the
victim. Defendant Doss then left the state and fled to Texas where he was later apprehended.
Defendant Doss contends that the State relied “almost exclusively” on Ms. Hambric’s
testimony to convict him of these offenses. Ms. Hambric testified that she worked as an
escort and arranged to meet the victim at the America’s Best Value Inn on Brick Church Pike.
She stated that Christopher Doss agreed to meet her at the Advanced Auto Parts store and
drive her to meet the victim. When Ms. Hambric met Christopher Doss at the Advanced Auto
Parts store, Defendant Doss, and Defendant Hathaway were with him. Ms. Hambric
described Defendant Doss to police as the “man with dreadlocks.” On the drive to the motel,
the three men began discussing a plan to rob the victim. Ms. Hambric stated that, because she
forgot her identification, Defendant Doss rented the motel room in his name using his
identification. Once inside room 118, Defendant Doss and Defendant Hathaway “role-
played” the robbery. When the victim arrived at the hotel, he called Ms. Hambric who gave
him the room number. Ms. Hambric recorded portions of these events on her cellular
telephone, and she sent the recordings to her sister. She said the video showed Defendant
Doss with a t-shirt tied around his face role playing the robbery plan. Ms. Hambric said
Defendant Doss hid in the bathroom while Ms. Hambric opened the door for the victim. Ms.
Hambric testified that Defendant Doss held the gun on the victim while Defendant Hathaway
took the victim’s debit cards. She said Defendant Doss stayed with the victim while the others
went to use the victim’s debit cards at nearby gas stations. When they returned from
withdrawing money from the victim’s account, Defendant Doss came out to the truck and
announced that he had killed the victim.
Ms. Hambric’s testimony is corroborated by the motel registration card listing Harold
Doss as the person renting room 118. The registration card contained Defendant Doss’s
signature, his home address, and his driver’s license number. Defendant Doss’s driver’s
license photograph portrays him with his hair in dreadlocks. The owner of the motel, Ms.
Vanmali, testified that she rented room 118 to Defendant Doss on October 4, 2009. Cellular
telephone records for Defendant Doss’s cellular telephone indicated the presence of his
cellular telephone in the area of these crimes at the time of the crimes. Ms. Hambric’s sister
testified that her sister sent her a video of the events that had occurred that evening. She said
that it depicted two men with t-shirts tied around their faces. Defendant Doss’s demeanor on
the night of the shooting and his statements to Ms. Hughes the morning after, when he stated
he would not see her again, corroborate the other evidence indicating his involvement in these
crimes. DNA testing showed that Defendant Doss could not be excluded as a contributor of
the genetic material found on the telephone cord. The DNA profile on a tip of a latex glove
matched Defendant Hathaway and there was also genetic material from a second contributor.
The victim and Ms. Hambric were excluded as contributors of the genetic material; however,
Defendant Doss could not be excluded as the contributor. Finally, evidence was presented
-26-
that Defendant Doss fled to Texas following these crimes. We conclude that all this evidence
“fairly and legitimately tends to connect” Defendant Doss with the crimes against the victim.
Bigbee, 885 S.W.2d at 803.
Accordingly, we conclude that there was sufficient evidence upon which a jury could
find beyond a reasonable doubt that Defendant Doss, during the commission of a robbery,
shot and killed the victim. Defendant Doss is not entitled to relief as to this issue.
3. Hearsay
Defendant Doss challenges the trial court’s admission of the photographic line-up from
which Ms. Hambric identified him. Defendant Doss asserts that Detective Thompson’s
notation on the photographic identification form that Ms. Hambric identified Defendant Doss
as the shooter is improper hearsay. The State responds that the statement at issue is an
extrajudicial identification of a defendant and, therefore, an exception to the rule against
hearsay. We agree with the State.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c)). In general, hearsay statements are inadmissible. Tenn. R. Evid. 802
(“Hearsay is not admissible except as provided by these rules or otherwise by law.”). Certain
exceptions, however, exist, including one relevant to the issue raised in this case. See Tenn.
R. Evid. 803(1.1).
Detective Thompson showed Ms. Hambric a photographic line-up that included a
photograph of Defendant Doss. Ms. Hambric circled the photograph of Defendant Doss, and
signed and dated the identification. Detective Thompson also filled out another sheet referred
to as a photograph identification form. Detective Thompson explained this form to the jury,
explaining that the form included “basic information of everything, people - people’s whose
names correspond with the photographs, my information, the case number, date, time, who
I’m showing it to and who they may or may not have made an identification, and then a brief
comments section, kind of a narrative of what was said . . . .” On the photograph
identification form, Detective Thompson wrote “she pointed to [Defendant Doss’s picture]
and identified him as the shooter.” This document was admitted into evidence.
Although this testimony is hearsay, as noted, we believe it to be an exception under
Rule 803(1.1) of the Tennessee Rules of Evidence. This section provides an exception to the
hearsay rule for “[a] statement of identification of a person made after perceiving the person
if the declarant testifies at the trial or hearing and is subject to cross-examination concerning
the statement.” The Advisory Commission Comments to this rule state the following:
-27-
Tennessee recognizes declarations of eye-witness identification as an
exception to hearsay exclusion, and the rule generally follows Tennessee
precedent. Note that the declarant must also be a witness, affording at least
delayed cross-examination as to the extrajudicial statement. Note also,
however, that witnesses other than the declarant may testify about the
identifying declaration.
At trial Ms. Hambric testified about her identification of Defendant Doss in the
photographic line-up, and she was subject to cross-examination as required by the rule.
Detective Thompson also testified regarding Ms. Hambric’s identification of Defendant Doss
in the photographic line-up, as contemplated in Rule 803(1.1). Accordingly, we conclude that
the trial court did not abuse its discretion when it allowed Ms. Hambric’s extrajudicial
identification of Defendant Doss into evidence. Defendant Doss is not entitled to relief as to
this issue.
4. Amendment of the Indictments
Defendant Doss contends that the trial court erred when it allowed the State to amend
the indictment after jeopardy had attached and over the defendants’s objection. The State
concedes that this was error but asserts that the error was harmless.
The record evinces that, during the trial, the State informed the trial court that its
indictment contained a typographical error. The indictment charging Defendant Doss with
especially aggravated robbery incorrectly listed the victim’s name as the property taken rather
than the victim’s debit cards. The State asked to amend the indictment to correct this error
asserting that it was a typographical error and “superfluous language,” as the property taken
was not an element of especially aggravated robbery. Defendant Doss’s counsel objected to
the amendment, arguing that the State had to prove that property was taken from the victim,
and, therefore, the indictment was deficient. The trial court allowed the amendment, finding
that a typographical error in this case would not change any of the elements of the offense.
An accused is constitutionally guaranteed the right to be informed of the nature and
cause of the accusation. State v. Lindsey, 208 S.W.3d 432, 437-38 (Tenn. Crim. App. 2006)
(citing U.S. Const. amend. 6, 14; Tenn. Const. art. I, § 9; see Wyatt v. State, 24 S.W.3d 319,
324 (Tenn. 2000)). Our Courts have interpreted this constitutional mandate to require an
indictment to “1) provide notice to the accused of the offense charged; 2) provide the court
with an adequate ground upon which a proper judgment may be entered; and 3) provide the
defendant with protection against double jeopardy.” Lindsey, 208 S.W.2d at 438 (citing
Wyatt, 24 S.W.3d at 324). Further, an indictment is statutorily required to “state the facts
constituting the offense in ordinary and concise language, without prolixity or repetition, in
-28-
such a manner as to enable a person of common understanding to know what is intended, and
with that degree of certainty which will enable the court, on conviction, to pronounce the
proper judgment.” Id. (citing T.C.A. § 40-13-202). An indictment need not conform to strict
pleading requirements. State v. Hill, 954 S.W. 2d 725, 727 (Tenn. 1997).
Tennessee Rule of Criminal Procedure 7(b) provides:
(b) Amending Indictments, Presentments and Informations.
(1) With Defendant’s Consent. With the defendant’s consent, the court
may amend an indictment, presentment, or information.
(2) Without Defendant’s Consent. Without the defendant’s consent and
before jeopardy attaches, the court may permit such an amendment if
no additional or different offense is charged and no substantial right of
the defendant is prejudiced.
The Tennessee Supreme Court continues to emphasize the relaxation of common law pleading
requirements, as well as its reluctance to promote form over substance in examining the
sufficiency of an indictment. See State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000).
Indictments that satisfy the requirements for adequate notice to the defendant also satisfy
constitutional and statutory requirements. Id. Correction of an “unintentional drafting error”
does not charge an additional or different offense nor prejudice a substantial right of the
defendant if the indictment clearly charges the essential elements of the offense. State v. Beal,
614 S.W.2d 77, 80 (Tenn. Crim. App. 1981).
In the case under submission, we conclude that the trial court did err when it allowed
the State to amend the indictment after jeopardy attached. We must now consider whether
this error was harmless. We conclude that the language of the indictment, along with the
specific reference to the statute allegedly violated, provided Defendant Doss with ample
notice of the offense charged. The indictment stated facts constituting the offense, including
the name of the defendant, the date of the alleged offense, and the statute violated.
Accordingly, because the indictment was sufficient prior to its amendment and no new
or different offense was charged, we conclude that the error was harmless. Defendant Doss
is not entitled to relief as to this issue.
5. Jury Instruction on Kidnapping
Defendant Doss argues that the trial court erred when it failed to instruct the jury on
-29-
“substantial interference” as to his especially aggravated kidnapping charge, pursuant to State
v. White, 362 S.W.3d 559 (Tenn. 2012). The State responds that Defendant Doss has waived
our review of this issue for failure to raise it in his motion for new trial or at the motion for
new trial hearing. We agree with the State.
The Tennessee Rules of Appellate Procedure state that “no issue presented for review
shall be predicated upon error in the . . . misconduct of jurors, parties, or counsel, or other
ground upon which a new trial is sought, unless the same was specifically stated in a motion
for new trial; otherwise such issues will be treated as waived.” Tenn. R. App. P. 3(d); See
e.g., State v. Mayo. 735 S.W.2d 811, 816 (Tenn. Crim. App. 1987) (holding that the defendant
waived an issue on appeal for failing to raise it in the motion for new trial); see also State v.
Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right
to argue on appeal any issues that should have been presented in a motion for new trial).
Because the Defendant did not challenge this issue in his motion for new trial or the hearing
on the motion, he has waived this issue on appeal.
6. Consecutive Sentencing
Defendant Doss’s final issue on appeal is a challenge to the trial court’s application of
consecutive sentencing. The State responds that the trial court properly considered the
Wilkerson factors in considering whether Defendant Doss was a dangerous offender before
imposing consecutive sentences. We agree with the State.
In State v. Bise, the Tennessee Supreme Court announced that “sentences imposed by
the trial court within the appropriate statutory range are to be reviewed under an abuse of
discretion standard with a ‘presumption of reasonableness.’” 380 S.W.3d 682, 708 (Tenn.
2012). This standard also applies to our review of a trial court’s decision to impose
consecutive sentences. State v. James Allen Pollard, – S.W.3rd –, No. M2011-0032-SC-R11-
CD (Tenn. Dec. 20, 2013). A finding of abuse of discretion “‘reflects that the trial court’s
logic and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555
(Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). To find an abuse
of discretion, the record must be void of any substantial evidence that would support the trial
court’s decision. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001); State v. Grear, 568 S.W.2d 285,
286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The
reviewing court should uphold the sentence “so long as it is within the appropriate range and
the record demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. In other words, so long as the trial
court sentences a defendant within the appropriate range and properly applies the purposes
and principles of the Sentencing Act, its decision will be granted a presumption of
-30-
reasonableness. Id. at 707.
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order
sentences to run consecutively if it finds any one of the statutory criteria by a preponderance
of the evidence. As it relates to this case, the trial court found the following criteria
applicable:
(4) The defendant is a dangerous offender whose behavior indicates little or no
regard for human life, and no hesitation about committing a crime in which the
risk to human life is high;
T.C.A. § 40-35-115. These criteria are stated in the alternative; therefore, only one need exist
to support the imposition of consecutive sentencing. See id.; State v. Denise Dianne
Brannigan, No. E2011-00098-CCA-R3-CD, 2012 WL 2131111, at *19 (Tenn. Crim. App.,
at Knoxville, June 13, 2012), no Tenn. R. App. P. 11 application filed. The imposition of
consecutive sentencing, however, is subject to the general sentencing principles that the
overall sentence imposed “should be no greater than that deserved for the offense committed”
and that it “should be the least severe measure necessary to achieve the purposes for which
the sentence is imposed [.]” T.C.A. § 40-35-103(2), (4).
At the sentencing hearing, the trial court stated that it had considered the evidence
presented both at trial and the sentencing hearing, the presentence report, sentencing
principles, arguments of counsel, the nature and characteristics of the conduct, enhancement
and mitigating factors, and the potential for rehabilitation. The trial court noted that
Defendant Doss had two prior convictions for aggravated robbery and, at the time of these
offenses, was on parole.
The trial court considered consecutive sentencing and whether Defendant Doss was
a dangerous offender for sentencing purposes. In considering Defendant Doss’s previous
convictions, the trial court stated that Defendant Doss had previously committed similar
crimes for which a parole board believed the Defendant had been rehabilitated and granted
parole. While out on parole, Defendant Doss committed the same offenses, evincing both a
need to protect the community from further crimes by Defendant Doss and Defendant Doss’s
lack of potential for rehabilitation. The trial court stated, “He appears to have just gone back
into what got him in the penitentiary in the first place.”
The trial court considered the specific facts related to the offenses, noting that
Defendant Doss did not “just rob” the victim. Defendant Doss participated in binding the
victim, rendering the victim helpless. Even after stealing the victim’s debit cards and pin
numbers, completing the robbery, Defendant Doss continued to detain the victim, ultimately
-31-
shooting and killing the victim. Finally, the trial court determined that the sentence was
reasonably related to the offense based on the continued restraint of the victim, the
circumstances surround the shooting, and Defendant Doss’s relatively short period on parole
before committing similar crimes. The trial court noted that the evidence indicated that there
was “no justification” for the shooting, as the victim was bound and helpless at the time of his
murder. Based upon these findings, the trial court found that consecutive sentencing was
appropriate.
Our review of the record reflects that the trial court did not err when it ordered
consecutive sentencing. The Defendant’s criminal record consists of four prior aggravated
robbery convictions, two felony escape convictions, one aggravated burglary conviction, one
assault conviction, one second-degree burglary conviction, and six other convictions. The
trial court imposed consecutive sentencing, pursuant to Tennessee Code Annotated section
40-35-115, on the basis that the Defendant was a dangerous offender who held “little or no
regard for human life” and had “no hesitation about committing a crime” where the risk to
human life would be high. See T.C.A. § 40-35-115(b)(4). The trial court noted that given the
Defendant’s criminal history, the length of his sentence was “justly deserved” considering the
seriousness of his convictions.
Furthermore, the trial court classified the Defendant as a dangerous offender in
imposing consecutive sentencing and properly considered the requisite Wilkerson factors in
doing so. State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). In order for a trial court to find
a defendant should serve his sentences consecutively based on his classification as a
dangerous offender, see T.C.A. § 40-35-115(b)(4), the four Wilkerson factors must be
satisfied: (1) the Defendant’s behavior indicated little or no regard for human life; (2) he did
not hesitate to act when the risk to human life was high; (3) extended confinement is
necessary to protect society; and (4) the total length of the sentence must reasonably relate to
the conviction offenses. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002); Wilkerson, 905
S.W.2d at 939.
We conclude that the trial court did not err by ordering consecutive sentencing for the
Defendant. Given the Defendant’s prior robbery convictions, we agree that the Defendant has
shown no hesitation about committing crimes when the risk to human life is high. The facts
of his current conviction, where he held a gun on and shot a partially clothed, unarmed, and
bound victim, indicate that his regard for human life is non-existent. Moreover, his use of a
weapon, despite his previous felony convictions, and his continued criminal conduct while
on parole indicates that it is necessary to protect the public from this Defendant. The evidence
supports the trial court’s finding that the Defendant should serve his sentences consecutively.
The Defendant is not entitled to relief.
-32-
B. Defendant Hathaway
1. Sufficiency of the Evidence
Defendant Hathaway argues that the evidence is insufficient to support his convictions
for first degree felony murder, especially aggravated kidnapping, and especially aggravated
robbery. The State responds that there was sufficient evidence upon which a jury could find
Defendant Hathaway guilty beyond a reasonable doubt of these offenses. We agree with the
State.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State, “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P. 13(e); State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This standard applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass,
13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253
(Tenn. Crim. App. 1990)). In the absence of direct evidence, a criminal offense may be
established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241
(Tenn. 1973). “The jury decides the weight to be given to circumstantial evidence, and ‘[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451,
457 (Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute on other grounds as stated in State
v. Barone, 852 S.W.2d 216, 218 (Tenn.1993)) (quotations omitted). The Tennessee Supreme
Court stated the rationale for this rule:
-33-
This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate
view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000) (citations omitted).
Felony murder is “[a] killing of another committed in the perpetration of or attempt to
perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft,
kidnapping, aggravated child abuse, aggravated child neglect, or aircraft piracy .” T.C.A. §
39-13-202(a)(2) (2010). In this case, the Defendant was convicted of first degree felony
murder in the perpetration of an aggravated robbery. The mental state required for this
conviction was that the Defendant possessed the intent to commit the aggravated robbery,
which was the underlying offense.
A conviction for especially aggravated robbery, as relevant to this case, requires proof
beyond a reasonable doubt that the Defendant committed an “intentional or knowing theft of
property from the person of another by violence or putting the person in fear” with the use of
a deadly weapon and the victim suffered serious bodily injury. T.C.A. §§ 39-13-401(a), -403
(2010).
Especially aggravated kidnapping, as applicable to the case herein, is defined as the
knowing and unlawful removal or confinement of another “so as to interfere substantially with
the other’s liberty” and accomplished with a deadly weapon. T.C.A. §§ 39-13-302, -305.
The evidence, presented in the light most favorable to the State, showed that Defendant
Hathaway, Defendant Doss, Christopher Doss, and Ms. Hambric drove to the America’s Best
Value Inn on Brick Church Pike. Ms. Hambric had arranged to meet the victim at this
location under other pretenses. Defendant Doss rented a room, and once inside, Defendant
Hathaway took the telephone cord from the wall. Defendant Hathaway and Defendant Doss
-34-
“role played” the robbery before the victim’s arrival at the motel. Ms. Hambric recorded this
on her cellular phone and sent the recording to her sister. Once the victim arrived, Defendant
Hathaway hid behind the door with a gun. Ms. Hambric opened the door to the victim and
as he entered, Defendant Hathaway stepped out pointing the gun at the victim. Defendant
Doss held the victim at gunpoint while Defendant Hathaway tied the victim. Defendant
Hathaway took the victim’s debit cards and drove Christopher Doss and Ms. Hambric in the
victim’s car to nearby gas stations to access money from two ATMs using the victim’s debit
cards. Upon their return to the hotel, Defendant Doss ran out of the hotel room, got into the
truck, and stated that he had killed the victim. Defendant Hathaway’s fingerprint was found
on the inside of the motel room door and his DNA was found on the tip of the latex glove
found on the bed in the room.
Defendant Hathaway’s assertion that he had “very limited involvement” is undermined
by the State’s evidence against him. Defendant Hathaway tied the victim up with phone cord,
took the victim’s debit cards, and drove Ms. Hambric to the ATM to withdraw money from
the victim’s bank account. During the perpetration of the robbery of the victim, the victim
was shot and killed. Accordingly, we conclude that the State presented sufficient evidence
upon which the jury could find the Defendant guilty beyond a reasonable doubt of first degree
felony murder, especially aggravated robbery, and especially aggravated kidnapping.
Defendant Hathaway is not entitled to relief as to this issue.
2. TBI Special Agent Frizzell’s Testimony
Defendant Hathaway asserts that the trial court erred when it allowed the State to
present “unreliable evidence” about cellular telephone tower technology through Special
Agent Frizzell’s testimony. He argues that Agent Frizzell was “unqualified to provide any
interpretive testimony regarding the use of cell phone towers to track the location of an
individual phone.” The State responds that because Defendant Hathaway did not object to the
introduction of this testimony he has waived appellate review. We agree with the State.
Appellate relief is generally not available when a party is “responsible for an error” or
has “failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of any error.” Tenn. R. App. P. 36(a); see State v. Killebrew, 760 S.W.2d 228, 235
(Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a contemporaneous
objection); see also State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v.
Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App. 1987). Tennessee Rule of Evidence
103(a)(1) also provides that “[e]rror may not be predicated upon a ruling which admits or
excludes evidence unless . . . a timely objection or motion to strike appears of record, stating
the specific ground of objection.” When a party does not object to the admissibility of
evidence, the evidence becomes admissible, notwithstanding any other evidentiary rule to the
-35-
contrary, and the jury may consider that evidence for its “natural probative effect as if it were
in law admissible.” State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981).
At trial, Agent Frizzell testified, with no objection, regarding a visual aid he helped
develop for trial. Defendant Hathaway declined to ask any questions on cross-examination.
During the State’s redirect examination, Defendant Doss’s attorney objected to a question and
the objection was overruled. Accordingly, we conclude that Defendant Hathaway has waived
our review of this issue.
3. Amendment of Indictment
Defendant Hathaway makes the same challenge to the amendment of the indictment
for especially aggravated robbery as we addressed earlier as one of Defendant Doss’s issues
on appeal. Defendant Hathaway, however, made no objection at trial to the State’s
amendment. Appellate relief is generally not available when a party is “responsible for an
error” or has “failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of any error.” Tenn. R. App. P. 36(a); see State v. Killebrew, 760 S.W.2d 228,
235 (Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a
contemporaneous objection); see also State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim.
App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App. 1987). Although
Defendant Hathaway raised no objection to the amendment, even had he done so, we have
already determined that any error resulting from the State’s delayed amendment of the
indictment was harmless.
4. Juror Misconduct
Defendant Hathaway argues that the trial court erred when it failed to notify “all
parties” that he knew one of the jurors, who later became the jury foreman. The State
responds that Defendant Hathaway has waived our review of this issue for failing to timely
raise it in his motion for new trial. We agree with the State.
Defendant Hathaway filed his motion for new trial on April 18, 2012. In it he alleged
six errors, none of which was juror misconduct. The hearing on both defendants’ motions for
new trial was held on October 4, 2012. Thereafter, on October 10, 2012, Defendant Hathaway
filed an amended motion which included the allegation about the trial court’s failure to
disclose his relationship with a juror.
The Tennessee Rules of Appellate Procedure state that “no issue presented for review
shall be predicated upon error in the . . . misconduct of jurors, parties, or counsel, or other
ground upon which a new trial is sought, unless the same was specifically stated in a motion
-36-
for new trial; otherwise such issues will be treated as waived.” Tenn. R. App. P. 3(d); See
e.g., State v. Mayo. 735 S.W.2d 811, 816 (Tenn. Crim. App. 1987) (holding that the defendant
waived an issue on appeal for failing to raise it in the motion for new trial); see also State v.
Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right
to argue on appeal any issues that should have been presented in a motion for new trial). The
State correctly notes that, in State v. Hatcher, 310 S.W.3d 788 (Tenn. 2010), our Supreme
Court held that “amendments to timely filed motions for new trial may be had ‘until the day
of the hearing on the motion for a new trial,’ Tenn. R. Crim. P. 33(b) (emphasis added), but
not after the trial court has entered an order denying a new trial.” Id. at 803. Accordingly,
Defendant Hathaway has waived this issue.
5. Standard for Circumstantial Evidence
Defendant Hathaway asserts that the trial court instructed the jury on the wrong
standard for circumstantial evidence. The State responds that the trial court correctly used the
standard adopted in State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011). We agree with the
State.
The standard laid out in State v. Crawford, required the State to present proof “so
strong and cogent as to exclude every other reasonable hypothesis save guilt of the defendant,
and that beyond a reasonable doubt.” 470 S.W.2d 610, 612 (1971). In January 2011, our
Supreme Court issued Dorantes, which adopted the federal standard that the sufficiency of
the evidence standard was the same for circumstantial or direct evidence. 331 S.W.3d at 381.
The Dorantes court cited a Supreme Court case regarding the standard enunciated in
Crawford as “confusing and incorrect” to require an additional instruction. Id. at 380. The
trial in this case was in October 2011; however, Defendant Hathaway argues that he was
indicted in October 2010 before the Dorantes opinion and, therefore, the old standard should
have applied.
The State correctly notes that both the Tennessee Supreme Court and this Court began
utilizing the same standard for direct and circumstantial evidence shortly after the issuance
of Dorantes to cases in which the crimes had occurred before January 2011. See State v. Sisk,
343 S.W.3d 60, 62 (Tenn. 2011) (crimes committed in 2006); State v. Parker, 350 S.W.3d
883, 888, 903 (Tenn. 2011) (crimes committed in 2003); State v. Martinez, 372 S.W.3d 598,
601, 604-05 (Tenn. Crim. App. 2011) (crimes committed in 2008).
Defendant Hathaway contends that he should have been afforded the circumstantial
rule that was in effect at the time of the commission of the offenses rather than the “new, more
relaxed standard.” The Tennessee Supreme Court in Dorantes, however, noted that “[i]n
practice, the distinction between the federal standard and the ‘reasonable hypothesis’ language
-37-
used in our state has rarely made a difference” thus providing “little reason to refine” the
standard. Dorantes 331 S.W.3d at 380.
Accordingly, we conclude that the trial court did not err when it used the standard
announced in Dorantes. Defendant Hathaway is not entitled to relief as to this issue.
III. Conclusion
In accordance with the foregoing reasoning and authorities, the judgments of the
trial court are affirmed.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
-38-