State of Tennessee v. Alonzo Hoskins

07/15/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 21, 2021
STATE OF TENNESSEE v. ALONZO HOSKINS
Appeal from the Criminal Court for Knox County
No. 111103 Bobby R. McGee, Judge
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No. E2020-00052-CCA-R3-CD
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A Knox County jury convicted the Defendant, Alonzo Hoskins, of six counts of felony
murder of the victim, based upon six underlying felonies, and one count of especially
aggravated robbery. The trial court merged the Defendant’s convictions for felony murder
and imposed a life sentence plus twenty years for especially aggravated robbery. On
appeal, the Defendant asserts that: (1) all counts of the presentment failed to allege an
offense; (2) the trial court erred when it denied his motion to suppress the cell phone
records; (3) the trial court erred by preventing defense counsel from making an inquiry or
proper record into the competency of a juror; (4) the prosecutor’s closing argument was
improper; and (5) the evidence was insufficient to support his convictions. After a
thorough review of the record and applicable law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.
Keith Lowe, Knoxville, Tennessee, for the appellant, Alonzo Hoskins.
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
This case arises from the May 30, 2017 shooting death of the victim, Jack McFall.
For his role in the victim’s death, a Knox County grand jury indicted the Defendant for
felony murder in the perpetration of an attempted robbery (count one), felony murder in
the perpetration of a robbery (count two), felony murder in the perpetration of an attempted
burglary (count three), felony murder in the perpetration of a burglary (count four), felony
murder in the perpetration of an attempted theft (count five), felony murder in the
perpetration of a theft (count six), and especially aggravated robbery (count seven).
A. Suppression Hearing
The Defendant filed a motion to suppress the cell phone records involved in this
case because the trial court lacked authority to issue the search warrant. At the hearing on
the motion, the Defendant testified that the cell phone number he owned at the time of this
killing ended in -0769. The State and the Defendant stipulated that the Defendant had a
cell phone in his possession at the time of his arrest. The Defendant argued that the trial
judge who signed the search warrant lacked authority to issue a warrant for property located
outside of his jurisdiction because the business address of AT&T, listed on the search
warrant, was in North Palm Beach, Florida, rather than in Tennessee. The Defendant
further argued that the search warrant did not establish a nexus between the cell phone data
and the crime.
The State argued that the affidavit of Lieutenant Heather Reyda was sufficient to
establish a nexus between the cell phone data and the crime. The State further contended
that the search warrant was sent to the AT&T office in North Palm Beach, Florida (the
address listed on the search warrant) because AT&T preferred to receive all subpoenas and
search warrants in one centralized location. The State noted that AT&T conducted
business and maintained data through its office in Knox County, Tennessee.
After hearing the arguments of the parties, the trial court denied the Defendant’s
motion to suppress. It found that although the search warrant was issued in Knox County
for cell phone records stored digitally in Florida, the Knox County judge was not
compelling disclosure in Florida. The trial court further found:
It is simply the way the business has asked for the matter - - for this process
to occur, wherein a [S]tate of Tennessee search warrant can be honored
even though they digital - - digitally stored materials may be in a different
state. At any rate, I don’t see that this is a search conducted in violation
of the service provider’s rights or the [D]efendant’s rights.
B. Trial
At the Defendant’s trial, the parties presented the following evidence: the victim’s
wife, Sandra McFall, testified that the victim’s cell phone number at the time of his death
ended in -7367. Ms. McFall testified that she first saw the Defendant, whom she knew as
“T,” in January or February 2017, as he was walking around in her yard having a
conversation with the victim. She said that the two were accompanied by another, darker
complected, African-American man. Ms. McFall testified that the Defendant wore his hair
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in “corn rows,” and the other man had a “small afro” hairstyle. Ms. McFall testified that
the victim walked with a cane due to a stroke that affected the left side of his body.
Ms. McFall said that she saw the Defendant a second time in April 2017 when he
knocked on the door of her residence and asked for the victim. She said that the victim
allowed the Defendant into the residence, but she did not hear their conversation. Ms.
McFall testified that she returned from vacation on May 22, 2017, to accompany the victim
to a doctor’s appointment scheduled for the following day. She noted that the victim was
upset when she arrived home about some pain pills that he had purchased from the
Defendant. Ms. McFall explained that the victim purchased the pills from the Defendant
to resell. She said that the victim called the Defendant many times, and he became irate
that the Defendant did not answer the phone. She identified the receipt from Rocky Hill
Family Physicians as the payment that the victim made for the May 23 appointment. Ms.
McFall testified that at some point after 4:15 p.m. on May 30, 2017, the victim left home
after receiving a communication from “someone.”
On cross-examination, Ms. McFall admitted that she did not approve of the victim
selling pain pills, and she attempted to separate herself from his activities. She did not
think that any threats were exchanged between the victim and the Defendant.
On redirect examination, Ms. McFall read into evidence several text messages from
the victim’s cell phone records. She identified an exchange, occurring on May 24, 2017,
between the victim’s cell phone number and “T’s new number,” meaning the Defendant’s
cell phone number which ended in -0769. On that day, the Defendant texted the victim:
“Call me, Jack. It’s important. This is T.” One minute later, the Defendant texted the
victim: “It’s about business. I need to make sure everything was straight the last visit. I
just got a call from somebody and they tell me something wasn’t right with that order.”
The victim then replied: “You gave me 105 instead of 110 and 35 of them are fake.”
Three days later, on May 27, 2017, the Defendant texted the victim: “What’s up,
Jack.” The victim replied: “When are you going to be coming in?” The Defendant replied:
“Monday. How many you want me to bring you?” The victim texted the Defendant: “The
40 you owe me, plus 60.” On May 30, 2017, the victim sent a text message to the Defendant
asking: “What happened to Monday?” A short time later, the victim received a text
message from a cell phone number ending in -0853, which was entered into the victim’s
phone as also belonging to “T.” The message read: “What’s up, Jack?” To which the
victim replied: “Who is this?” The Defendant texted: “T.” The Defendant next asked:
“You ready?” At 4:39 p.m. the victim replied: “Sure.” Ms. McFall noted that the victim
then left the house soon after. The Defendant next texted the victim: “I’m not driving. I
took the bus again. Can you meet me at the room you took me to that one time you picked
me up?” The victim replied: “I can’t remember the room number.” The Defendant and
the victim exchanged several more texts, and the Defendant said: “The same room you
took me to at the Red Roof Inn, Strawberry Plains.” The Defendant then texted: “It’s 109
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total.” To which the victim replied: “I’m on my way.” The Defendant texted: “Okay call
me when you’re outside[]” and “$4,140.”
Lieutenant Heather Reyda of the Knox County Sheriff’s Office, Major Crimes Unit,
testified that on May 30, 2017, she received a call informing her that the victim had been
shot in the parking lot of the Red Roof Inn located near the Strawberry Plains Pike Exit on
Interstate 40. Lieutenant Reyda responded to the scene as the lead investigator and saw
that the victim was in his van still buckled in by the seat belt. The responding officers
informed her that the shooting had been captured on the hotel’s video surveillance camera.
She reviewed the surveillance video and saw what appeared to be one, darker complected,
black male and one lighter-complected black or Hispanic male (“the shooter”). From
reviewing the video, Lieutenant Reyda said that the shooter stepped out of the back of the
victim’s van, raised a weapon, and fired. In the video, another man, who wore a red shirt,
appeared unarmed but carried what appeared to be a white envelope. Lieutenant Reyda
also saw what appeared to be a light blue car with a black convertible top, possibly a
Chrysler Sebring, in the video.
Lieutenant Reyda testified that she obtained the victim’s cell phone and looked at
the last phone numbers to communicate with him, opining that the victim’s last contacts
would be the suspects in his murder. Lieutenant Reyda testified that with the assistance of
the Federal Bureau of Investigation (“FBI”), she began “pinging” the cell phone numbers
associated with the victim’s phone. She said that still photographs were immediately taken
from the surveillance video and released to the media. This led to a tip from a caller, who
identified himself as Tim Wells, for a possible suspect, and Lieutenant Reyda interviewed
Mr. Wells. He showed her a cell phone number entered into his phone ending in -0769,
which was one of the numbers that they were pinging. Mr. Wells had the contact
information for the phone number listed as belonging to “Alonzo Smith.” He also reported
seeing the Defendant on McCalla Avenue. Lieutenant Reyda testified that the victim’s van
was processed for evidence, and the Defendant’s fingerprint was found inside the van.
Lieutenant Reyda testified that as a result of pinging the Defendant’s phone, the
Defendant was located in Detroit, Michigan, and taken into custody on June 2, 2017. She
and her partner flew to Detroit and collected evidence, and they attempted to interview the
Defendant. Lieutenant Reyda testified that two men, Corey Crawford and Eric Fields, were
in the car with the Defendant at the time of his arrest. Further investigation proved that
Mr. Crawford’s fingerprints were found in an apartment that the Defendant had previously
rented located on McCalla Avenue in Knoxville. Lieutenant Reyda testified that, while
Mr. Crawford and Mr. Fields both matched the overall description of the man carrying the
envelope in the surveillance video, she was unable to positively identify the second man,
who wore the red shirt, in the video. Lieutenant Reyda identified a Chrysler key, which
operated a van found in Detroit, taken from the Defendant at the time of his arrest. She
was unable to locate the keys to the victim’s van.
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Lieutenant Reyda testified that she obtained consent from the homeowner at the
Defendant’s residence in Detroit to collect some items from the house. Those items
included a pair of camouflage shorts and a pair of black and white “retro” Air Jordan tennis
shoes. Lieutenant Reyda testified that the shorts and shoes resembled those worn by the
shooter in the surveillance video. A receipt for a pair of Air Jordan tennis shoes purchased
in Knoxville was also found in the Defendant’s Detroit residence. Lieutenant Reyda
testified that she observed the Defendant’s gait and hairstyle while they were in Detroit.
She said: “He had a very distinct gait. It would appear that his one foot kind of went out
really far and that he walked with a limp, which matched the walk of who I thought was
the shooter in the video.” Lieutenant Reyda testified that the Defendant’s hairstyle
appeared to be the same hairstyle of the shooter in the surveillance video. She noted that
the Defendant had a “very distinct receding hairline.”
Lieutenant Reyda testified that she had a “forensic dump” performed on the victim’s
phone. She then read the text messages between the victim and the Defendant into the
record that had already been read into the record by Ms. McFall. Lieutenant Reyda testified
that the victim had $140 in his shirt pocket at the time of his death. There was $1,000 in
an envelope found under the victim’s leg and $1,000 in an envelope on the floorboard of
the victim’s van. Lieutenant Reyda testified that she believed that the man in the video
dressed in the red shirt had what appeared to be a white envelope in his hand. She noted
that a total of $2,140 was recovered from the van, and if there were two other envelopes
taken from the van with $1,000 each, there would have been a total of $4,140.00, the
amount referenced in text messages between the victim and the Defendant.
Lieutenant Reyda testified that she also analyzed the Defendant’s phone records for
the phone numbers ending in -0769 and -0853. She said that the phones associated with
the two numbers were located in Knoxville on May 30, 2017, but they were not in the State
of Tennessee between May 23, 2017 and May 30, 2017. Lieutenant Reyda testified that
the global positioning (GPS) coordinates from cell phone towers for the cell phones
associated with the numbers ending in -0853 and -0769 showed that they were in the area
of McCalla Avenue in Knoxville at approximately 1:00 p.m. on May 30, 2017, when Mr.
Wells reported seeing the Defendant there. Based upon her investigation of the case,
Lieutenant Reyda identified the Defendant as the shooter in the video.
On cross-examination, Lieutenant Reyda confirmed that the phone number ending
in -0853 was the last number to contact the victim’s phone, and the number for the phone
in the Defendant’s possession at the time of his arrest ended in -0769. She said that
according to the victim’s phone, the number ending in -0853 belonged to “T,” which was
the Defendant’s “street name.” She agreed that the number did not exist in the victim’s
phone until shortly before his death and after the victim texted, “Who is this?” Lieutenant
Reyda admitted that she was unable to find any documentation that the Defendant owned
the phone associated with number -0853, and she did not recover a phone associated with
the number. She agreed that she had no personal knowledge as to who had access to the
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phone. Through her investigation, Lieutenant Reyda believed that the phone belonged to
and was used by the Defendant on May 30, 2017, in part because a text message to the
victim from the -0853 number read, “This is T.” She said that GPS coordinates also showed
that the phones were together at similar times and places from Detroit to Knoxville and
back to Detroit.
Lieutenant Reyda testified that the Defendant and the victim were both involved in
buying and selling pain pills, and the victim was in contact with other individuals about
buying and selling pills. She agreed that the Defendant appeared to be the victim’s supplier
of pills and that the Defendant brought them from Detroit to Knoxville. Lieutenant Reyda
agreed that her department originally issued a “Be On the Lookout” (“BOLO”) notice that
indicated that one of the suspects in the victim’s murder was white and the other was black.
On redirect-examination, Lieutenant Reyda testified that the phone associated with
-0769 was turned off sometime before the victim’s death. It was turned back on after his
death on the Defendant’s way back to Detroit. Lieutenant Reyda reiterated that the phones
associated with the numbers ending in -0769 and -0853 were together after leaving
Knoxville and while travelling back to Detroit.
Dr. Amy Hawes, a forensic pathologist employed by the Knox County Regional
Forensic Center, performed an autopsy on the victim’s body. She determined that the
manner of the victim’s death was homicide, and the cause of death was multiple gunshot
wounds.
In May 2017, Dondre Penn was working for the Detroit Police Department and was
assigned to the FBI task force. In June 2017, he was asked to assist the Knox County
Sheriff’s Office in locating the Defendant. Officer Penn testified that he located the
Defendant at a gas station in the Detroit area by “pinging” the Defendant’s cell phone.
Officer Penn noted that he had been advised to look for the cell phone and tennis shoes in
the Defendant’s possession and that the Defendant might be driving a Chrysler Sebring.
Officer Penn testified that the Defendant had the cell phone, associated with a cell phone
number ending in -0769, in his possession when he was taken into custody.
Michael Allen Mays, the custodian of records for the Knox County Emergency
Communications District, 911, testified that a call from Tim Wells came into the 911 center
at 1:02 p.m. on May 30, 2017. The call was played for the jury, and Mr. Mays stated that
Mr. Wells informed the operator that Alonzo Smith, whom he later identified as the
Defendant, was present on McCalla Avenue in Knoxville. Mr. Wells described the
Defendant as riding in a blue BMW accompanied by another man dressed in red. Mr. Mays
testified that a second call came into the 911 center at 5:41 p.m. on May 30, 2017. The call
came from the Red Roof Inn located on Crosswood Boulevard in Knoxville, Tennessee,
and the caller reported hearing gunshots. Mr. Mays testified that a BOLO was issued at
8:31 p.m. on that same date for a “[l]ate model Chrysler Sebring, two-door convertible,
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light blue and silver/black convertible top, possibly West Virginia tags.” The occupants of
the car were described as one black male and one white male. Mr. Mays agreed that the
description of the car did not match the description of the vehicle that the Defendant was
allegedly seen in at the time of the first call.
Samir Patel testified that he was employed by the Red Roof Inn and Suites located
on Crosswood Boulevard in Knoxville. He noted that the hotel had sixteen video
surveillance cameras located both inside and outside of the hotel. Mr. Patel testified that
on May 30, 2017, police notified him of a shooting. He arrived at the hotel and provided
a copy of the surveillance video to police.
Mr. Patel identified a receipt for Room 122 at the Red Roof Inn dated December
11-14, 2016. The room was registered in the Defendant’s name and listed his home address
in Grosse Pointe, Michigan. Mr. Patel also identified a receipt for Room 123 at the hotel
dated December 11-18, 2016. The room was registered in Justin Smith’s name and listed
his home address as a residence located on East Edgemont Avenue, Montgomery,
Alabama.
On cross-examination, Mr. Patel testified that there were two males in the
surveillance video wearing hoodies. He agreed that his testimony at the preliminary
hearing was that he believed one of the individuals was black and the other was white but
that he could not tell the race of the man with the lighter complexion from the surveillance
video.
Tim Wells testified that prior to May 30, 2017, he knew the Defendant as Alonzo
Smith rather than Alonzo Hoskins. Mr. Wells testified that he and his wife rented an
apartment to the Defendant on McCalla Avenue in east Knoxville. The lease was dated
January 2, 2017, in the name of Alonzo Smith. The Defendant’s brother, Justin Smith,
rented the apartment across the hall from the Defendant. Mr. Wells testified that, at some
point, the Defendant abandoned the apartment and did not pay rent for a couple of months.
Mr. Wells said that he saw the Defendant at the property at approximately 1:00 p.m. on
May 30, 2017, in a blue sedan that Mr. Wells thought was a BMW, and he called 911.
Later that day, Mr. Wells saw a story on the news about a shooting at an east Knoxville
hotel. He then saw either a video or a still shot of the blue sedan that he saw earlier in the
day, and he again called police. The car was later determined to be a blue Chrysler Sebring.
Mr. Wells testified that he knew the Defendant walked with a slight limp. He
viewed the surveillance video from the Red Roof Inn and Suites and noted that the
individual on the video appeared to walk with a limp similar to that of the Defendant. Mr.
Wells testified that the individual on the video who exited the back of a van appeared to be
the Defendant, agreeing that the individual had a hairstyle similar to the one Defendant
wore on May 30, 2017. Mr. Wells noted that the Defendant usually had two cell phones
on a lanyard around his neck, and he identified a photograph of the Defendant with two
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cell phones on a lanyard around his neck. On cross-examination, Mr. Wells agreed that he
had previously identified the Defendant’s vehicle as a white Cadillac Eldorado. He said
that someone else at the apartment told him that the car looked like a blue BMW.
On redirect examination, Mr. Wells testified that an unidentified man, dressed in
red, that Mr. Wells had seen with the Defendant in the car appeared to be the same person
in the video from the Red Roof Inn. Mr. Wells testified that there were three other cars at
the apartment when he saw the Defendant: a white Cadillac, an old Oldsmobile, and what
he believed to be a blue BMW. Mr. Wells did not see which vehicle the Defendant got
into, so he attempted to describe all of the vehicles to the 911 operator. Mr. Wells testified
that the image of the blue vehicle from the hotel, which was later determined to be a
Chrysler Sebring, appeared to be similar to the vehicle that he saw at the apartment. Mr.
Wells reiterated that he believed the man in the video from the hotel was the Defendant
based on similarities between their walk, hairline, and skin color. His identification was
further confirmed by the fact that, when he saw the Defendant that evening, he was
accompanied by a man dressed in red and the two were in a blue car similar to the one seen
in the video.
Philip Finara, an independent contractor who was the custodian of records for
AT&T at the time of trial, explained that AT&T’s information was stored in their network,
and records were kept in the normal course of business. Mr. Finara testified that “once a
subpoena [wa]s sent, information [wa]s pulled out and sent to the Court.” Pursuant to a
subpoena in this case, Mobility Usage Reports were prepared for two phone numbers
ending in -7367 and -0769. The report for the number ending in -0769 also included “cell
location.” Mr. Finara explained that his records included the cell site identification of the
cell phone tower the phone used, including the longitude and latitude of that particular
tower.
Kenneth LeCesne, the records custodian for T-Mobile, Metro PCS Cellular
Telephone Company, in Richland, Texas, testified that T-Mobile phone records were
maintained electronically. Mr. LeCesne further testified that call detail records were
actually phone logs that were kept at the time that calls were made or received by a T-
Mobile or Metro PCS customer. He received a search warrant from the Knox County
Sheriff’s Office for phone records from May 30, 2017, for a phone number ending in -
0853.
Shane Addington, the custodian of records for C&C Motor Company, testified that
the Defendant entered into a contract with the company on January 5, 2017, for the
purchase of a vehicle. Mr. Addington testified that the Defendant listed his phone number
on the contract as ending in -0769.
Rebecca Davis testified that she was visiting the zoo in Knoxville on May 30, 2017,
with her husband, John, and their children. They decided to stay overnight at the Red Roof
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Inn and Suites. Mrs. Davis testified that, just before 6:00 p.m., she and her family were in
the parking lot leaving for dinner when she heard at least two gunshots and saw two men
running. One of them she described as a black male wearing a red sweatshirt and armed
with a gun. She said that the other man was further away from her. Mrs. Davis testified
that she and her family got into the car, and her husband drove away. A car suddenly drove
up behind their vehicle and began tailgating them. Mrs. Davis testified that she was afraid
that they had just witnessed something at the hotel and that “somebody was coming after
[them].” Mrs. Davis testified that her husband pulled over, and the car passed them. She
thought the car was light blue or some other light color with either a Michigan or West
Virginia license plate. Mrs. Davis testified that her husband drove to a gas station, and she
called 911 and the hotel to report what they had seen. Mrs. Davis testified that she and her
family moved to a different hotel and later met with Lieutenant Reyda to give a statement.
On cross-examination, Mrs. Davis agreed that she told Lieutenant Reyda that she
thought the second man she saw running appeared to be either white or Hispanic but that
she did not get a good look at him.
Mrs. Davis’s husband, John Davis, testified and confirmed Ms. Davis’s account of
the events surrounding the shooting. He said that, as he attempted to buckle his son into
the car seat, he heard gunshots. He then saw an armed man run out from between two cars
parked near them. He also remembered hearing voices but could not tell what they were
saying. Mr. Davis saw other vehicles in the parking lot that were not there earlier. He
thought that the voices came from the area of those vehicles. Mr. Davis testified that, after
he and his family left the hotel, he remembered seeing a light-colored vehicle drive up
behind them.
Sandi Campbell of the Knox County Sheriff’s Department, Forensic Services Unit,
went to the Red Roof Inn and Suites on May 30, 2017, to collect evidence and document
the scene. Deputy Campbell testified that there were two envelopes in the victim’s van
each containing $1,000 in $100 bills. She saw a bullet hole in the interior driver’s side
door of the van, and officers found the projectile from a bullet inside the driver’s side door
panel. Deputy Campbell said that a .40-caliber cartridge casing was in the back driver’s-
side seat and that a second cartridge casing was in the front passenger seat. Deputy
Campbell testified that a piece of paper was recovered from the scene that had a fingerprint
lifted from it. A Cricket ZTE cell phone was collected from the victim’s left shirt pocket.
Deputy Campbell testified that the van’s interior was processed for fingerprints, and some
were obtained for further analysis. A bullet fragment was later recovered from the victim’s
abdomen during his autopsy. Deputy Campbell testified that she reviewed the surveillance
video, which showed one of the suspects wiping down both the inside and outside of the
van.
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Nikki Hoskins, the office manager for Rocky Hill Family Physicians, who
maintained the records for the practice, identified a credit card receipt from their online
processing system for the victim dated May 23, 2017, at 9:46 a.m.
Tom Finch of the Knox County Sheriff’s Office, Forensic Services Unit, testified as
an expert in the field of identification of latent fingerprints. He processed several items in
the present case for fingerprints, including the receipt from Rocky Hill Family Physicians.
Mr. Finch determined that a fingerprint from the receipt came from the Defendant’s left
ring finger.
Based upon this evidence, the jury convicted the Defendant of felony murder in the
perpetration of an attempted robbery, felony murder in the perpetration of a robbery, felony
murder in the perpetration of an attempted burglary, felony murder in the perpetration of a
burglary, felony murder in the perpetration of an attempted theft, felony murder in the
perpetration of a theft, and especially aggravated robbery. The trial court merged the
Defendant’s convictions for felony murder and imposed a life sentence plus twenty years
for especially aggravated robbery.
I. Analysis
On appeal, the Defendant asserts that: (1) all counts of the presentment failed to
allege an offense; (2) the trial court erred when it denied his motion to suppress the cell
phone records; (3) the trial court erred by preventing defense counsel from making an
inquiry or proper record into the competency of a juror; (4) the prosecutor’s closing
argument was improper; and (5) the evidence was insufficient to support his convictions.
A. Sufficiency of the Presentment
The Defendant asserts that each count of the presentment failed to provide notice of
the “acts he was charged to defend and fail[ed] to protect him from double jeopardy.” More
specifically, he complains that the presentment failed to allege the specific property taken
from the victim in counts one, two, five, six, and seven, and that it failed to allege the
specific theory of burglary in counts three and four. The State responds that the Defendant
has waived his argument with respect to counts one through six of the presentment because
he failed to include arguments as to those counts in his motion for new trial, and that despite
the waiver, all seven counts of the presentment were “sound.”
We agree with the State that the Defendant has waived this issue as to counts one
through six of the presentment because he only challenged count seven in the motion for
new trial as being void. Tenn. R. App. P. 3(e). While the Defendant did assert in his
motion for new trial that the trial court erred by denying his motion for a bill of particulars,
he does not raise the issue in his brief on appeal.
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Even if the Defendant did not waive his argument with respect to counts one through
six, all seven counts of the presentment were sufficient to inform the Defendant of the
nature of the charges against him. Challenges to the validity of an indictment or
presentment present questions of law and, thus, are reviewed de novo. State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997). Pursuant to the provisions of both the Tennessee and
United States Constitutions criminal defendants have a right to know “the nature and cause
of the accusation.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. “As Tennessee courts
have held, in order to satisfy the constitutional requirement, an indictment or presentment
must provide a defendant with notice of the offense charged, provide the court with an
adequate ground upon which a proper judgment may be entered, and provide the defendant
with protection against double jeopardy.” State v. Byrd, 820 S.W.2d 739, 741 (Tenn.1991);
see also State v. Duncan, 505 S.W.3d 480, 484 (Tenn. 2016). A “valid indictment is an
essential jurisdictional element, without which there can be no prosecution.” Dykes v.
Compton, 978 S.W.2d 528, 529 (Tenn.1998). Tennessee Code Annotated section 40-13-
202 (2018) states:
The indictment must state the facts constituting the offense in ordinary
and concise language, without prolixity or repetition, in 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 . . . .
Indictments or presentments are reviewed from an “enlightened standpoint of
common sense and right reason rather than from the narrow standpoint of petty preciosity,
pettifogging, technicality or hair splitting fault finding.” Hill, 954 S.W.2d at 728 (quoting
United States v. Purvis, 580 F.2d 853, 857 (5th Cir. 1978)). In a number of cases since
Hill, this court has held that an indictment meets statutory and constitutional requirements
if it “achieve[s] the overriding purpose of [providing] notice to the accused,” noting the
Court’s “relaxation of common law pleading requirements and its reluctance to elevate
form over substance.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000); see also
State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); Crittenden v. State, 978 S.W.2d 929, 931
(Tenn. 1998); Ruff v. State, 978 S.W.2d 95, 99 (Tenn. 1998). “It is generally sufficient for
the indictment to state the offense charged in the words of the statute.” State v. Majors,
318 S.W.3d 850, 864 (Tenn. 2010); see Sledge, 15 S.W.3d at 95. Additionally, “theories
available to support a conviction of [an] offense [are] not required to be included in the
indictment.” State v. Lemacks, 996 S.W.2d 166, 172 (Tenn. 1999); T.C.A. § 40-13-206(a).
As to the seven counts in this case, the presentment alleges:
The Grand Jurors for the State of Tennessee upon their oaths, present that
ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or about the 30th
day of May, 2017, in the State and County aforesaid, did unlawfully kill
Jack McFall during the attempt to perpetrate Robbery, in violation of
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T.C.A. 39-13-202, and against the peace and dignity of the State of
Tennessee.
SECOND COUNT
And the Grand Jurors aforesaid, upon their oaths aforesaid, do further
present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or
about the 30th day of May, 2017, in the State and County aforesaid, did
unlawfully kill Jack McFall during the perpetration of Robbery, in
violation of T.C.A. 39-13-202, and against the peace and dignity of the
State of Tennessee.
THIRD COUNT:
And the Grand Jurors aforesaid, upon their oaths aforesaid, do further
present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or
about the 30th day of May, 2017, in the State and County aforesaid, did
unlawfully kill Jack McFall during the attempt to perpetrate Burglary, in
violation of T.C.A. 39-13-202, and against the peace and dignity of the
State of Tennessee.
FOURTH COUNT:
And the Grand Jurors aforesaid, upon their oaths aforesaid, do further
present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or
about the 30th day of May, 2017, in the State and County aforesaid, did
unlawfully kill Jack McFall during the perpetration of Burglary, in
violation of T.C.A. 39-13-202, and against the peace and dignity of the
State of Tennessee.
FIFTH COUNT:
And the Grand Jurors aforesaid, upon their oaths aforesaid, do further
present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or
about the 30th day of May, 2017, in the State and County aforesaid, did
unlawfully kill Jack McFall during the attempt to perpetrate Theft, in
violation of T.C.A. 39-13-202, and against the peace and dignity of the
State of Tennessee.
SIXTH COUNT:
And the Grand Jurors aforesaid, upon their oaths aforesaid, do further
present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or
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about the 30th day of May, 2017, in the State and County aforesaid, did
unlawfully kill Jack McFall during the perpetration of Theft, in violation
of T.C.A. 39-13-202, and against the peace and dignity of the State of
Tennessee.
SEVENTH COUNT:
And the Grand Jurors aforesaid, upon their oaths aforesaid, do further
present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or
about the 30th day of May, 2017, in the State and County aforesaid, did
unlawfully, knowingly by violence, take from the person of Jack McFall,
Property, where Jack McFall suffered serious bodily injury, said taking
accomplished with a deadly weapon, in violation of T.C.A. 39-13-403,
and against the peach and dignity of the State of Tennessee.
The presentment was sufficient because it provided the Defendant with notice of the
charged offenses, gave the trial court jurisdiction over the case, and protected the
Defendant from double jeopardy. This court has previously held that a felony murder
indictment or presentment must allege that the murder was committed during the
perpetration of, or the attempt to perpetrate, a felony but need not include specific
allegations of the elements and facts of the underlying felony. See State v. Alfonzo E.
Anderson, No. W2000-00737-CCA-R3-CO, 2002 WL 1558491, at *2 (Tenn. Crim. App.,
at Jackson, Jan. 9, 2002) (“specific allegations of the elements and facts of the underlying
felony are unnecessary”); Alan D. Lawhorne v. State, No. 273, 1990 WL 70908, at *2
(Tenn. Crim. App., at Knoxville, May 31, 1990) (“We do not think an allegation of the
underlying felony was necessary to the validity of the indictment”). Moreover, it is not
necessary for an indictment or presentment to allege what was taken during a robbery,
burglary, or theft. Majors, 318 S.W.3d at 864 (the indictment was valid despite the failure
to identify the “thing” with which the defendant tampered); State v. Guy L. Hines, No.
E2012-02456-CCA-R3-CD, 2013 WL 5940634, at *5 (Tenn. Crim. App., at Knoxville,
Nov. 5, 2013) (“while proof pertaining to [the elements of theft] is essential in order to
sustain a robbery conviction, the law is clear that the constitutional requirements necessary
to sustain an indictment are less exacting”); see also State v. Haynes, 720 S.W.2d 76, 83
(Tenn. Crim. App. 1986) (an indictment for burglary “must set forth and define the felony
intended to be committed” but it is “not necessary to set forth exactly what the burglar
intended to steal”). Finally, as pointed out by the State, a citation to the especially
aggravated robbery statute alone in count seven would have provided sufficient notice to
the Defendant of the charge against him. Charles A. Guess v. Phillips, No. W2019-01347-
CCA-R3-HC, 2020 WL 1875233, at *2 (Tenn. Crim. App., at Jackson, Apr. 15, 2020),
perm. app. denied (Tenn. Aug. 11, 2020). The Defendant is not entitled to relief on this
issue.
B. Denial of Motion to Suppress
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The Defendant contends that trial court erred in denying his motion to suppress cell
phone records related to his cell phone number ending in -0769. Citing State v. Frazier,
558 S.W.3d 145, 149 (Tenn. 2018), the Defendant argues that the warrant was void because
the trial court lacked jurisdiction to direct the service of the search warrant on AT&T in
North Palm Beach, Florida, for electronic records stored there. The Defendant further
contends that the warrant lacked a nexus between the records searched and the crime being
investigated.
The State responds that the trial court did not err by determining that the search
warrant was valid on its face. The State asserts that delivery of the warrant to a service
address in Florida simply complied with AT&T’s request to receive all warrants and
subpoenas in one location to facilitate its response. The State further argues that unlike
Frazier, where the “service address and the place to be searched were identical and beyond
the issuing court’s jurisdiction,” the address on the search warrant in this case was not
necessarily the place to be searched because the electronic records could have been
accessed in Knox County. We agree with the State.
Our standard of review for a trial court’s findings of fact and conclusions of law on
a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing
party in the trial court is afforded the ‘strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.’” State v.
Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864
(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the
law to the facts, without according any presumption of correctness to those conclusions.
See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295,
299 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence, and resolve any
conflicts in the evidence. Odom, 928 S.W.2d at 23. In reviewing a trial court’s ruling on
a motion to suppress, an appellate court may consider the evidence presented both at the
suppression hearing and at the subsequent trial. State v. Henning, 975 S.W.2d 290, 299
(Tenn. 1998).
The Fourth Amendment to the United States Constitution requires a search warrant
to contain a particular description of the items to be seized. See Henning, 975 S.W.2d at
296; see also U.S. Const. amend. IV. Furthermore, Article I, section 7 of the Tennessee
Constitution prohibits general warrants, and Tennessee Code Annotated section 40-6-103
requires search warrants to describe particularly the place and property to be searched.
State v. Bostic, 898 S.W.2d 242, 245 (Tenn. Crim. App. 1994); see also Tenn. Const. art.
I, § 7; T.C.A. § 40-6-103 (2018). To satisfy the particular description requirement, a
- 14 -
warrant “‘must enable the searcher to reasonably ascertain and identify the things which
are authorized to be seized.’” State v. Meeks, 867 S.W.2d 361, 372 (Tenn. Crim. App.
1993) (quoting United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981)); see also Henning,
975 S.W.2d at 296.
“Where the purpose of the search is to find specific property, [the
property] should be so particularly described as to preclude the possibility of
seizing any other [property]. . . . [I]f the purpose [of the warrant is to seize]
. . . any property of a specified character which, by reason of its character,
and of the place where and the circumstances under which it may be found,
if found at all, would be illicit, a description, save as to such character, place
and circumstances, would be unnecessary, and ordinarily impossible.”
Lea v. State, 181 S.W.2d 351, 352-53 (Tenn. 1944); see also Henning, 975 S.W.2d at 296.
For purposes of the Fourth Amendment, the search and seizure of places and things
implicate an individual’s reasonable expectation of privacy, while the seizure of property
occurs when there is “some meaningful interference with an individual’s possessory
interests in that property.” United States v. Jacobsen, 446 U.S. 109, 113 (1984).
In this case, the search warrant for the Defendant’s cell phone records for the
number ending in -0769 was sent to AT&T’s online service address for its “National Court
Order Compliance Section,” located in North Palm Beach, Florida.1 The search warrant
contained the following language concerning the records to be searched:
Proof by “Affidavit in support of search warrant,” which is specifically
incorporated by reference herein, having been made this day before me
that there is certain property, to wit: certain records of the above “Cellular
service provider” located at the “Cellular Service Provider Online Service
Address” all of which are accessed in the County of Knox, State of
Tennessee where there is probable cause to believe that the “Cellular
Service Provider” has in their possession or under their control said
records. Moreover, as set forth, there is probable cause to believe that
these records constitute evidence or tend to demonstrate that said
customer/subscriber participated in or holds evidence to the commission
of said violation.
YOU ARE THEREFORE COMMANDED to make a forthwith search of
records of the “Cellular Service Provider” located at the “Cellular Service
1
The State also obtained the same cell phone records pursuant to a subpoena duces tecum sent to
the address for AT&T in North Palm Beach, Florida, and a representative from ATT&T testified at trial
concerning the records. The Defendant filed a motion to quash the subpoena but the motion was abandoned
after the trial court denied the Defendant’s motion to suppress.
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Provider Online Service Address” for the “Subscriber/Customer Phone
Number” during the “Target Time Period.” These records are identified
more specifically as: account holder name; address; local and long
distance telephone connection records; records of session times and
durations; length of service (including start date) and types of service
utilized; telephone or instrument number or other subscriber number or
identity of both incoming calls; and means and source of payment for such
service; AND INCLUDING incoming and outgoing text message records
including specific and actual text content, Internet communication records
including specific and actual internet communication content, AND
cellular site relay information including tower usage and meter strength of
calls made on said telephone and/or Global Positioning System
coordinates for the dates listed above all evidencing a criminal violation
by said subscriber and if you find such property or any part thereof to bring
it before the Court ALONG WITH AN ACCOMPANYING AFFIDAVIT
ATTESTING TO THE AUTHENCITY OF SUCH RECORDS without
unnecessary delay.
The trial court made the following findings at the suppression hearing concerning the
search warrant:
[I]t would appear that search warrant was issued here in Knox County,
Tennessee, and the records were apparently lodged or were stored, or
whatever, in North Palm Beach, Florida. And I’m aware that a Trial
Court’s jurisdiction to compel anyone to turn over material or to comply
with a search warrant is limited to the geographic limitations of the State
of Tennessee.
However, what appears to be happening here is that these are - - these
communication providing businesses to do business here in - - in Knox
County, Tennessee, are in Tennessee and their presence is nationwide,
maybe global, I don’t know. And what they have in one place, they have
in all of their places. It’s not like we’re talking about specific pieces of
paper that can only be in one place or another. This is digital information,
which can be accessed from many different places.
So my interpretation of what happened is that the Court - -the Knox
County Judge issued an order to this business for them to turn over certain
records. And the company - -rather than challenge the Court’s authority,
the company is simply asking for the State to facilitate this process by
faxing the warrant to another state, after which they comply and send the
records to the - - to the state.
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So I don’t - - it would not appear that a Tennessee Judge is actually
compelling disclosure in Florida. It is simply the way the business has
asked for the matter - - for this process to occur, wherein a [S]tate of
Tennessee search warrant can be honored even though they digital - -
digitally stored materials may be in a different state. At any rate, I don’t
see that this is a search conducted in violation of the service provider’s
rights or the defendant’s rights. So the Court would deny the motion to
suppress on that ground.
....
Now, with regard to the nexus. It would appear that there was
information on the victim’s phone that the police looked at. And, of
course, there’s - - that, in no way, impacts any Constitutional right of the
defendant. They just - - they’re looking at the victim’s phone. And then
seeing the victim’s phone, they see that the victim made repeated calls to
a number that turned out to be the defendant’s phone. And from that, they,
based on their experience as law enforcement officers, believe that these
phone calls, happening in close temporal proximity close in time to the
crime itself, is a lead, a lead which is based on a probability that there’s
some connection between the attempted communication with the - - with
the defendant and the crime that, ultimately, the defendant had been
charged with.
This Court would find that there is probable cause to believe that the
fruits of the search would support a finding - - would support a conviction.
So the Court will deny the motion to suppress based on the lack of nexus.
And I understand it was the victim calling the defendant and not the
other way around, but it’s still evidence of a connection between the two.
And the court would find that does support the issuance of the warrant
The Stored Communications Act (“SCA”) was enacted as part of the Electronic
Communications Privacy Act of 1986, with the purpose of “protect[ing] the privacy of
users of electronic communications by criminalizing the unauthorized access of the
contents and transactional records of stored wire and electronic communications, while
providing an avenue for law enforcement entities to compel a provider of electronic
communication services to disclose the contents and records of electronic
communications.” In re United States for an Order Pursuant to 18 USC, 707 F.3d 283,
286-87 (4th Cir. 2013); 18 U.S.C. §§ 2701 et seq. Section 2703 (c) of the SCA provides:
- 17 -
(c) Records concerning electronic communication or remote computing
service –
(1) A governmental entity may require a provider of electronic
communication service or remote computing service to disclose
a record or other information pertaining to a subscriber to or
customer of such service (not including the contents of
communications) only when the governmental entity –
(A) obtains a warrant issued using the procedures described in the
Federal Rules of Criminal Procedure (or in the case of a State
Court, issued using State warrant procedures) . . . by a court
of competent jurisdiction;
(B) obtains a court order for such disclosure under subsection (d) of
this section;
(C) has the consent of subscriber or customer to such disclosure;
(D) submits a formal written request relevant to law enforcement
investigation concerning telemarketing fraud for the name,
address, and place of business of a subscriber or customer of
such provider, which subscriber or customer is engaged in
telemarketing (as such term is defined in section 2325 of this
title); or
(E) seeks information under paragraph (2).
18 U.S.C. § 2703(c) (emphasis added). A court of competent jurisdiction is defined by
Title 18 as, among other things, “a court of general criminal jurisdiction of a State
authorized by the law of that State to issue search warrants.” 18 U.S.C.A. § 2711. The
SCA does not provide for suppression of the evidence as an available remedy and states
that “[t]he remedies and sanctions described in this chapter are the only judicial remedies
and sanctions for nonconstitutional violations of this chapter.” 18 U.S.C. § 2708; United
States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014) (emphasis added). The SCA does not
specifically address whether a state court may authorize a search warrant for stored
- 18 -
electronic communications in another state, and Tennessee law does not authorize such a
procedure.2
The only case in Tennessee to address the issue of whether a trial court in Tennessee
may direct service of a search warrant for cell phone records stored in another state is
Christopher Lee Blunkall v. State, No. M2017-01038-CCA-R3-PC, 2019 WL 104136(Tenn. Crim. App., at Nashville, Jan. 4, 2019), perm. app. denied (April 11, 2019). In that
case, the petitioner argued that trial counsel was ineffective for failing to file a motion to
suppress text message communications between himself and the victim because the circuit
court judge had no jurisdiction or authority to issue a search warrant to Verizon for the
records located outside of Tennessee. Id. A panel of this court agreed with the post-
conviction court’s findings that even if the cell phone records were initially suppressed,
‘“the State could have obtained the records by other, proper means by the time the jury trial
was conducted.’” Id. at *25. This court held that the Petitioner failed to show prejudice
“even assuming, arguendo, that trial counsel had been deficient by not filing any motion to
suppress the text message communications based upon deficiencies in the warrant. Id. The
Petitioner further argued that the circuit court judge lacked jurisdiction to issue a subpoena
to Verizon for the subscriber information to his cell phone. This court found that the
Petitioner had not shown prejudice by establishing that there was a reasonable probability
that a suppression motion would have been successful. This court noted that the Petitioner
had not provided evidence at the post-conviction hearing that the subpoena was served to
a person located outside of Tennessee or that Verizon’s headquarters was located in New
Jersey. Id. at * 27. This court noted that any defect in the subpoena “if raised at the proper
time, could have been cured by the State.” Id. at *28. In regard to the Petitioner’s argument
that because the trial court lacked jurisdiction to issue the subpoena, the information was
obtained in violation of the SCA, this court observed that suppression was not a remedy
for a violation of the SCA. Id. at *28; see Guerrero, 768 F.3d at 358.
Under Tennessee law, a “search warrant” is defined as an “order in writing in the
name of the state, signed by a magistrate, directed to the sheriff, any constable, or any peace
officer . . . commanding the sheriff, constable[,] or peace officer to search for personal
property, and bring it before the magistrate.” T.C.A. § 40-6-101. “A search warrant can
only be issued on probable cause, supported by affidavit, naming or describing the person,
and particularly describing the property, and the place to be searched.” T.C.A. § 40-6-103.
“No law enforcement officer shall search, examine, extract or duplicate any cellular
telephone data, even if incident to a lawful arrest, unless . . . [t]he officer has obtained a
search warrant issued pursuant to this part or Rule 41 of the Tennessee Rules of Criminal
Procedure[.]” T.C.A. § 40-6-110(b)(1). Additionally, “[n]o cellular telephone data that is
2
HB1187/SB1592 amended Tennessee Code Annotated, Title 39 and Title 40, relative to criminal
procedure to authorize law enforcement officers, district attorneys general, and the attorney general “to
seek criminal process for the production of wire and electronic communications and transaction records
pertaining to the communications” and “sets guidelines for the service of and compliance with the criminal
process.”
- 19 -
obtained in violation of this section may be used in any court of law or administrative board
as evidence, nor may other evidence that is derived from the illegally obtained data be used
as evidence in any such proceeding.” Id. § 40-6-110(c). “A magistrate with jurisdiction in
the county where the property sought is located may issue a search warrant[.]” Tenn. R.
Crim. P. 41(a). Circuit court judges may function as magistrates for the purpose of issuing
a search warrant. T.C.A. § 17-1-103(b) (2009).
In Frazier, which the Defendant relies on in support of his argument that the trial
court did not have jurisdiction to issue the warrant in this case, a judge of the 23rd Judicial
District of Tennessee issued search warrants for property located in the 19th Judicial
District. Our supreme court held that “in the absence of interchange, designation,
appointment, or other lawful means, a circuit court judge in Tennessee lacks jurisdiction to
issue search warrants for property located outside the judge’s statutorily assigned judicial
district.” Frazier, 558 S.W.3d at 146; see also United States v. Master, 614 F.3d 236, 241
(6th Cir. 2010) (general sessions judge in Franklin County, Tennessee, had no authority to
authorize a warrant for the search of the defendant’s property in Coffee County,
Tennessee).3
In our view, this case is distinguishable from Frazier. In this case, we agree with
the State’s argument and the trial court’s findings that the warrant is facially valid because
the address listed on the search warrant was simply a service address and that the trial court
had jurisdiction to issue the warrant because the electronic records could be accessed in
Knox County, Tennessee. The affidavit seeking to establish probable cause for a search
warrant must demonstrate a nexus between the criminal activity, the place to be searched,
and the items to be seized. State v. Smith, 868 S.W.2d 561 (Tenn. 1993). We agree with
the trial court that the affidavit provided a “substantial basis” for finding probable cause.
The evidence of the victim’s communication with the Defendant’s phone number
immediately before the murder established a nexus between those communications and the
murder.
Additionally, we find that if any error occurred in admitting the Defendant’s cell
phone records at trial, the error was harmless beyond a reasonable doubt. Even without
the phone records, the proof at trial of the Defendant’s guilt was overwhelming. The
victim’s wife testified that the Defendant, whom she knew as “T,” and the victim knew
each other, and the victim bought pain pills from the Defendant. Text messages from the
victim’s phone, to which law enforcement officers had lawful access, showed that he and
someone identifying themselves as “T” exchanged text messages immediately before the
victim’s murder, and the two agreed to meet at the Red Roof Inn in order for the victim to
3
We note that our Legislature recently added a second sentence to Tennessee Code
Annotated section 40-1-106, which stated: “The judges of chancery and circuit courts have
statewide jurisdiction to issue search warrants pursuant to chapter 6, part 1 of this title in any
district.” See 2019 Pub. Acts, c. 486, § 14, eff. July 1, 2019.
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purchase pain pills from the Defendant. The Defendant listed his phone number ending in
-0769 on a contract for the purchase of a vehicle at C&C Motor Company, and he had the
cell phone number associated with -0769 in his possession at the time of his arrest. Tim
Wells identified the Defendant, whom he knew by another name, as being in Knoxville on
the day of the murder and as the person in the surveillance video who shot the victim.
Lieutenant Reyda further identified the Defendant as the person seen in the surveillance
video. The Defendant’s fingerprint was also found on a receipt in the victim’s van. A
receipt from the Red Roof Inn showed that the Defendant had stayed at the motel in the
past, and it listed the Defendant’s address in Michigan. Therefore, any error in the denial
of the motion to suppress the cell phone records was harmless beyond a reasonable doubt.
The Defendant is not entitled to relief on this issue.
C. Volume Complaint by a Juror
The Defendant asserts that he was denied the right to a unanimous jury verdict
because one of the jurors indicated that she was having trouble hearing the testimony. He
further argues that the trial court erred by preventing him from making an offer of proof
concerning the issue. The State responds that the issue is waived, and if not waived, the
trial court appropriately responded to the juror’s complaint.
After six witnesses had testified at trial, defense counsel notified the trial court of
the following: “We’re informed that, perhaps, juror number [nine] - - we were asked to
speak up if juror number [nine]’s having difficulty hearing, which concerns me because
this isn’t an A misdemeanor shoplifting. It’s a first-degree murder case.” Defense counsel
then suggested that the juror be brought in to determine how much of the trial she had not
heard. The following exchange occurred:
THE COURT: Well, there’s a - - there could be a lot of reasons to
suspect that, for one reason or another, a juror has not fully - - been able
to fully understand everything that’s been said in the trial. Sometimes the
matters that we talk about lack a good bit of that jargon about the cell
phones and the way they worked and what information they capture and
all that sort of thing. If you gave the jury a test to see how much of that
they absorbed, it might be remarkably low.
I don’t think the Court’s going to start engaging and going back to check
upon the jurors and see if they adequately understood the testimony that’s
been given. Both sides had a chance to voir dire everybody who’s on the
jury, ask them questions, make sure they could hear and understand the
spoken language. That’s about the best we can do.
Now, I’m going to begin asking the witnesses to speak up. I’ll ask counsel
to speak up. Everyone try to keep your voice up. And we will try to make
- 21 -
sure we get the testimony to the jurors. But I think it’s a very dangerous,
slippery slope to start going backward in time and trying to check up on
the jury to see - - to see if they have adequately absorbed the information
that’s been imparted from the stand.
I understand it’s very serious, but there’s no - -
[Defense Counsel]: Well, Your Honor - -
THE COURT: there’s no procedure set forth in the Rules of
Criminal Procedure about doing this kind of thing. And I don’t want to -
- I don’t want to open Pandora’s box here.
[Defense Counsel]: Well, Your Honor, I just want to make a record
here. This isn’t my hunch or suspicion. Officer Miller came into the
courtroom and said, juror number [nine] says, y’all need to speak up.
THE COURT: I understand that.
[Defense Counsel]: At which point I said, has she stated that she
couldn’t hear us? And Officer Miller indicated, yes, she stated she
couldn’t hear us.
THE COURT: I understand.
[Defense Counsel]: So this isn’t an unsubstantiated suspicion on my
part. I wouldn’t ask you to bring a juror - -
THE COURT: I understand that. I don’t doubt for a minute
that she and possibly other jurors have trouble hearing, and some may
have trouble understanding everything, and some may have trouble
understanding everything they do hear. And this is intrinsic in human life.
All we can do is try to make sure we get the information loud enough for
a person of ordinary ability to hear it.
I don’t doubt for a minute that she and, perhaps, others have failed to hear
some parts of the testimony. We had one - - we had one trial where one
guy kept nodding off, just flat going to sleep.
[Defense Counsel]: I would have moved for a mistrial. That’s not
a - - that’s not an independent juror at that point.
- 22 -
THE COURT: I understand that. As you - - as you well know,
there’s nothing in the Rules of Criminal Procedure that tell the Court
exactly what it should do.
[Defense Counsel]: I understand that. But, Your Honor, I have been
in courtrooms, as have the General, no doubt, as have you, where there’s
been an allegation that somebody had contact with a juror and that juror’s
been brought in and been questioned. I know that’s happened in Division
I. I was in the courtroom when it happened, so . . . I do have to make a
record here, Your Honor. I understand there’s no rule for it, but - -
....
THE COURT: - - if you’re talking about a jury being - - what
would you call it? - - poisoned by outside information relevant - - you
know, having to do with the case, that’s a different kind of matter. Jury
tampering is certainly something we do recognize. But just - - just
ordinary process of aging, some people don’t hear as well as others, that’s
just a fact of life.
And we voir dire. Everybody gets a chance to be satisfied that a juror can
- - can serve as a juror. And if not, you can ask the Court to excuse them
for cause. But I don’t think there’s anything to be gained by questioning
this woman about what she thinks she heard or what she thinks she didn’t
hear.
[Defense Counsel]: I understand, Your Honor. I would just make
one last point, that juror number [one] was actually questioned by the
State, do we need to speak up? Can you hear okay? And her response
was, yes, I can hear you fine.
THE COURT: I’ll be doing that. I’ll be checking with the jury.
There’s nothing wrong with the Court during - - during the process of the
trial to inquire and make sure the people can hear what’s being said.
[Defense Counsel]: Yes, Your Honor.
THE COURT: That’s the best the Court can figure out to do.
[Defense Counsel]: Your Honor, if we - - if your ruling is we cannot
determine whether or not juror number [nine] has missed substantial
portions of this trial due to her hearing, which she responds in voir dire
she had no problem with, so there’s no need to further voir dire her, I took
- 23 -
her at her word that she could hear fine. So there was no need to further
voir dire her on that issue.
If the ruling is we cannot determine if she’s missed substantial portions of
this murder trial, I have to ask for a mistrial, Your Honor.
THE COURT: I understand.
[Defense Counsel]: That’s my motion. I would - -
THE COURT: Does the State want to put anything on the
record about that?
[Defense Counsel]: - - greatly appreciate a ruling on that. Thank
you.
THE COURT: Certainly.
[The Prosecutor]: Yeah. I want to say again, at this point in time,
we do not know what, if anything, the juror has heard, what she has not
heard, if she has not heard anything. We don’t know what it is that she
said she’s having trouble hearing. Maybe it’s the lawyers. We don’t know
that there’s any proof in the record at this point in time whether or not she
has been unable to hear anything that the witnesses have said.
But, again, this is a situation where you’ve got to sit - - we just cannot
bring the jury - -the juror in here and inquire of the juror what, if anything,
she has heard. We just - - that - - I think that invades the province of the
jury.
Defense counsel then requested to call Officer Miller to the witness stand in order
to create a record concerning the issue. The trial court denied defense counsel’s request
and stated that it would not make any further inquiry into the matter. Defense counsel
asked to have the juror stay after trial “if there’s a verdict of guilt just so that we can inquire
how much of the trial she missed.” The trial court replied: “I’ll think about that. We’ll
consider - - continue to think about it.”
Initially, as argued by the State, we find that this issue is waived. Although the trial
court denied the Defendant’s request to question the juror during trial about whether she
had missed any testimony, the trial court indicated that it would consider having the juror
stay after trial for questioning about the matter. There is no evidence that the Defendant
requested any further questioning of the juror after trial nor did the Defendant present any
evidence concerning this issue at the hearing on the motion for new trial. Therefore, by
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“fail[ing] to take whatever action was reasonably available to prevent or nullify the harmful
effect” of the trial court’s denial of the Defendant’s request to question the juror during
trial, the Defendant has waived this issue. Tenn. R. App. P. 36(a). Moreover, the
Defendant has not demonstrated plain error because the trial court did not breach any clear
and unequivocal rule of law. See State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.
App. 1994); Tenn. R. App. P. 36(b).
In any event, “[t]he right to trial by jury is a fundamental right preserved by article
I, § 6 of the Tennessee Constitution and has ‘special resonance in criminal matters.’” State
v. Cleveland, 959 S.W.2d 548, 551 (Tenn.1997) (quoting Ricketts v. Carter, 918 S.W.2d
419, 424 (Tenn.1996)). The right to a unanimous verdict is included in the right to trial by
jury. Cleveland,959 S.W.2d at 551. Additionally, it “includes the right to have every fact
tried and determined by twelve jurors and to have all issues of fact submitted to the same
jury at the same time.” Id.; see also State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991).
According to Tennessee Code Annotated section 22-1-103(a) (2009):
Any person may be excused from serving as a juror if the prospective juror
has a mental or physical condition that causes that person to be incapable
of performing jury service. The juror, or the juror’s personal
representative, must provide the court with documentation from a
physician licensed to practice medicine, verifying that a mental or physical
condition renders the person unfit for jury service.
“Unless there has been clear abuse, the trial court’s discretion in determining the
qualifications of jurors is not subject to review.” State v. Mickens, 123 S.W.3d 355, 375
(Tenn. Crim. App. 2003) (citing Lindsey v. State, 225 S.W.2d 533, 538 (1949)).
In this case, there has been no clear abuse of discretion by the trial court in its
response to juror number nine’s complaint about not being able to hear. As pointed out by
the State, the trial court was not required to inquire into how much testimony a juror may
have missed at trial. See State v. Mark Anthony Foulk, No. E2007-00944-CCA-R3-CD,
2009 WL 47346, at *12 (Tenn. Crim. App., at Knoxville, Jan. 8, 2009) (Although the trial
court did not ask the juror whether she had missed any testimony of the four witnesses who
testified prior to her request for an amplifier, the juror’s “statements on the subject indicate,
at most that she had experienced some difficulty in hearing and wanted assistance”). The
record contains no suggestion that juror number nine had any difficulty hearing the
testimony after the trial court addressed the juror’s complaint. Id.; see also State v.
Raymond G. McCarter, No. E2004-01639-CCA-R3-CD, 2005 WL 1996633, at *4-5
(Tenn. Crim. App., at Knoxville, Aug. 18, 2005) (No showing in the record that the juror’s
hearing impairment made her incapable of performing her duties). Both the trial court and
the State repeatedly ensured that the jury could hear both the testimony and questioning.
In fact, the jurors notified the court officer later in the trial that they were having difficulty
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hearing defense counsel. The court officer informed the trial court: “I had three of them
say that they can’t hear him. He needs to talk louder or talk into the mic.” The trial court
then directed the officer to remind defense counsel to talk louder. The Defendant is not
entitled to relief on this issue.
D. Improper Prosecutorial Argument
The Defendant argues that the prosecutor’s closing rebuttal argument was an
improper comment on the Defendant’s refusal to testify and that the trial court erred by
overruling the Defendant’s objection to the argument. More specifically, the Defendant
contends that the prosecutor improperly addressed the Defendant in front of the jury and
stated that the Defendant was responsible for the victim’s death. The prosecutor further
said that the Defendant and his accomplice could have taken the victim’s property without
killing him because he was disabled. The State responds that the prosecutor’s rebuttal
argument was not improper and did nothing more than restate the evidence that had been
presented to the jury.
Our supreme court has consistently opined on prosecutorial misconduct regarding
closing arguments as follows:
The basic purpose of closing argument is to clarify the issues that must be
resolved in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008).
While “argument of counsel is a valuable privilege that should not be
unduly restricted,” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975),
“such [ ] arguments must be temperate, based upon the evidence
introduced at trial, relevant to the issues being tried, and not otherwise
improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn.
Crim. App. 2003); Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim.
App. 1995); see also State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn.
1999). Because closing argument affords an opportunity to persuade the
jury, 11 DAVID L. RAYBIN, TENNESSEE PRACTICE: CRIMINAL
PRACTICE AND PROCEDURE § 29.2, at 97 (2008), leeway should be
given regarding the style and substance of the argument. Banks, 271
S.W.3d at 131; State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998).
Hence, counsel may employ “forceful language in their closing
arguments, as long as they do not stray from the evidence and the
reasonable inferences to be drawn from the evidence.” Banks, 271 S.W.3d
at 131.
State v. Sexton, 368 S.W.3d 371, 418-19 (Tenn. 2012).
As explained by our supreme court in Sexton, there are five general areas of potential
prosecutorial misconduct related to closing argument:
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(1) It is unprofessional conduct for the prosecutor intentionally to misstate
the evidence or mislead the jury as to the inferences it may draw. (2) It is
unprofessional conduct for the prosecutor to express his personal belief or
opinion as to the truth or falsity of any testimony or evidence or guilt of
the defendant. (3) The prosecutor should not use arguments calculated to
inflame the passions or prejudices of the jury. (4) The prosecutor should
refrain from argument which would divert the jury from its duty to decide
the case on the evidence, by injecting issues broader than the guilt or
innocence of the accused under the controlling law, or by making
predictions of the consequences of the jury’s verdict. (5) It is
unprofessional conduct for a prosecutor to intentionally refer to or argue
facts outside the record unless the facts are matters of common public
knowledge.
Sexton, 368 S.W.3d at 419 (citing Goltz, 111 S.W.3d at 6 (citations omitted)); see also
AMERICAN BAR ASSOCIATION, STANDARDS RELATING TO THE PROSECUTION
FUNCTION AND THE DEFENSE FUNCTION §§ 5.8-5.9 (1970).
Our supreme court has also advised that a criminal conviction should not be lightly
overturned solely on the basis of the prosecutor’s closing argument. Banks, 271 S.W.3d at131 (citing United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d
411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument does not
automatically warrant reversal)). “An improper closing argument will not constitute
reversible error unless it is so inflammatory or improper that if affected the outcome of the
trial to the defendant’s prejudice.” Id. (citing State v. Thacker, 164 S.W.3d 208, 244 (Tenn.
2005); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn. 1998)); see also State v. Reid, 164
S.W.3d 286, 321 (Tenn. 2005).
The Fifth Amendment to the United States Constitution provides that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V. Similarly, article I, section 9 of the Tennessee Constitution provides that “in all
criminal prosecutions, the accused . . . shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. Both provisions guarantee criminal defendants the
unfettered right to remain silent and not testify at trial. Carter v. Kentucky, 450 U.S. 288,
305 (1981). Both provisions further prevent the State from commenting on the accused's
silence. Griffin v. California, 380 U.S. 609, 615 (1965); Jackson, 444 S.W.3d at 586. It is
possible, however, for the State to describe the proof as uncontradicted or make other
indirect references to the defendant’s silence without infringing on the defendant’s Fifth
Amendment rights, so long as the defendant is not the only person who could offer the
contradictory proof. Jackson, 444 S.W.3d at 586-87 (internal citation omitted).
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This court reviews the propriety of prosecutorial comments regarding the right to
remain silent under a de novo standard and applies the following two-prong test:
(1) whether the prosecutor’s manifest intent was to comment on
[the][d]efendant’s right not to testify; or (2) whether the prosecutor’s
remark was of such a character that the jury would necessarily have taken
it to be a comment on [the] [d]efendant’s decision not to testify.
Jackson, 444 S.W.3d at 588.
At trial, the Defendant began shaking his head during the prosecutor’s rebuttal
closing argument, and the prosecutor said: “You can shake your head all you want.” At
that point, defense counsel objected and this colloquy took place:
[The Prosecutor]: You, [the Defendant], you, sir, are responsible
for pulling out that gun, pointing that gun at [the victim] - - and that’s the
sad thing, is that y’all could have taken the property without killing the
man. He’s disabled. He couldn’t move. He was buckled in.
[Defense Counsel]: Your Honor, I would object again. The
Prosecutor is still addressing my client. The jury is that way.
[The Prosecutor]: I’m arguing - - explaining to the jury. He’s
shaking his head.
[The Court]: She can address. She cannot make the
defendant do or say anything, but she can address him as a part of her
argument.
[Defense Counsel]: My objection for the record is improper
prosecutorial misconduct.
[The Court]: Very well.
[The Prosecutor]: All you had to do was take his property. It’s
not like he was going to tell if you stole from him, all right, ‘cause in order
for him to tell, he’d have to tell on himself for being a dope dealer.
Didn’t have to shoot him in the back. He was trying to get away, but
he couldn’t. He didn’t have any animosity for [the Defendant]. You see
that in the text messages. He didn’t threaten to turn [the Defendant] in for
[the Defendant] selling him some bad pills. He didn’t threaten that. He
just wanted it to be made right.
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That’s what we ask you to do, come back and tell [the Defendant],
you, sir, are guilty of the felony murder of [the victim]. That you, sir, are
guilty of the especially aggravated robbery of [the victim].
In denying the Defendant’s motion for new trial on this issue, the trial court declined to
find any error in the above statements and further found that “if it is legal error, then I’m
ruling that it was harmless.” The trial court told the prosecutor it was “not the best practice”
to directly address a defendant who had chosen not to testify. The record reflects that the
prosecutor turned and directly addressed the Defendant in this case.
We conclude that the prosecutor’s statements during rebuttal closing argument were
improper. The purpose of a closing argument is to address the jury and the prosecutor
should not have addressed the Defendant directly, particularly because the Defendant had
chosen not to testify. The prosecutor’s comment was inappropriate, as was the Defendant
himself shaking his head in front of the jury during the prosecutor’s closing argument.
However, we agree with the trial court that any error was harmless. The proof against the
Defendant, which included surveillance video of the crimes, was overwhelming.
Moreover, the trial court instructed the jury that “the statements, arguments and remarks
of the attorneys are intended to help you in understanding and applying the law but they
are not evidence. You should disregard any statements made that you believe are not
supported by the evidence.”
The trial court further instructed the jury:
The [D]efendant has not taken the stand to testify as a witness, you shall
place no significance on this fact. The [D]efendant is presumed innocent
and the burden is on the state to prove his guilt beyond a reasonable doubt.
He is not required to take the stand in his own behalf, and his election not
to do so cannot be considered for any purpose against him, nor can any
inference be drawn from such fact.
It is presumed that the jury followed the trial court’s instructions. State v. Reid, 164 S.W.3d
286, 323 (Tenn. 2005). The Defendant is not entitled to relief on this issue.
E. Sufficiency of the Evidence
The Defendant contends that the evidence was insufficient to support his
convictions for felony murder in counts one, two, five, and six and especially aggravated
robbery in count seven because the “State failed to prove that anyone attempted to, or
succeeded in, illegally taking property from [the victim].” He further argues that the
evidence was insufficient to support his convictions for felony murder in counts three and
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four because the evidence did not prove that he or anyone that he was criminally
responsible for, entered the victim’s vehicle without consent. The State responds that the
evidence, based upon a theory of criminal responsibility, established that the Defendant
took the victim’s property and entered his vehicle without consent.
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. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme Court stated
the rationale for this rule:
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.
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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).
“A person is criminally responsible as a party to an offense, if the offense is
committed by the person’s own conduct, by the conduct of another for which the person is
criminally responsible, or by both.” T.C.A. § 39-11-401(a)(2018). An individual is
criminally responsible for the conduct of another person if, “[a]cting with intent to promote
or assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense[.]” Id. § 39-11-402(2). Under the theory of criminal responsibility, “an
individual’s presence and companionship with the perpetrator of a felony before and after
the commission of an offense are circumstances from which his or her participation in the
crime may be inferred.” State v. Watson, 227 S.W.3d 622, 639 (Tenn. Crim. App. 2006)
(citing State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998)). In this situation,
“[n]o particular act need be shown, and the defendant need not have taken a physical part
in the crime to be held criminally responsible.” Id. (citing Ball, 973 S.W.2d at 293). To
prove a defendant’s guilt under the theory of criminal responsibility, the State must
establish that the defendant “‘knowingly, voluntarily and with common intent unite[d] with
the principal offender[ ] in the commission of the crime.’” State v. Maxey, 898 S.W.2d
756, 757 (Tenn. Crim. App. 1994) (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn.
Crim. App. 1988)). Criminal responsibility for the actions of another person “requires that
a defendant act with a culpable mental state, specifically, the ‘intent to promote or assist
the commission of the offense or to benefit in the proceeds or results of the offense.’” State
v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997) (quoting T.C.A. § 39-11-402(2)). “A person
acts with intent as to the nature or result of conduct when it is that person’s conscious
objective or desire to engage in the conduct or cause the result.” Id. (citing T.C.A. § 39-
11-302(a); Maxey, 898 S.W.2d at 757).
Felony murder is defined as “[a] killing of another committed in the perpetration of
or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
kidnapping, aggravated child abuse or aircraft piracy.” T.C.A. § 39-13-202(a)(2). Robbery
is defined as “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” T.C.A. § 39-13-401(a). Especially aggravated
robbery is robbery accomplished with a deadly weapon and where the victim suffers
serious bodily injury. T.C.A. § 39-13-403(a). “A person commits burglary who, without
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the effective consent of the property owner: . . . (4)[e]nters any . . . passenger car,
automobile, or truck . . . with intent to commit a felony, theft or assault or commits or
attempts to commit a felony, theft or assault.” T.C.A. § 39-14-402(a)(4). A theft of
property occurs when someone, with the intent to deprive the owner of property, knowingly
obtains or exercises control over the property without the owner’s effective consent.
T.C.A. § 39-14-103(a). Criminal attempt is defined as occurring when a person “acting
with the kind of culpability otherwise required for the offense” engages in “an act or acts
in furtherance of the attempted crime.” T.C.A. § 39-12-101.
In this case, the Defendant was charged with felony murder in perpetration of an
attempted robbery in count one, felony murder in perpetration of a robbery in count two,
felony murder in the perpetration of an attempted theft in count five, felony murder in the
perpetration of a theft in count six, and especially aggravated robbery in count seven. The
Defendant argues that the evidence as to those counts was insufficient to show that he
attempted to or succeeded in taking the victim’s property. However, viewed in the light
most favorable to the State, the proof established that, under a theory of criminal
responsibility, the Defendant took the victim’s property. Text messages exchanged
between the Defendant and the victim prior to the murder established that the victim
intended to purchase pain pills from the Defendant with a purchase price of $4,140. The
surveillance video from the Red Roof Inn clearly showed the Defendant’s accomplice leave
the victim’s van with a white envelope in his hand after the Defendant fatally shot the
victim. The police found $140 in the victim’s pocket when they arrived on the scene and
two white envelopes each containing $1,000 in $100 bills for a total of $2,140 in the
victim’s van. The keys to the victim’s van were never found.
From this evidence, a jury could reasonably infer that the Defendant and his
accomplice took the victim’s keys and the remaining $2,000 of the purchase price of the
drugs from the victim. See State v. Michael Rimmer, No. W2017-00504-CCA-R3-DD,
2019 WL 2208471, at *4 (Tenn. Crim. App., at Jackson, May 21, 2019) (evidence
establishing that $600 and several sets of bed sheets missing from the crime scene, a motel
office, was sufficient to support the defendant’s convictions for felony murder and
aggravated robbery), aff’d, 623 S.W.3d 235 (Apr. 16, 2021), rehearing denied, (May 21,
2021). The State presented sufficient evidence from which a jury could conclude that the
Defendant committed the offenses of felony murder in counts one, two, five, and six and
especially aggravated robbery in count seven. The Defendant is not entitled to relief on
this issue.
The Defendant was charged with felony murder in the perpetration of an attempted
burglary in count three and felony murder in the perpetration of a burglary in count four.
The Defendant contends that the evidence as to those two counts was insufficient to show
that he or anyone that he was criminally responsible for entered the victim’s vehicle
without the victim’s consent. Viewed in a light most favorable to the State, the proof
established that the Defendant’s accomplice entered the victim’s van after the Defendant
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shot the victim multiple times and took a white envelope. Although it appears that the
Defendant and his accomplice had consent to initially enter the victim’s van, a jury could
infer that the Defendant’s accomplice did not have consent to reenter the victim’s van to
take the envelope as the victim was dying after the Defendant shot him multiple times.
Accordingly, we conclude that there was sufficient evidence to support the jury's finding,
beyond a reasonable doubt, that the Defendant committed the offense of felony murder in
counts three and four. The Defendant is not entitled to relief as to this issue.
II. Conclusion
Based on the foregoing reasoning and authorities, we affirm the trial court’s judgments.
____________________________________
ROBERT W. WEDEMEYER, JUDGE
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