Court of Criminal Appeals of Tennessee, Knoxville
Session Date April 22, 2014
Appeal from the Criminal Court for Sullivan County Nos. S59, 974; S60, 181; S60, 182 Robert H. Montgomery, Judge
Ricky A.W. Curtis (on appeal), Blountville, Tennessee, for the appellant, Michael L. Hufford; Michael L. Hufford (at trial), Blountville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Barry Staubus, District Attorney General; and Leslie A. Foglia, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Thomas T. Woodall and Alan E. Glenn, JJ., joined.
ROGER A. PAGE, JUDGE
This case involves harassment of two real estate agents in Kingsport, Tennessee, and appellant's driving with a suspended or revoked license, possession of marijuana, and possession of drug paraphernalia.
I. Facts and Procedural History
A. Procedural History
The record reflects that appellant was charged with 122 counts of harassment of Melanie Jennings and eighty-six counts of harassment of Shelby Bass that occurred over a span of several months in 2010. As officers approached appellant's residence to serve the arrest warrant, they witnessed him operating a motor vehicle, and he was later charged with driving on a revoked or suspended license. Also, while arresting appellant on the harassment warrant, officers found marijuana and drug paraphernalia in his possession. Accordingly, appellant was indicted on April 10, 2012, for those three offenses.
On May 24, 2011, appellant was found guilty on all counts of harassment in general sessions court. He appealed the verdicts, and the criminal court remanded the case for "retrial on the merits." Appellant, represented by an assistant district public defender, waived his right to a preliminary hearing, and the case was bound over to the grand jury. Appellant also requested a jury trial. On January 31, 2012, the grand jury returned indictments charging appellant with six counts of harassment of Ms. Jennings and five counts of harassment of Ms. Bass.
The trial court appointed counsel to represent appellant. However, on February 28, 2012, appellant filed a request to proceed pro se, stating that he did not want or need a lawyer. He subsequently executed a "Waiver of Counsel" on March 9, 2012.
B. Facts from Harassment Trial
Appellant's trial on the charges of harassment began on May 7, 2012. The State's first witness was Shelby Bass, a realtor in Kingsport, Tennessee. In July 2010, Ms. Bass's business advertisements contained a photograph of her and her cellular telephone number. She indicated that it was very uncommon for clients or any of her family members to telephone her at midnight or 1:00 a.m.
Ms. Bass recalled that on July 4, 2010, she attended a downtown festival with her family and that she received repeated telephone calls from an unknown number. Each time she answered the telephone, she heard a male voice that she estimated to be "middle age." She said, "Sometimes the voices would just be heavy breathing, noises in the background . . . [S]ometimes this person would say things such as[, ] 'Are your nipples hard, I'm masturbating, ' nasty stuff." When she hung up the telephone, the male would immediately call back, and she would hear "heavy breathing and noises . . . like someone masturbating." The number that appeared on Ms. Bass's caller ID read "unknown" or "private." She received such telephone calls at "random" times of the day and night, with "no rhyme or reason as to what time." Some calls were placed at 3:00 or 4:00 a.m. She reported the calls to law enforcement. Pursuant to the investigation, Ms. Bass's cellular telephone records from Verizon Wireless were obtained and admitted into evidence at trial.
Ms. Bass stated that the telephone calls at first made her feel "annoyed" and aggravated and then later, frightened. The calls impacted her work because she feared that "some strange person calling [her] on the phone could be wanting to set up an appointment to see a vacant home . . . and then [she] ends up getting killed." Ms. Bass heard appellant speak at trial and identified his voice as being the voice of the caller.
Melanie Jennings, previously a realtor in Kingsport, then testified that in March 2010, she began receiving telephone calls on her cellular telephone "in the middle of the night from blocked numbers." She could hear the caller "masturbating, breathing very, very hard[, ] and [she] would hang up." The caller would immediately call back. When Ms. Jennings asked the caller to refrain from calling her further, he would say, "'It will only take a minute.'" She described the voice of the caller as "young." She recalled that he would always ask, "'Are your nipples hard[?]'" Ms. Jennings then described in depth what she heard that made her believe that the caller was masturbating. She eventually reported the calls to law enforcement.
Ms. Jennings stated that when the calls "first started[, ] it was just very annoying[, ] but then when it kept going and kept going[, ] [she] truly became frightened, literally scared to death." She said that when the telephone calls began, she was unable to identify the caller's voice; however, during the course of the proceedings, she heard appellant's voice and recognized that it was the caller's "voice without a doubt." She also recalled that one day in late 2010, appellant walked in to her office and requested a real estate magazine and information about property in Virginia. After appellant was arrested, she saw a photograph of him and realized he had previously come into her office. Through law enforcement's investigation, she learned that the calls from the blocked telephone numbers had originated from appellant's telephone.
Detective Monica Swayze with the Kingsport Police Department testified that she investigated the complaints of telephone harassment made by Ms. Bass and Ms. Jennings. In the course of her investigation, Detective Swayze obtained telephone records for both victims. She identified two common telephone numbers from each set of records. One of the numbers corresponded to a "land line" located at a Virginia Street address in Kingsport, appellant's residence. She also traced a cellular telephone to appellant, who called Detective Swayze from the cellular telephone in question. Moreover, appellant listed both telephone numbers and his home address on his affidavit of indigency, which was admitted as an exhibit at trial. Detective Swayze stated that when she spoke with appellant's wife, she confirmed that she and appellant were the only two individuals who lived at that address. Neither victim received a harassing telephone call after appellant was arrested.
Appellant rested without presenting any proof. Based upon this evidence, the jury found appellant guilty on all eleven counts of harassment on May 7, 2012. After the jury was dismissed, the trial court arraigned appellant on the charges of possession of marijuana, possession of drug paraphernalia, and driving on a suspended or revoked license. The State advised the trial court that the affiant on those cases, Officer Mark Johnson, was preparing to be deployed and would be unavailable after May 2012. The State requested two days to contact the officer and confirm his deployment date so a trial date could be set. Appellant affirmed that he still planned to represent himself and still wanted a jury trial. The record indicates that the parties were to be in court on May 10, 2012; however, a transcript of that hearing, if it was held as scheduled, is not included in the record. Nonetheless, based on the date of appellant's trial, we glean that the parties agreed on a trial date and proceeded as anticipated.
C. Facts from Trial on Possession of Marijuana, Drug Paraphernalia, and Driving on a Suspended or Revoked License
Prior to the beginning of the May 21, 2012 trial, appellant, who was again representing himself, requested a thirty-day continuance during which to hire an attorney. The trial court indicated that it would grant appellant's request; however, the court would increase appellant's bond in light of his recent convictions and his being a flight risk. Appellant revoked his request for an attorney, stating, "No, I don't want to do that, Your Honor. . . . Let's go ahead and have the trial. I don't want my bond getting increased. I don't have the money to bond myself out, Your Honor. Let's just go ahead and have the trial. That's fine." The trial court confirmed appellant's wishes by explaining, "I don't [want] to force anybody to go to trial. . . . [Y]ou've asserted all along that you want a speedy trial. You've asserted all along that you do not want a lawyer. I've tried to give you advisory counsel. . . . Do you want me to see if I can find you advisory counsel for your trial today?" Appellant declined the trial court's offer and reaffirmed his desire to "proceed without one."
After several more minutes of discussion regarding evidentiary matters, appellant again asked, "So if I ask for a lawyer[, ] you'll just raise my bond?" The trial court responded, "I have done everything in my power to get you to have a lawyer, okay, but on [the] day of trial when you're all of a sudden with a trial pending asking me for a [lawyer][, ] I find that you're doing it just for the purposes of delay." Further, the court continued, "[A]nd when I find somebody is doing something for purposes of delay[, ] then I feel that it's something I should do, is to take a look at your bond." The trial court also intimated that appellant would pose a flight risk based on his eleven prior misdemeanor convictions for which he had not yet been sentenced. The trial court explained that it had given appellant two weeks to obtain an attorney and that appellant had refused each time the court had inquired whether he wished to have an attorney. As such, the case proceeded to trial with appellant acting pro se.
The State's first witness was Officer Mark Johnson with the Kingsport Police Department. He testified that he was directed to serve an arrest warrant on appellant on November 4, 2010, at appellant's home. As he was arresting appellant, appellant asked if he could give his wife his medication. As Officer Johnson was about to say, "No, " appellant's wife reached into his pocket and removed a medicine bottle. Officer Johnson noticed that there was "another baggie" inside of the bottle, so he retrieved the bottle from appellant's wife and looked inside of it. He observed a substance that he thought to be marijuana. He also observed "loose rolling papers" in the bottle. Officer Johnson stated that he then searched appellant and located a "brass-colored pipe" that he believed, based on his experience, was used to smoke marijuana. The bowl of the pipe smelled of ...