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State v. Phifer

Court of Criminal Appeals of Tennessee, Nashville

September 23, 2014

STATE OF TENNESSEE
v.
JERRY BRANDON PHIFER

Session May 13, 2014

Appeal from the Criminal Court for Davidson County No. 2011B1782 Cheryl A. Blackburn, Judge

Jim Todd, Nashville, Tennessee, for the appellant, Jerry Brandon Phifer.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thorton, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

John Everett Williams, J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and Roger A. Page, JJ., joined.

OPINION

John Everett Williams, Judge

Facts and Procedural History

A Davidson County grand jury indicted the defendant for aggravated robbery, five counts of aggravated burglary, five counts of theft of property, and possession of a deadly weapon other than a firearm during the commission of a dangerous felony. The trial court granted the defendant's motion to sever, and an amended indictment was issued charging the defendant with one count of aggravated robbery and one count of aggravated burglary.

The defendant filed a motion to suppress his statements to police, arguing that he was unlawfully arrested, that his waiver of his Miranda rights was a product of police coercion, that his waiver was not knowing and voluntary, and that his waiver was not sufficiently attenuated from the taint of the unlawful arrest. At the motion to suppress hearing, Detective Robert Shotwell of the Metropolitan Police Department testified that his precinct saw a large rise in burglaries during the first three months of 2011. Several weeks prior to the defendant's arrest, Betty Bower called to report that a white male came to her door and knocked on it. When Ms. Bower opened the door, she saw that the man had socks on his hands, and he asked for someone who did not live there. Ms. Bower informed him that the person did not live there, and the man departed. Officers did not respond immediately to Ms. Bower's call but were able to follow up and speak with Ms. Bower before the defendant's arrest. Detective Shotwell testified that he was unsure of the exact date that his office received information about Ms. Bower's report but was sure that it was before the date of the defendant's arrest.

Ms. Bower told her neighbor, Daniel Osborne, about the incident. Mr. Osborne was able to tell police about a "beige or gold" 2000 Cadillac with the license plate number 889 PZW, and police assumed that the car belonged to the man Ms. Bower described. Officer Joe Cadden later spotted the vehicle and observed the defendant lying on the bench-style front seat with his "feet out the window in the passenger's side." Officer Cadden could not see any part of the defendant's upper body, and he decided to stop the vehicle based upon his suspicion that the defendant was in violation of the seat belt law. Officer Cadden believed that it would have been impossible for a person to sit in the same manner as the defendant while properly wearing a seat belt. Officer Cadden could not recall whether the defendant fastened his seatbelt once the vehicle was stopped. Officer Cadden implied that the defendant was wearing the seatbelt improperly because the belt was not visible across the defendant's chest. Officer Cadden did not issue a ticket for a seat belt violation, and he wrote in his report that he stopped the vehicle because the defendant had "both legs from the knee down hanging outside of the vehicle['s] right front window." The report made no mention of a seatbelt violation.

The driver of the vehicle was Tina Stewart, the defendant's girlfriend. Ms. Stewart consented to a search of the vehicle, and the defendant told officers that his home address was 212 Cedarview Drive in Antioch, Tennessee.[1] Officer Cadden found two flashlights, two screwdrivers, Xbox games, one GPS, four jewelry boxes with fifty pieces of jewelry, two cell phones in addition to the phones belonging to Ms. Stewart and the defendant, a blue latex glove, blue cloth gloves, and empty trash bags. Officer Cadden could not find a reason to charge the defendant with a criminal offense, so he made a report that was forwarded to detectives. Detective Shotwell discovered this report on the day before the defendant's arrest.

Detective Shotwell stated that there was a burglary at the address of 1842 Shaylin Loop, where Katie Piper, a neighbor of the victim, observed two suspects: a white male, described as "[e]ighteen to 23, 5'8", 120, blonde or strawberry hair, eyes unknown, wearing a black hat, black T-shirt and blue jeans, " and a white female, "18 to 22, 5'6", red or auburn hair, unknown eyes, white tank top[.]" Ms. Piper saw both suspects in a gold Cadillac with a license plate that started with the letters "VFN." Ms. Piper witnessed both suspects participate in the burglary, and she observed the partial license plate from across the street. She took a photograph of the vehicle with her cell phone and sent it to Detective Shotwell. Detective Shotwell testified that the Cadillac in the photograph had tinted windows and specialty rims. Ms. Piper later identified Ms. Stewart from a photograph lineup as the driver of the vehicle.

On April 14, 2011, a burglary occurred at 675 Harding Place. Jongho Lim was asleep in his aunt's apartment when a suspect entered the apartment with a knife and demanded jewelry and "whatnot." Mr. Lim described his assailant as a white male aged "27 to 35, 5'9", 180, unknown hair and eyes, clean shaven, red and gray ballcap and t shirt, blue jeans." During this incident, a neighbor, Andrew George, saw a bronze, four-door Cadillac Deville with darkly-tinted windows and expensive-looking rims. Detective Shotwell testified that a photograph lineup was prepared and shown to the victim and that the defendant was not chosen from the lineup.

On that same day, there was a burglary at 4936 Salem Drive, where Tiffany Fykes observed the suspect and his vehicle. She described the suspect as a white male, "unknown in ethnicity, 30 or 35, 6'0", 200 pounds, unknown hair, unknown eyes, and unknown scars, wearing a white ball cap, a red shirt, " in a tan, four-door Cadillac Deville.

By this date, the defendant had come to Detective Shotwell's attention as a primary suspect in the burglaries. Detective Shotwell was aware that the defendant had a prior criminal record consisting of four aggravated burglaries and several other felonies and that the defendant was on probation.

The defendant was arrested on April 15, 2011. The night before the defendant's arrest, police officers placed a Global Positioning Satellite ("GPS") tracking device on the defendant's Cadillac while it was parked at an apartment complex. Officers did not have a warrant to use the GPS tracking device. Detective Shotwell testified that officers were confident that the defendant was the individual who was responsible for the recent burglaries when they placed the GPS device on the defendant's car.

Detective Shotwell testified that locating the vehicle at 808 Ilawood Court was "absolutely" facilitated by information from the GPS tracking device. He agreed that the GPS device alerted officers to the defendant's location, and an officer was able to drive by the residence and observe the vehicle parked in the grass of the front yard of 808 Ilawood Court.

On cross-examination, he testified that officers drove their vehicles through the neighborhood and crossed paths with the defendant when the defendant began to move throughout the neighborhood. He stated that Detective Keller spotted the defendant "at the corner of Ilawood and Ilawood Court" and that Detective Keller "also was able to swing around and see the car in front." He admitted that officers could have been watching the GPS device at the time but was unsure whether anyone was. He agreed that the GPS device "assisted" officers in locating the vehicle at the Ilawood address, and then officers were dispatched to the residence.

A few moments later, officers noticed that the vehicle was no longer at the Ilawood residence. Detective Shotwell estimated that "two or three minutes" could have elapsed before officers realized the vehicle was gone. Detective Shotwell then approached the residence and noticed that "[t]he front door was busted in and the house had been ransacked." He testified that around eight officers were "in and around the neighborhood" and that none of them could see the defendant's residence from their surveillance points. The car was discovered at the defendant's residence a short time later. Detective Shotwell stated that he knew that Detective Keller went to the defendant's residence and that officers knew that the defendant's vehicle was at his residence. He was unsure whether the GPS device was being used at the same time that Detective Keller observed the vehicle in the defendant's driveway or if the discovery was made solely due to Detective Keller's visual observation.

Detective Shotwell testified that the defendant's address was "as a crow flies maybe a quarter mile" from the Ilawood address. Detective Shotwell was in a vehicle with Sergeant Meadow and Detective Traughber, and they proceeded to the defendant's residence knowing only that the vehicle from the Ilawood robbery was in the defendant's driveway. They spotted the defendant walking on the street and initially passed the defendant because the officers "were kind of dumbfounded, like he is walking down the street." The officers then turned around and stopped the defendant.

The defendant told the officers that he had been out smoking and walking around the neighborhood. When officers asked him for identification, the defendant produced a Tennessee driver's license that belonged to another individual. The defendant was then arrested after he was told that there was a warrant for his arrest due to a failure to appear. Detective Shotwell admitted that the defendant did not have an outstanding warrant. The defendant did not make any admissions about the burglaries at that point, and Detective Shotwell estimated that the defendant was arrested "two or three minutes" after officers began talking to him.

Detective Shotwell then proceeded to the defendant's address. He confirmed that the address was the same one that the defendant provided to Officer Cadden during the traffic stop for the seatbelt violation. The Cadillac was parked in the driveway, and Detective Shotwell noticed that the wheels and wheel wells of the vehicle had grass "from Ilawood from the front yard where it spun." As he approached the vehicle, Detective Shotwell observed jewelry lying in the grass between the residence and the vehicle. He photographed the jewelry and sent the photograph to an officer who was at the Ilawood residence. The officer showed the victim the photograph, and the victim identified the jewelry as property taken during the burglary.

Detective Shotwell testified that because he was aware that the vehicle had just left the scene of the burglary, he considered the defendant "an 'A' No. 1 prime suspect[.]" Officers linked the defendant to the Cadillac based upon the prior traffic stop, the fact that Ms. Stewart was identified as the driver at the Shaylin Loop burglary, and because officers knew that Ms. Stewart was the defendant's girlfriend. Detective Shotwell stated that police "had a pretty good indication that [the gold Cadillac] was [the defendant's] car."

The defendant testified that detectives informed him that he had a warrant for his arrest based upon a failure to appear. He gave officers a fake identification because he believed that he had an outstanding warrant from North Carolina. A patrol car was called to the scene, and the defendant was placed in the back of the car. He then asked officers to take him to jail, and the officers replied that they were taking him to the South Precinct. The defendant estimated that fifteen minutes elapsed from the time when he was placed in custody to the time when he arrived at the South Precinct. He was placed in a holding cell for "30 to 45 minutes" and then was taken to "an isolated room with a table and numerous chairs." Prior to arriving in the room, the defendant was not questioned by anyone and did not make any statements. The defendant repeatedly told detectives that he did not have an outstanding warrant for failure to appear.

Detective 1: I can tell by talking with you that you're nervous about something.
Defendant: I am not nervous. I am pissed off. I thought I had a child support warrant. I'm not going to lie to you. My baby mama went to Court like two weeks ago and-she went to court and they're coming to get me.
Defendant: When the cop came up, I thought this is it, but they say it was a misdemeanor failure to appear. But I didn't get served no papers for me to go to court for child support,
Detective 1: So, it was a misdemeanor? Failure to appear?
Defendant: That's what the cops said. But, I didn't even have papers for me to go to court. But, just my baby's mama saying they're coming to get you, I am assuming they are coming to get me, but that wouldn't be a failure to appear. They say it's failure to appear, but I ain't been in no trouble to have a failure to appear to even go to anything.
[. . . . [D]iscussion about Defendant's medication Roxycontin and Xanax. Detective 1 notes that the defendant's hands are a little shaky.]
Defendant: They said a burglary or robbery or something happened like right down the street or wherever the hell it was. I'm walking around my neighborhood three different times.
Detective 1: I'm going to read this upside down to you. This is the official, official, official, official, formal rights waiver, okay?
Defendant: hmm mm.
Detective 1: Is there a reason- -
Defendant: Are you pretty much threatening me if I don't talk to you, you are going to arrest me for something is that it?
Detective 1: Uh, I am not sure what charges you have on you. I came in on tail end of this.
Defendant: You're telling me—
Detective 1: You are under arrest. You were in handcuffs. You are under arrest, okay.
Defendant: For a failure to appear? I don't have no failure to appear[.]
Detective 1: [looks to Detective 2]. I'm going to tell him this I don't know.
Defendant: I have no failure to appear. I wouldn't have a failure to appear to have a failure to appear. I wouldn't have a court date to have that.
Detective 1: Let me ask you this. This first question—
Defendant: I just want—
Detective 1: [reading from form] Is there a reason to believe that the interviewee is intoxicated by alcohol or drugs.
Defendant: I'm on Roxy—
Detective 1: Are you intoxicated?
Defendant: No. I'm on medication if you call that intoxicated.
Detective 1: I mean I don't but I am asking you.
Defendant: I don't feel intoxicated.
Detective 1: You understand what we are talking about—that you are not off in la la land going "I don't know where I am at."
Defendant: I'm not f***** up.
Detective 1: Okay.
Defendant: What I am asking you, you asking me questions. What are you talking about if I don't talk to you you're going to arrest me?
Detective 1: You are under ...

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