Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2014
Appeal from the Circuit Court for Sumner County No. 2010CR820 Dee David Gay, Judge
SHARLINA PYE-MACK, HENDERSONVILLE, TENNESSEE, FOR THE APPELLANT, ANTONIO LAMONT FREEMAN.
ROBERT E. COOPER, JR., ATTORNEY GENERAL AND REPORTER; BRENT C. CHERRY, SENIOR COUNSEL; L. RAY WHITLEY, DISTRICT ATTORNEY GENERAL; AND LYTLE ANTHONY JAMES, 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.
JOHN EVERETT WILLIAMS, JUDGE
This case arises from an incident where the defendant was charged with possession of contraband in the Sumner County jail. During an altercation, the defendant's commissary bin was thrown from his cell onto the ground floor of the jail, and the items were scattered across the floor. The defendant was subsequently placed in administrative segregation, and officers later gathered his commissary items and returned them. After returning the bin and the items to the defendant, officers conducted a search and discovered contraband, including Xanax and a non-controlled substance, in a package of Ramen Noodles.
Prior to trial, trial counsel filed a motion to withdraw as counsel after the defendant placed an angry and profane telephone call to trial counsel's paralegal. Trial counsel later struck this motion after the defendant apologized for his actions, and trial counsel agreed to represent the defendant.
While represented by counsel, the defendant filed multiple pro se motions during pre-trial proceedings. The trial court admonished the defendant for filing pro se motions while represented by trial counsel and informed the defendant that the court would not accept any pro se motions filed while the defendant was represented by an attorney. The trial court also informed the defendant that the court would hold the defendant in contempt if he said "one other word . . . . If [he] sa[id] two words, [the court was] going to gag [him] and take [him] out of court."
Shortly after receiving this warning, the defendant again spoke when not addressed by the court, and the trial court ordered the defendant removed from the courtroom. The court informed trial counsel "that anytime that [the defendant] comes into court [it did] not want to hear one word from his mouth. He can whisper to [trial counsel] and talk to [trial counsel] and [trial counsel] speak for [the defendant], but if he says one thing in court from this point on, he is out." The court instructed trial counsel to inform the defendant that "[h]e is not to say one word in this courtroom. If [the court] hear[s] him say anything, he is out; he's in contempt of court."
The defendant filed a federal lawsuit that included the trial judge and the district attorney as co-defendants, and he argued that this federal lawsuit required the trial judge to recuse himself from the defendant's possession of contraband trial. The trial court denied the motion, finding that the trial court was impartial and that the defendant's allegations that the judge had embezzled nine million dollars were calculated to try to create a conflict of interest.
Several days after the trial court denied the motion to recuse, the defendant's trial commenced. At trial, Officers Jeremy Adams, Charles Bandy, and Sydney Rush testified that on July 9, 2010, they were ordered to search the defendant's cell. The defendant was in a solitary cell in the administrative segregation area of the jail because he had been involved in an altercation the previous day. The officers began to search the defendant's cell, and Officer Rush discovered a suspicious package of Ramen Noodles and noticed that a small piece of scotch tape was holding the back flap of the package down. The package had a slit and appeared to have been cut. Officer Rush set aside the package, and the officers continued searching the cell.
Once the search was complete, Officer Rush told the defendant, "I'm fixing to search your legal mail, all your mail, and I'm going to search this pack of noodles." However, before Officer Rush "could complete [his] sentence, " the defendant grabbed the package from Officer Rush's hand and began running out the cell door. Officer Rush grabbed the back of the defendant's pants, and the defendant continued running down the walkway "more or less dragging" Officer Rush down the catwalk and around the corner. Officers were able to subdue the defendant as he appeared to attempt to push the package underneath the door of another cell. The officers recovered the package and found a number of blue and white pills wrapped tightly in a clear bag, a leafy substance that appeared to be tobacco, and a white and blue pill wrapped in toilet paper.
Officers turned the items over to the Jail Administrator, and the items were sealed into an evidence bag. The pills were sent to the Tennessee Bureau of Investigation ("TBI") for testing, but the Ramen Noodles package was not sent. Lieutenant Christopher Tarlecky did not send the package of noodles because he did not see anything that looked illegal in the package, and the TBI would have returned the package untested. Lieutenant Tarlecky testified that he spoke with several inmates, including Gordon Storke, on the evening that the altercation occurred. He stated that Mr. Storke told him that the defendant heard that Christopher Ryan possessed contraband and that the defendant wanted Mr. Ryan in the defendant's cell.
Ms. Patti Choatie, a forensic scientist with the TBI, tested the pills that were seized from the defendant's cell. She testified that tests identified the blue and white pills as Xanax, the one and a half white tablets as a non-controlled substance, and the leafy substance as marijuana. Marijuana was not included on the indictment, and during a jury-out hearing after Ms. Choatie's testimony, trial counsel requested that the court issue a corrective instruction to the jury. The trial court agreed and told the jury that they were not to consider the marijuana as evidence of the charged crime. The court also struck all mention of marijuana from the report, whiting out any references to marijuana in the TBI report.
Christopher Ryan, the defendant's cell mate, testified that he brought Xanax and hydrocodone into the jail on July 6, 2010. He gave the defendant some of the contraband as a method of self-defense, stating that "you have to share or you go to the clinic." Mr. Ryan implied that if contraband was not shared, other inmates would attack and forcibly take the contraband. Mr. Ryan did not see where the defendant placed the contraband, but he did recall that the defendant had a plastic storage bin in the cell. Mr. Ryan never placed any of his belongings in the bin because the bin belonged to the defendant.
Gordon Storke was an inmate in the same cell pod as the defendant. He testified that Mr. Ryan brought contraband into the jail by storing it in his rectum and that he and other inmates stood by the cell door while Mr. Ryan removed the contraband. During the July 8 altercation, Mr. Storke witnessed other inmates enter the defendant's cell and throw the defendant's "stuff" over the second-story railing onto the ground floor. He testified that Mr. Ryan wanted to be placed in the defendant's cell.
The defendant took the stand, and as he was being sworn in, he stated, "I solemnly swear that the truth -- that the statement that I'm about to give is the whole truth. That I'm being held in double jeopardy for another man['s] crime." The defendant admitted that he had prior felony convictions for theft of property over $10, 000, possession of a Schedule VI drug over 0.5 ounces, and possession of less than 0.5 grams of cocaine. He testified that Mr. Ryan asked him if Mr. Ryan could move to his cell and that Mr. Ryan spoke with officers to arrange the move. The defendant stated that the only contraband he received from Mr. Ryan was two cigarettes, and he said that he had no knowledge of any further contraband that Mr. Ryan possessed. He recalled seeing material thrown out of his cell during the July 8 altercation and stated that he was taken to the medical clinic and subsequently placed in administrative segregation following the altercation. On the way to administrative segregation, the defendant met with Lieutenant Tarlecky to explain his version of the altercation.
The defendant testified that prior to the altercation, he had a storage bin in his cell that contained legal mail, clothing, and a few commissary items that his previous cell mate had left him. He stated that his commissary bin was returned to him "at least four or five hours" after he was placed in his administrative segregation cell. The defendant claimed that he was unaware of any contraband contained in the Ramen Noodles package and stated that he may have won the Ramen Noodles playing poker. He testified that Officer Rush told him that he would be charged if any contraband were found in the noodle package. The defendant then became angry and "threw the no[o]dle packet on the ground, like, I smacked it off the sink." The defendant testified that he did not grab the package and begin to run but rather that he walked out of the cell without the package and began to start toward Mr. Storke's cell. Officers then tackled him to the ground. The defendant testified that the package never left his cell and that he never attempted to slide the package under the door of a different cell. He agreed that he did not have permission from the jail administrator to have Xanax in his possession.
At the conclusion of the proof, Deputy Timothy Gilley spoke on the record with the trial court and both attorneys. After being sworn in, Deputy Gilley told the court that he was informed by several members of the jury that the defendant had been displaying signs for the jury to read. The court then asked Deputy Gilley to speak with the members of the jury, and Deputy Gilley relayed that several jurors informed him that the defendant held up a folder to the jury with the words "Victory Celebration" and a photograph. The defendant told the trial court that he had a photograph that the jury may have seen and that he was planning to send to a family member. Trial counsel did not object to this testimony. Deputy Gilley retrieved the folder, which contained a photograph of the defendant and his girlfriend and the words, "This is a victory picture to second not guilty."
The trial court ordered the defendant removed from the courtroom for the remainder of the trial, which consisted of closing arguments by both attorneys. The defendant was able to remotely see and hear the trial from a pod in the jail. The trial court found that displaying the folder and photograph to the jury was "a direct attempt by the defendant to influence, put pressure on this jury." The trial court also instructed the jury that they were to disregard anything that they were shown that was not introduced into evidence in the case. The trial court informed the jury that the defendant would watch the remainder of the trial via video camera and that the jury could not consider the defendant's absence from the courtroom "for any reason or any purpose."
At the conclusion of the defense's closing arguments, the trial court ordered a brief recess when he learned that the audio component of the defendant's remote video feed had failed. Once the audio was restored, the State gave its rebuttal closing argument. The jury found the defendant guilty of possession of contraband in a penal institution, and the defendant was able to hear this verdict through his remote video feed.
On December 19, 2012, the defendant filed a petition for interlocutory appeal of the trial court's denial of his third motion for the trial judge to recuse himself. State v. Antonio Freeman, No. M2012-02691-CCA-10B-CD, 2013 WL 160664, at *1 (Tenn. Crim. App. Jan. 15, 2013). This court affirmed the denial of the motion, concluding that the filing of a lawsuit against a trial judge was insufficient to warrant recusal and that prosecuting the defendant for a prior crime did not require the judge to recuse himself. Antonio Freeman, 2013 WL 160664, at *4-5.
On June 24, 2013, the trial court conducted a hearing on the defendant's motion for new trial, in which he raised numerous issues, including an allegation of ineffective assistance of counsel. The trial court found that the issues of abuse of discretion and judicial error had previously been litigated and ruled "that this issue is res judicata, it's been determined, and it is not ripe, it's not an appropriate issue for appeal." The defendant next alleged that newly discovered evidence in the form of the testimony of Michael Hudson necessitated a new trial.
Mr. Hudson testified that he was a part of the July 8 altercation and that he was released from jail in May of 2011. Since his release, he had not seen or spoken with the defendant until days before the motion for new trial. He testified that when he learned that Mr. Ryan brought contraband into the jail, he went up to Mr. Ryan's and the defendant's cell in an attempt to persuade Mr. Ryan to sell him some tobacco. An argument ensued, and Mr. Hudson threw the defendant's commissary bin out of the cell and out into the middle of the first floor of the pod.
After the altercation, Mr. Hudson and Mr. Ryan were housed in the same jail pod, and Mr. Hudson learned that the defendant had received a ten-year sentence. Mr. Hudson testified that after he threw the bin out of the cell, officers packed up the commissary and brought it to the holding cells. He stated that the defendant never threatened Mr. Ryan.
Trial counsel testified that he was not provided with Mr. Hudson's name prior to trial and was not aware that Mr. Hudson was the instigator of the July 8 altercation. He agreed that a witness who could have provided the jury with reasonable doubt as to how the defendant came into possession of the contraband would have been very helpful to his case because it would have helped him present questions and raise a reasonable doubt as to the chain of custody regarding the contraband. Trial counsel did not recall finding anything in the jail module report about Mr. Hudson. He agreed that knowing there was an individual who could have filled in the gaps to establish the chain of custody of possession of the contraband would have been very material to the case and that he would have "aggressively pursued it, " but he was unable to do so because he did not have that information.
Trial counsel testified that Mr. Hudson's confirmation that the events happened in the manner that the defendant described them would have been material because it would have bolstered the defendant's credibility. He stated that the testimony of Mr. Hudson would have been helpful because there was a gap in time when the defendant was removed from his pod, but his commissary items remained in the pod.
Trial counsel next testified regarding the claims of ineffective assistance of counsel. Trial counsel stated that he investigated the incident that led to the filing of his first motion to withdraw as counsel. He stated that he filed the motion because the defendant telephoned his office and "began an angry and profane rant." Trial counsel felt that his staff was genuinely afraid of the defendant and believed that they had been threatened by the defendant. He later learned that the defendant was angry because trial counsel had failed to meet with him "right away" after the defendant was arrested on four new criminal charges. Trial counsel had not been appointed to represent the defendant on any of these charges. The defendant's son was with the defendant when he was arrested, and the defendant felt that his son had been mistreated by police officers. Trial counsel believed that this alleged mistreatment "was more of the source of [the defendant's] anger than anything."
Trial counsel agreed that he did not pursue an interlocutory appeal on either of his motions for the trial judge to recuse himself. He testified that he "was either the eighth attorney or the eleventh attorney" appointed to the defendant throughout his various criminal proceedings. Trial counsel felt that he had "a close working relationship" with the defendant, although he noted that the defendant was unhappy that trial counsel would not participate in discussions about the federal lawsuit that the defendant filed.
Trial counsel interviewed the defendant extensively before trial and followed up with the witnesses that the defendant suggested. He interviewed Lieutenant Tarlecky and listened to audio recordings of Lieutenant Tarlecky's interviews with the defendant, Mr. Ryan, and Mr. Storke. He also reviewed the statements of the officers who searched the defendant's cell. He spoke with jail management to review other jail records pertaining to the July 8 altercation, and he reviewed medical tests that indicated that the defendant was not under the influence of any illegal drugs on the evening of July 8. Trial counsel also contacted prison officials regarding video records of the search of the defendant's administrative segregation cell. Trial counsel met with the defendant numerous times in person and spoke with him on the telephone. Trial counsel felt that he properly investigated the case; he met with witnesses and carefully reviewed all the evidence. He did not believe that the State withheld exculpatory evidence. He stated that receiving the TBI report earlier would have been beneficial, but he agreed that the State did not have early access to the report either. Trial counsel agreed that he filed a pretrial motion to dismiss based upon the State's failure to disclose the exculpatory evidence of Mr. Ryan's conviction.
Trial counsel did not see the results of the TBI tests on the contraband until the morning of trial. He did not ask for a continuance before trial because the State also had not received the evidence, and trial counsel felt that the narrative statement of Ms. Choate was "fairly straightforward" with the exception that the statement mentioned marijuana. Trial counsel felt that he understood the statement and could use cross-examination to address any questions that needed exploration. Trial counsel requested that any mention of marijuana be struck, and the trial court issued a curative instruction to the jury at trial counsel's request.
Trial counsel "became convinced" that the defendant was not guilty of the charge of possession of contraband because he believed that "there was adequate reasonable doubt." He stated that his defense strategy was to show that the defendant "had conducted himself in such a way that he was not part of any contraband scheme, to show that he was not in possession of contraband, [and] to show that there was a significant and material break in the chain of evidence or chain of custody of the alleged contraband materials" from the time of the altercation to the time of the search of the defendant's cell. Trial counsel stated that Mr. Storke was a witness who could help bolster trial counsel's theory of the case. He spoke with Mr. Storke both in person and via telephone.
Trial counsel received notice that the State was seeking to impeach the defendant and enhance his sentence with prior convictions "either ten days or two weeks out" from trial. Trial counsel did not request a hearing as to these notices, but he filed a motion in limine to allow evidence to be introduced showing that the defendant was found not guilty of the two charges for which he was incarcerated when he was charged with possession of contraband. Trial counsel did not object to the State's seeking of an enhancement or the use of impeaching convictions because he believed that the motions were accurate based upon the defendant's criminal record.
Trial counsel informed the defendant that prior convictions could be used to impeach him if he chose to testify and "filed motions and proceeded based on my professional determination of what would be in my client's best interest." Trial counsel discussed this issue with the defendant in both trials where he represented the defendant because the State filed motions for impeachment in both trials.
Trial counsel did not request that an independent fingerprint analysis be performed on the Ramen Noodles package because the State indicated that no fingerprinting had been performed. Trial counsel learned on the day of trial that the State had withdrawn a request for fingerprinting.
Trial counsel agreed that he did not object to the testimony of Officer Gilley as to statements jurors made to Officer Gilley about the photograph and message that the defendant displayed. He also could not recall whether he objected to the removal of the defendant from the courtroom.
Trial counsel did not recall the State's eliciting testimony from Mr. Ryan about the size of the defendant. He did recall the State's making reference to the size difference between Mr. Ryan and the defendant during closing arguments. Trial counsel did not object to the statements or move for a mistrial, but he "did ...