Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs at Knoxville September 16, 2014
Appeal from the Criminal Court for White County Nos. CR-00676 & 00686B Donald P. Harris, Senior Judge
Billy Keith Tollison III, Sparta, Tennessee, for the appellant, Lester Arnold Clouse.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Randall A. York, District Attorney General; and Howard Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
I. Procedural History
Appellant was indicted for seventeen counts of arson, two counts of aggravated assault (Deputies David Gibbons and Bill Harris), and resisting arrest. His first trial in 2001 resulted in convictions on five counts of arson, two counts of aggravated assault, and one count of resisting arrest. State v. Lester Arnold Clouse, No. M2004-00124-CCA-R3-CD, 2004 WL 193069, at *1 (Tenn. Crim. App. Jan. 30, 2004). This court reversed appellant's convictions and remanded the cause for a new trial on all counts. Id.
Following the June 2005 retrial on all of the charges, the jury found appellant not guilty of the arson counts, guilty of aggravated assault (Deputy Bill Harris), guilty of the lesser-included offense of assault (Deputy David Gibbons), and guilty of resisting arrest. The trial court approved the jury's verdicts. The trial court conducted a sentencing hearing on October 11, 2005. At the conclusion of the hearing, the trial court requested the parties to submit supplemental briefs as to the validity of certain prior convictions that appellant contested. The court indicated its desire to issue an order within thirty days. When the original trial judge left the bench, a sentencing order had not been issued.
A successor judge was appointed and signed the judgment orders on February 22, 2008. The court sentenced appellant as a persistent offender to fifteen years in confinement for aggravated assault, to be served consecutively to other outstanding sentences. The court merged appellant's conviction for resisting arrest into his conviction for aggravated assault, and the court imposed a sentence of eleven months, twenty-nine days for his assault conviction, to be served concurrently with the aggravated assault conviction but consecutively to other outstanding sentences.
A second successor judge was appointed to hear the motion for a new trial. The hearing was conducted, and the successor judge issued a written order denying the motion on October 11, 2013. This timely appeal follows.
A. Facts from Suppression Hearing
At the beginning of the hearing, appellant conceded that he was a passenger in the vehicle driven by his co-defendant Michael Shane Carter and that he did not have standing to challenge the search of the vehicle. He clarified that his position was that "anything the State intend[ed] to use as a result of the seizure" was inadmissible.
The State presented Deputy David Gibbons with the Putnam County Sheriff's Department as a witness. He testified that on October 26, 1999, he was performing a routine traffic patrol when he was alerted to several fires being set in the area. He responded to an area around Stone Seminary Road and was instructed to be on the lookout ("BOLO") for a small black car with two male occupants who were possibly involved. The area Deputy Gibbons was patrolling ranged from one to five miles from the Putnam/White County line. During the patrol, Deputy Gibbons noticed fires on the right side of the road, and the fires decreased in size as he followed the trail into White County. While following the line of fires, he spoke with a delivery man who told him that a small black car was a short distance in front of him. Deputy Gibbons continued and observed the vehicle about a mile into White County. The vehicle was moving at an "extremely" slow rate of speed; Deputy Gibbons estimated that the rate of speed was approximately five miles per hour. He followed the vehicle and initiated a traffic stop. He asked the driver for his license, but the driver did not have it. Deputy Gibbons asked for the driver's personal information, which he used to run the license information through his computer. During this process, appellant exited the vehicle from the passenger's side and began moving things around in the back seat.
On cross-examination, Deputy Gibbons confirmed that he had jurisdiction to stop a vehicle in White County while in the process of investigating a case. The usual procedure involved notifying the county of an officer's actions, and he believed that the notification had been made in this case. Deputy Gibbons explained that he estimated the vehicle's speed by following it but that he had also been trained in estimating the speed of a vehicle by observing it. He stated that he initiated the traffic stop because of the BOLO and because of the extremely slow rate of speed, which caused him to believe that something might have been wrong.
The trial court ruled that Deputy Gibbons was a credible witness and that he had reasonable suspicion to initiate the traffic stop. It stated that it was "very, very, very clear, . . . almost a textbook classic case." The court summarized that Deputy Gibbons was patrolling near the county line when he received a BOLO about the fires and the small black car that had been seen earlier driving slowly. He then saw larger fires on the right side of the road, becoming smaller as he continued, "which would lead one to believe that we might be on the right trail here." Deputy Gibbons confirmed with the delivery man that the suspect vehicle was ahead of him and continued into White County to further investigate. Deputy Gibbons observed the vehicle about a mile into White County, traveling in the same direction as the fires. Based on the totality of the circumstances, the trial court held that Deputy Gibbons had reasonable suspicion to stop the vehicle.
B. Facts from Trial
Deputy Gibbons was the State's first witness at trial. His testimony was substantially similar to that at the suppression hearing. At trial, he continued with his recollection of the events of October 26, 1999, by stating that as he was running co-defendant Carter's information, he noticed both occupants exit the vehicle. Around that time, Deputy Bill Harris arrived, and Deputy Gibbons learned that there was a warrant for co-defendant Carter's arrest. Deputy Gibbons requested Deputy Harris to approach the passenger side of the vehicle but advised him that he had previously seen a crossbow in the back seat. Deputy Gibbons then approached the driver's side and placed co-defendant Carter under arrest.
In the meantime, Deputy Linda Dilldine arrived on the scene. Deputy Gibbons then noticed that appellant had exited the vehicle but was leaning into the backseat of the vehicle. He heard Deputy Harris order appellant to move away from the vehicle and place his hands on top of it. Appellant said that he was "checking on some clocks, [and] he didn't want them to get damaged." When appellant stepped away, he was holding the crossbow and then placed it on top of the vehicle. Deputy Gibbons described appellant as "irate." He began screaming at officers, "'I've not done anything wrong.'" Appellant walked around to the front of the vehicle and wielded a pocket knife.
Deputy Gibbons testified that he transferred control of co-defendant Carter, who was then handcuffed, to Deputy Dilldine. He and Deputy Harris approached the front of the vehicle and each stood close to the front tires on opposite sides. Appellant continued "screaming" at officers, "'I've not done anything wrong.'" He continued waving the knife at them. Officers shouted commands at appellant, but he refused to comply. He repeated that he had done nothing wrong and told the officers to "leave [him] alone." Deputy Gibbons confirmed that the knife had been in appellant's right pocket. During the encounter they were four to five feet away from appellant, and Deputy Gibbons felt threatened.
Deputy Gibbons explained that after about a minute had passed, appellant began to flee. He ran down the road, and officers gave chase. They pursued appellant through a field toward the back of it. He continued to threaten them with the knife, and at one time, appellant held it to his own neck and threatened to kill himself. Other officers responded to the scene, and someone sprayed appellant with mace pepper spray then kicked the knife out of his hand. Deputy Gibbons confirmed that the encounter took place in White County. After co-defendant Carter and appellant were arrested, there were no further reports of fires being set in the area.
On cross-examination, Deputy Gibbons acknowledged that he and Deputy Harris had their guns drawn on appellant when he wielded the knife. He clarified that although he maintained a short distance between himself and appellant, he was still within the "reactionary gap" of six feet in which he could have potentially been cut by the knife despite his holding a weapon.
The State's next witness was Deputy Bill Harris with the Putnam County Sheriff's Department, who stated that he responded to the area where someone had reported that people in a small black sports car were setting fires. He began his patrol about two or three miles from the Putnam/White County line, and as he followed the fires, he arrived at the location where Deputy Gibbons had stopped co-defendant Carter's vehicle. When he first arrived, Deputy Gibbons was in his patrol car checking warrants and personal information on co-defendant Carter, and Deputy Harris observed that appellant had exited the two-door vehicle and was leaning into the backseat area through the open door. When Deputy Harris approached appellant to ask him to back out of the vehicle, appellant produced a crossbow from the back seat and placed it on the roof of the vehicle. He then attempted to re-enter the vehicle, stating that there was an antique clock that he did not want damaged. While appellant was searching for the clock, Deputy ...