Session September 4, 2014.
[Copyrighted Material Omitted]
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed; Judgments of the Trial Court Reinstated, Appeal by Permission from the Court of Criminal Appeals, Criminal Court for Knox County. No. 93768. Bob R. McGee, Judge.
Judgment of the Court of Criminal Appeals Reversed; Judgments of the Trial Court Reinstated.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellant, State of Tennessee.
Joshua D. Hedrick, Knoxville, Tennessee, for the appellee, Justin Ellis.
JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK, GARY R. WADE, and HOLLY M. KIRBY, JJ., joined.
JEFFREY S. BIVINS, JUSTICE.
We granted the State of Tennessee permission to appeal in this criminal proceeding to address two issues: (1) the analytical framework that a successor judge should utilize in deciding whether he can act as the thirteenth juror, and (2) the standard of appellate review of a successor judge's determination that he can or cannot act as the thirteenth juror. We hold that there is a rebuttable presumption that a successor judge can act as the thirteenth juror. We also hold that an appellate court should review de novo a successor judge's decision about acting as the thirteenth juror. Applying these principles to the instant case, we hold that the successor judge committed no reversible error in determining that he could act as the thirteenth juror. Accordingly, we reverse the judgment of the Court of Criminal Appeals
and reinstate the trial court's judgments of conviction.
Factual and Procedural Background
Justin Ellis (" the Defendant" ) was charged with two counts of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, one count of especially aggravated kidnapping as to victim Isiah Cobb, one count of especially aggravated kidnapping as to victim Jessica Greene, one count of aggravated robbery of victim Cobb by fear, one count of aggravated robbery of victim Cobb by violence, one count of aggravated robbery of victim Greene by fear, and one count of aggravated robbery of victim Greene by violence. Prior to trial, the State dismissed one of the aggravated burglary counts and the two counts of aggravated robbery as to victim Cobb.
At the ensuing jury trial in October 2010, the prosecutor explained during her opening statement that Isiah Cobb and Jessica Greene (" the victims" ) lived in a house together with their roommate, Justin Woodruff, the Defendant's cousin. She stated that the Defendant broke into the house within hours of Woodruff moving out. The Defendant threatened the victims with a gun and stole cash, Christmas gifts, and Cobb's car.
Defense counsel asserted during his opening statement that the Defendant had been staying with the victims and Woodruff for several days as a guest in the victims' house. The Defendant knew that the victims kept a quantity of marijuana in the house. While the victims were out of the house, the Defendant found and took the victims' marijuana. After the victims got home and were in the bedroom, the Defendant took their car keys and the marijuana and left in Cobb's car. Because the victims did not want to tell the police about the marijuana that had been stolen from them, they fabricated the theft of other items of similar value.
After opening statements concluded, the following proof was adduced:
Officer John David Lawson of the Knoxville Police Department testified that he responded to a call from 167 Chickamauga Avenue in Knox County (" the House" ) at approximately 12:24 a.m. on December 29, 2009. There, he met two victims, and they informed him that they had been " robbed." Officer Lawson viewed the House, and he described it as being in " disarray." He examined the back door of the House and described it as " damaged and didn't have a very good lock on it." Officer Lawson also explained that his patrol car recorded the conversation that he had with the victims while they were outside the House. The recording was admitted into evidence and played for the jury.
On cross-examination, Officer Lawson acknowledged that the victims told him that about $650 in cash and some jewelry had been taken. He also acknowledged that he had never been inside the House before and did not know if the " disarray" he observed was typical or not. When asked to describe the damage he noticed to the door, Officer Lawson testified, " Well, the strike plate was -- looked old and worn, and it looked like it had been knocked around a little bit, and it was cracked." He clarified that it was the frame around the strike plate that was cracked and that the frame was not knocked out of the door. He did not notice any footprints or other marks on the door. He did not request that any photographs be taken of the door.
On redirect examination, Officer Lawson testified that his written report indicated that the victims stated that their assailant had taken a wallet, a purse, $650 in cash, two cell phones, jewelry, coins in a jar, clothing, and the keys to a Mercury car.
Isiah Cobb, twenty-one years old at the time of trial, testified that, in December 2009, he lived at the House with his girlfriend, Jessica Greene. He had been living there approximately six months. In August 2009, Justin Woodruff moved into the House with them. Cobb understood that Woodruff and the Defendant were friends. While he lived in the House, Cobb worked for Little Caesars as a manager.
Cobb got home at about midnight on the night in question. He and Greene were inside the House with the " bottom door handle" locked. While Cobb was in the " back room," he " heard a loud commotion bust through the back door." Cobb was talking to Greene's brother on his cell phone and went to investigate. He saw the Defendant inside the House near the back door, holding a gun. Cobb stated that the Defendant was wearing gloves and a black hoodie. The Defendant told Cobb to drop his phone and then demanded Cobb's belongings.
Cobb testified that the Defendant pointed his handgun at Cobb's face and chest and ordered Cobb not to move. The Defendant told Cobb that, if Cobb moved, the Defendant would kill him. The Defendant also pointed his gun at Greene, saying, " What you got in your bra? Where is the money at?" Cobb testified that the Defendant told both him and Greene to remove their clothes.
While the Defendant held the victims at gunpoint, he was " packing as much stuff as he can in his pockets." The Defendant also put things in a bag. The Defendant took a Nintendo DS, an iPod touch, an " in-dash stereo," a change jar, some jewelry, Greene's purse, and some clothing. The Defendant also took Cobb's wallet, including approximately $1100 in cash, and Cobb's car keys. Cobb explained that he had the cash to pay bills, including " about $600 to pay [his] rent," his electricity bill, and both his and Greene's cell phone bills.
The Defendant left and returned less than a minute later, again ordering the victims not to move. The Defendant again left and returned, and, according to Cobb, " basically stayed inside the house for like another two and a half, three minutes arguing with [him and Greene]. Telling [them], 'Where's the rest of the money. I know you hiding something in here. If you don't give it up, I'm going to kill you.'" Cobb testified that he was afraid the Defendant was going to kill him.
The Defendant finally left in Cobb's car, a Mercury Grand Marquis. Afraid that the Defendant was waiting to kill him, Cobb remained where he was until Greene's brother arrived. At that point, Greene was able to call the police on her brother's phone.
Cobb stated that, about one week prior to these events, Woodruff and the Defendant had come by the pizza store where Cobb was working, and the Defendant took an employment application. Cobb told the Defendant that he would try to get the Defendant hired. Cobb also stated that Woodruff moved out of the House on the day preceding the home invasion.
On cross-examination, the defense established that Cobb earned $11 dollars an hour, $16.50 an hour for overtime, and that he worked fifty-two to fifty-three hours per week. Cobb stated that he made " about 25 to three grand a month -- well, I say every two weeks, somewhere in that range. I'd say about 20 -- anywhere from
22 to 28."  Cobb acknowledged that he originally claimed that the value of the cash and items taken from the House was approximately $9,000. He added that some of the items taken were Christmas gifts from other people.
Cobb acknowledged that he refused to accede to the Defendant's demand that he take off his clothes, explaining that he was " so scared, [he] don't [sic] even know what to do." When asked about his previous contacts with the Defendant, Cobb responded, " I had seen him before when I was at work, and I've seen him around Justin Woodruff, but he had never been at my house before." Cobb acknowledged, however, that it was possible that, without his knowledge, Woodruff had had the Defendant over to the House while Woodruff was living there.
In response to questions by the jury, Cobb testified that he had cash on him that night and that he was going to convert the cash to money orders the next morning, which he would then mail to pay his bills.
Jessica Greene, nineteen years old at the time of trial, testified that she had worked as an assistant manager at the Little Caesars on Broadway in Knoxville and, later, for a cleaning service. For Christmas 2009, her brother gave her an " iPod DS," an iPod touch, and a Nintendo DS. She also had been given a Juicy Couture purse, a Coach purse, and a Coach wallet, as well as some clothes and jewelry. She and Cobb also had two cell phones, a 1995 Cadillac, and a Grand Marquis vehicle.
Greene identified the Defendant and stated that she had seen him two or three times before the night of December 28-29, 2009. On that night, she testified, she and Cobb had come home with dinner and gone into their bedroom to eat. She heard " a big commotion." She then saw the Defendant come into the bedroom with a gun pointed at her. She described the gun as " black and chrome. It looked like a 9-millimeter." The Defendant said, " Get on the ground. I need everything. I need money, purses, everything y'all have." Greene got down on her knees and kept her hands visible to the Defendant. The Defendant told Cobb and Greene to gather their things and " throw the stuff across the room to him." Greene threw her phone to the Defendant. He came over to her and tugged on her shirt, telling her to take it off, but she refused. The Defendant then " kind of just left [her] alone." Greene testified that she was scared the Defendant would shoot her if she got up.
After the Defendant finished collecting their things, he told them, " Now, don't get up. I'm not playing with you guys, or I'll kill y'all." He told them he was " going to go put their stuff in the car," and he left. He returned a short time later and again warned the victims not to move. Greene knew that her brother was on the way because Cobb had been talking to him on the phone earlier. Her brother arrived after the Defendant pulled off in the Grand Marquis, and she then was able to call 911. The recording of her phone call to 911 was admitted into evidence and played for the jury. Greene acknowledged that, while
she was talking to the 911 dispatcher, she was asking Cobb a lot of questions.
Greene testified that she did not see the Defendant come through the door into the House. Initially, she thought that Cobb had left the door unlocked, " but then [they] realized that [the Defendant] kicked it in, because the bottom lock was broke[n]." She stated that she showed the broken lock to the police.
On cross-examination, Greene acknowledged that Cobb called Woodruff before she called 911. She also acknowledged that, when the 911 dispatcher asked her what the Defendant had been wearing, she repeated the question to Cobb before answering. She stated that she wanted to " make sure" to provide an accurate description. Initially, she told the 911 dispatcher that the Defendant had been wearing yellow gloves, but Cobb corrected her and told her that he had been wearing red gloves. She also told the dispatcher that the Defendant had not forced his way in. Cobb then told her that he had. She testified that she had not seen the Defendant come through the door of the House, so she was not sure how he got in. Greene also stated on cross-examination that the armed Defendant had told her to take her shirt off and that she had told him, " No."
The State rested its case-in-chief after Greene's testimony. The defense put on no proof. During closing argument, the prosecutor asserted that there had been no proof that the victims were drug dealers. She described the victims as " two good kids. Only thing that they did was work." The prosecutor then focused on how the Defendant's actions constituted the various crimes with which he was charged, emphasizing the especially aggravated kidnapping charges. Defense counsel focused on Officer Lawson's testimony that the doorframe was not broken and that he had not seen any footprints on the door; Greene's conflicting statements about the color of the gloves that the Defendant had been wearing; that the victims had each refused to do something that the Defendant told them to do in spite of claiming to be scared that the Defendant would shoot them; that the victims' accounts of what happened amounted to robbery but not kidnapping; and that the Defendant stole the victims' property but did not rob or kidnap them. In rebuttal, the prosecutor argued that the victims' testimony was consistent with the police recording and the 911 call and that the victims " have no reason to lie."
After deliberating, the jury convicted the Defendant of aggravated burglary, employing a firearm during the commission of a dangerous felony, aggravated robbery of Greene by fear, and aggravated assault as a lesser-included offense of the aggravated robbery of Greene by violence. The jury acquitted the Defendant of the kidnapping charges. The trial judge did not expressly accept or approve of the jury's verdict.
After the Defendant's trial and before the sentencing hearing, the trial judge left the bench and a successor judge was designated (" the designated judge" ). The designated judge held a sentencing hearing, merged the aggravated assault conviction into the aggravated robbery conviction, and sentenced the Defendant to an effective term of fourteen years. After sentencing, the designated judge transferred the matter to a different division " for further proceedings." The Defendant timely filed a motion for new trial, alleging, in part, that a successor judge could not act as the thirteenth juror because
witness credibility was the " over-riding issue." A successor judge (" the successor judge" ) conducted the hearing on the motion for new trial.
At the motion for new trial hearing, defense counsel argued that the successor judge could not rule as the thirteenth juror because credibility was the central issue of the case. The successor judge rejected this argument as follows:
[I]t does appear that the Biggs case is limited to where, not just where [credibility] is overriding. I think that's the word they use, but it's actually a situation where [credibility] is the whole case.
It is limited pretty much to situations that we sometimes call he said, she said, where the only evidence of the crime is the testimony, the victim, and the only evidence rebutting that -- is the testimony of the defendant. And we are post-trial now, the defendant's right to testify or not to testify was protected at the trial and he made his decision. In judging retrospectively, what the quality of the verdict was. Certainly we are -- we have to take into consideration ...