Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 12, 2014
Appeal from the Criminal Court for Davidson County No. 2010-C-2636 Cheryl Blackburn, Judge.
David A. Collins (on appeal and at motion for new trial), and Michael Rohling (at trial), Nashville, Tennessee, for the appellant, Timothy Roy Bozza.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Victor S. (Torry) Johnson III, District Attorney General; and Tom Thurman, Katrin Miller, and Jan Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
ROBERT H. MONTGOMERY, JR., JUDGE
This case relates to the August 29, 2010 fatal shooting of the Defendant's estranged wife, Veronica Bozza, by Coy Cotham. Mr. Cotham was convicted in a separate trial of first degree murder and is serving a sentence of life without parole. State v. Coy J. Cotham, Jr., No. M2012-01150-CCA-R3-CD, 2014 WL 3778613 (Tenn. Crim. App. July 31, 2014), applic. for perm. app. filed (Tenn. Oct. 17, 2014). At the Defendant's trial, the State's theory was that the homicide was a contract killing. The Defendant did not contest that Mr. Cotham shot and killed the victim, but he contested his own culpability for the homicide.
The evidence showed that in the summer of 2010, the Defendant and the victim were a few weeks from finalizing their divorce. The parties had reached an agreement for division of assets, but they had been unable to resolve custody issues regarding their nine-year-old son. Although the Defendant and the victim agreed to share custody equally, the parenting plan contained inconsistent provisions about custody. The plan stated that they each had 182.5 days with the child but provided a schedule that allowed the victim substantially more time with the child than the Defendant. The child support amount was based upon the erroneous schedule and required the victim to pay more child support than she would have paid under an equal custody arrangement. The Defendant was concerned that the victim would move out of the state and that the parenting plan with the erroneous schedule might provide a basis for the victim's moving without the court's permission. The victim had expressed her desire to remain in Nashville for the child's benefit and, in an effort to alleviate the Defendant's concerns that she might relocate, had offered to pay the transportation costs and the Defendant's attorney's fees if she attempted to relocate. Nevertheless, the victim and the Defendant had reached an impasse in their negotiations, and the victim wanted a court hearing to resolve the matter.
While the divorce was pending, the Defendant and the victim were both under a court order to maintain a $350, 000 life insurance policy with the other spouse as the beneficiary. The victim had life insurance of $550, 000 that designated the Defendant as the beneficiary. The victim, a music video producer, was financially successful, but the Defendant, a construction contractor, was having economic difficulties.
Mr. Cotham had known the victim and the Defendant for several years. In recent years, Mr. Cotham had lived away from Nashville, but in April 2010, he contacted the Defendant and began doing construction work for him. The Defendant and Mr. Cotham also socialized together. At the time, the Defendant lived with his mother, and Mr. Cotham alternately stayed with multiple women.
On August 29, 2010, the victim and the child attended Mass. at St. Edward's Catholic Church. A priest testified that he spoke with the victim after the Mass. around 11:35 or 11:40 a.m. The Defendant waited in a parking lot outside the church to exchange custody of the child, as was the usual procedure on Sundays. The Defendant and the child left, and the victim returned to her house. Mr. Cotham was waiting nearby as she left the church, and he followed her home. The evidence showed that Mr. Cotham and the victim struggled inside the house, and he shot her at least four times. A medical examiner testified that the victim had two gunshot wounds to the head, both of which could have been fatal, a gunshot wound to the right shoulder, a gunshot wound to the mid-back, and a grazing wound to the left back. She also had abrasions.
Brian Robinson, the victim's boyfriend, testified that he spoke with the victim by telephone about 11:30 or 11:45 a.m. Cell phone records showed he and the victim spoke at 11:51 a.m. He traveled from a friend's house to the victim's house, arriving around 12:25 or 12:30 p.m. He found the fatally injured victim inside. He called 9-1-1 at 12:30 p.m. Location data from Mr. Robinson's cell phone corroborated his statement to the police that he had not been near the victim's home at the time she was killed. He testified that he did not see an iPad, the victim's iPhone, or a laptop computer at the house. He identified a blue cloth that was recovered from Mr. Cotham's SUV as being consistent with a cloth used for cleaning computer screens at the victim's house.
Police recovered four nine-millimeter projectiles and one nine-millimeter shell casing from the scene. Forensic evidence established that the shell casing from the scene had been fired from the same weapon as other casings that had been fired from a weapon Jeffrey Walters had reported as stolen before the victim's homicide. Mr. Walters was married to but separated from Jennifer Addington, who dated Mr. Cotham.
Metropolitan Police Department Detectives Andrew Injaychock and Johnny Crumby testified that they responded to the scene and then went to the Defendant's residence in Greenbrier to notify him of the victim's death. Detective Injaychock said they told the Defendant an incident occurred at the victim's house that they were investigating as a homicide but did not tell him the cause of death was by gunshot. The Defendant agreed to go to the Hermitage Precinct to be interviewed. He wanted to have his uncle accompany him, and the detectives followed him in a separate vehicle from his house to his uncle's house and to the precinct. Detective Injaychock testified that the Defendant was on a cell phone almost the entire time they were in transit.
The Defendant's interview with Detectives Injaychock and Crumby on the afternoon of the homicide was the first in a series of interviews in which he gradually admitted greater culpability. In the first interview, he denied any involvement in or knowledge of the victim's homicide. He said he did not send anyone to hurt or scare her. The detectives asked to see the Defendant's cell phone, and the Defendant agreed and said his uncle had it. They obtained the phone from the uncle, and when the Defendant looked at the phone, he said someone had erased its history. He asked the uncle if he erased it. The uncle professed his inability to operate modern technology. The Defendant was able to provide an alibi for the time of the homicide, and receipts and security footage from two retail establishments corroborated his account.
Detective Injaychock testified that after the interview, he and Detective Crumby went with the Defendant to the victim's house. He said that the blood and the evidence of an altercation had not been cleaned up. He did not recall the Defendant's having a physical reaction to the scene.
During the August 29 interview, Detective Crumby falsely told the Defendant that one of the victim's neighbors had a security camera. James Nehs, one of the victim's neighbors, testified that a few days after the homicide, the Defendant, whom he had met once, walked up behind him when he was mowing his lawn. He said that the Defendant inquired what the police were saying, said the police were lying to the Defendant, and stated the police told him a neighbor had a security camera on a porch. Mr. Nehs said the Defendant asked if he had a security camera and told Mr. Nehs to let him know if he heard or saw anything.
Detective Crumby testified that the police obtained cell phone records for the Defendant, the victim, and Mr. Robinson. After reviewing the Defendant's records and noticing several calls with Mr. Cotham, they obtained Mr. Cotham's records. Detective Crumby contacted Mr. Cotham, who did not want to be interviewed at the precinct, but agreed to meet Detectives Crumby and Injaychock in a parking lot and give a recorded statement on August 30, the day after the homicide. Mr. Cotham told the detectives that he called the Defendant on the previous morning to discuss their weekend and the Defendant's "new girl." He said he called the Defendant a second time and talked until the Defendant had his son with him. He said that neither of them typically talked on the phone during visitation with their children. He said he talked to the Defendant a couple of times and agreed with the Defendant's claim they last talked around noon or 12:30 p.m. on August 29. He said he had been at a girlfriend's house when he spoke with the Defendant the second time. He said that he sent the Defendant a text message on the morning of August 30 that he would be late for work and that the Defendant responded that there would be no work because of what happened to the victim. Mr. Cotham claimed this was when he found out about the victim's death. He said he called the Defendant after receiving the text message.
When confronted by the detectives with information from his cell phone records indicating that he had not been in the locations he had identified, that his cell phone had been in the victim's neighborhood when he called the Defendant at 12:20 p.m., and that the victim's iPhone and his cell phone had been in identical locations at various times, Mr. Cotham denied involvement. The detectives advised Mr. Cotham that they were seizing his cell phone and his SUV. Items recovered from the SUV included a black duffel bag, the contents of which included a pair of used latex gloves and a box of latex gloves, Mr. Cotham's Verizon cell phone bill, and a Cricket cell phone; a red collapsible cooler containing a black hat and a black police or military tactical sleeve; and a blue towel. A police department civilian employee testified that the tactical sleeve could be used to conceal a person's identity.
DNA evidence was collected from items in the SUV, and DNA and blood evidence were collected from Mr. Cotham, the Defendant, Mr. Robinson, and the victim. Test results revealed the following: DNA on the blue towel was consistent with a mixture from three individuals. One test excluded the Defendant and Mr. Robinson but not the victim and Mr. Cotham. Testing at another facility determined that Mr. Cotham was the major contributor but could not exclude the victim and Mr. Robinson as minor contributors. DNA on the cooler was consistent with a mixture from at least two people. Mr. Robinson, the Defendant, and the victim were excluded, but Mr. Cotham could not be excluded. DNA on the tactical sleeve was consistent with a mixture from at least three people. Mr. Cotham was the major contributor.
After talking with Mr. Cotham, the police interviewed Jennifer Addington, the person with whom Mr. Cotham claimed to have been at the time of the victim's homicide. Detective Crumby said she corroborated Mr. Cotham's alibi but was not very cooperative. He said she contacted the police on September 11, 2010, stating that she was afraid of Mr. Cotham and that she wanted to tell the truth. Detective Crumby testified that Ms. Addington stated that Mr. Cotham had taken her to dinner on August 29 and that on the way to the restaurant, he stopped in a parking lot by a Catholic school, which Detective Crumby said was the location the victim and the Defendant exchanged custody of their son. Ms. Addington agreed to cooperate with the police and attempted to lure Mr. Cotham from Kentucky to Nashville after his indictment. In one of her telephone calls with Mr. Cotham, he mentioned a nine-millimeter gun. According to other proof, details of the weapon had not been made public by the authorities. Despite Ms. Addington's efforts to convince Mr. Cotham to return to Nashville, he ultimately was arrested in Kentucky.
Ms. Addington testified that she dated Mr. Cotham, gave him money, and allowed him to drive her minivan. She said that on August 29, 2010, she had worked the previous night in Huntsville, Alabama, and that she returned to Nashville around 9:30 a.m. She showered and went to bed. She woke to find Mr. Cotham leaning over her. She said she slept with a handbag containing her van's key and her money in the bed because she had roommates. She thought Mr. Cotham was leaning over her to kiss her to wake her, but she said a person would also have to lean over her in order to get her van's key. She said it was "very possible" Mr. Cotham was taking her key, but she did not know if he drove her van while she slept that day. She thought that she asked Mr. Cotham the time when he leaned over her and that he said "somewhere around ten something." She said that she went back to sleep, that he woke her mid-afternoon, and that they went to TGI Friday's for an early dinner, stopping at the church parking lot. She said Mr. Cotham stated he did not know why they went that way, turned around, backed up, and went to the restaurant. Ms. Addington said that when she was in the Defendant's SUV that day, she saw a thin, white cell phone fall off the console and she put it back. She had not seen it previously and did not see it again. She said Mr. Cotham had a black Android cell phone, which was consistent with other witnesses' testimony. Ms. Addington said that Mr. Cotham left the restaurant for more than five but less than thirty minutes during their meal.
Ms. Addington testified that at Mr. Cotham's urging, she had taken a nine-millimeter handgun in a maroon lunchbox cooler from her then-husband on July 17 or 18, 2010. She said Mr. Cotham told her that she should take the gun to keep her husband from using the gun on her. She said Mr. Cotham did not ask her to give him the gun. She placed the cooler containing the gun in the back of her van, and she noticed it was missing on July 27. She said Mr. Cotham unloaded her groceries from the back of the van on multiple occasions.
Ms. Addington testified that after meeting with the detective, Mr. Cotham asked her to search the internet for "dirt" on the detectives and for information about their families. She said he told her to clear her computer after performing the searches. She said Mr. Cotham told her that he and the Defendant were going to Barbados and invited her to join them. She said that after the homicide, she initially provided Mr. Cotham's alibi, but he later threatened her, and she was afraid of him. A search warrant was executed on her house, and she was named in the warrant as an accessory after the fact. She learned that her then-husband had been interviewed by the police. She decided to cooperate with the authorities to assure her safety.
Jeffrey Walters, Ms. Addington's former husband, testified that he owned a Hi-Point nine-millimeter handgun that disappeared around July 10, 2010. He suspected Ms. Addington had taken it, and he reported it stolen. He did not know any reason Ms. Addington would fear his using the gun on her. He had fired the weapon on his property in Lawrence County, and he helped police look for and recover shell casings there.
Jonathan Schmahl, a former neighbor of Mr. Cotham's, testified that he met the Defendant through Mr. Cotham and did some remodeling work for the Defendant. Mr. Schmahl said Mr. Cotham asked him for assistance obtaining a gun in July 2010, which Mr. Cotham said he wanted for personal protection. Other evidence established that Mr. Cotham was a convicted felon and could not legally purchase or possess a firearm. Mr. Schmahl said Mr. Cotham liked to boast and display money and answered questions indirectly. He told Mr. Cotham he would not obtain a weapon for him. He said Mr. Cotham later came to his apartment with a Hi-Point nine-millimeter handgun in a maroon lunch bag. He said the gun looked like the gun depicted in a photograph that was identified by another witness as a photograph recovered from Mr. Cotham's cell phone. He said Mr. Cotham asked him to clean the gun and asked for his opinion on its value. He said Mr. Cotham claimed to have purchased the gun for $350, which Mr. Schmahl told him was too much. Mr. Schmahl was an Army veteran and was familiar with guns from having been around them all his life. Mr. Schmal said he last saw Mr. Cotham one or two days after Mr. Cotham showed him the gun. He said Mr. Cotham was moving out of the apartment complex and wanted help moving. He later learned Mr. Cotham had been evicted. He said Mr. Cotham called him on August 29, 2010 at 12:28. He said Mr. Cotham stated he was running errands and had seen him. He said that when he received the call, he was on Old Hickory Boulevard near Andrew Jackson Parkway headed toward Madison.
Michael Chad Wilson testified that he knew Mr. Cotham from Mr. Wilson's Game Trader business. He said Mr. Cotham called him on August 29, 2010, at 2:46 p.m. and asked how to take a battery out of an iPhone. He said the call lasted forty-four seconds. He said Mr. Cotham was proud of his cell phone and liked to show it off because of an app he had on it. He said Mr. Cotham referred to himself as "the big man" and often claimed to have a ...