Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 14, 2015
Appeal from the Criminal Court for Macon County No. 2011-CR-185 David Earl Durham, Judge
G. Jeff Cherry (at sentencing and on appeal), Comer L. Donnell, District Public Defender; Thomas H. Bilbrey and Joe McLerran (at trial), Assistant District Public Defenders, Lebanon, Tennessee; for the appellant, Brian Allen Osborne.
Herbert H. Slatery, III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Tom P. Thompson, District Attorney General; and Justin Harris, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
This case stems from an early morning fire that was started on the back porch of the Defendant's neighbors' home on April 10, 2011. At trial, Danny Hall testified that he lived on Oak Knob Road in Macon County and the Defendant lived across the street. Mr. Hall was at home on the night of April 9, 2011, with his wife and adult son. Around 4:30 a.m. the following morning, Mr. Hall awoke to the sound of his dog barking. When he went into his living room, Mr. Hall saw the Defendant standing in the doorway of his screened-in back porch holding a gas can. The porch was on fire, and the Defendant was throwing gasoline onto the fire, making the flames worse. Mr. Hall quickly returned to his bedroom and told his wife that their house was on fire.
When they went outside to confront the Defendant, Mr. Hall saw that the Defendant had thrown the gas can onto the porch and the gas can had caught fire. The Defendant had a cane in his hand and was leaning against a post. The Defendant did nothing to stop the spread of the fire or attempt to put it out. When Mr. Hall asked the Defendant what he was doing, the Defendant calmly said that he wanted to talk to Jeffrey, Mr. Hall's son. Although the Defendant's voice was clear and understandable, Mr. Hall thought that there was something wrong with the Defendant because he was not acting like himself. The Defendant's eyes were "glassy looking, " and he appeared to be holding himself up with the cane. Mr. Hall told the Defendant that he was not waking up Jeffrey, and he asked why the Defendant wanted to talk to Jeffrey. The Defendant said, "[Jeffrey] was riding the four wheeler up and down the road keeping me awake." When Mr. Hall refused to wake up his son, the Defendant "just turned around and walked off."
Mr. Hall removed the burning gas can from the porch and put it on the sidewalk. The porch fire eventually went out on its own, but the gas can continued to burn. When police arrived, they instructed Mr. Hall to pour water on the gas can to put out the fire. After the fire, Mr. Hall found a box of matches and a cigarette lighter on the back steps leading up to the screened-in porch, and he found a second cigarette lighter by the sidewalk in the back yard. Mr. Hall testified that he did not give the Defendant permission to come to his house and start a fire, and he knew of no one else who would have told the Defendant to do so.
Mr. Hall explained that the fire caused damage to the screened-in porch; it burned holes in the floor and blackened the ceiling, roof, and siding. Mr. Hall had to repaint everything on the porch and pressure wash the ceiling and siding. He also put down rugs to cover the holes that had been burned into the floor.
Priscilla Hall testified that she was in bed on the morning of the fire when her dog began barking around 4:30 a.m. Her husband got up and then returned to the bedroom, saying that their porch was on fire. When Mrs. Hall went outside, she saw the Defendant standing on the back porch. A gas can was on the porch, and the porch and gas can were both on fire. The Defendant's eyes were glazed over, and he was standing back from the flames. The Defendant repeatedly asked to see Jeffrey, but Mrs. Hall told the Defendant that she was not waking up her son. She said that, if he did not get off her porch, she was calling the police. When the Defendant did not move, Mrs. Hall called 911.
Mrs. Hall testified that she and her husband had lived in their house on Oak Knob Road for about six years. Up until that morning, they got along well with the Defendant, who lived across the street. Mrs. Hall testified that because she was inside the house calling police at the time, she did not know who took the gas can off the porch, but she believed that the Defendant had tried to get the gas can off of the porch with his cane.
Deputy Kevin Templeton, with the Macon County Sheriff's Department, testified that he responded to the Defendant's residence after Mrs. Hall's 911 call. Deputy Templeton stayed near the front of the Defendant's house while Deputy Kyle Petty approached an open door at the side of the house. When he heard Deputy Petty yelling at the Defendant, Deputy Templeton came back around the house and helped take the Defendant into custody. The Defendant "was covered in  black soot from the fire." The Defendant was walking with a cane and appeared "disoriented" and "a little slow to react." Deputy Templeton testified, however, that it appeared that the Defendant knew what was going on and was able to comply with officers' commands. After placing the Defendant in a patrol car, Deputy Templeton noticed a truck sitting in the Defendant's driveway that had a siphoning hose hanging out of the gas tank. He also saw several gas cans and tools in the driveway and a box cutter near the front porch that appeared to have been used to cut the siphoning hose.
Deputy Kyle Petty, with the Macon County Sheriff's Department, testified that he arrested the Defendant at his residence on the morning of April 10, 2011. At the time of his arrest, the Defendant had black soot all over him. Deputy Petty also noticed that the Defendant was clammy and sweaty, which the deputy recognized as a possible indicator of methamphetamine use. When Deputy Petty entered the Defendant's house to clear it for safety purposes, he did not see any drugs in plain view.
At the victim's residence, Deputy Petty saw a burned area on the back porch, which he described as "four feet worth of charring about two feet wide, " and a melted gas can on the sidewalk. Mr. Hall told Deputy Petty that the Defendant had attempted to pull the gas can off the porch with his cane after the Halls confronted him. Deputy Petty collected the melted gas can, a box of kitchen matches, and two cigarette lighters from the scene. He then transported the Defendant to jail. The jail refused to admit the Defendant, however, until he was cleared medically so the Defendant was taken to the hospital.
Chris Sanders testified that, around 10:00 p.m. on April 9, 2010, he was "riding around by [himself] drinking" when he spotted a patrol car from the sheriff's department. Mr. Sanders, who admittedly was "well into a half a case of beer" and intoxicated, decided to stop at the Defendant's residence to avoid the officer. While outside the house, Mr. Sanders told the Defendant that he had just seen a patrol car and wanted to stay long enough for the officer to leave the area. When he was speaking to the Defendant, Mr. Sanders noticed that the Defendant seemed "off kilter" and was dressed only in his underwear.
After the two men went inside the Defendant's home, the Defendant asked Mr. Sanders why he had stopped at his house, and Mr. Sanders again told the Defendant that he had stopped because of the patrol car. Mr. Sanders testified that the Defendant was "very agitated" and was "intoxicated of sorts but not by alcohol." Mr. Sanders explained that, while he did not see the Defendant drinking alcohol that night, he saw the Defendant use methamphetamine. The Defendant had the methamphetamine on his kitchen table and "snorted it up his nose" while Mr. Sanders was inside the residence. Mr. Sanders identified the substance as methamphetamine based upon his familiarity and history with the drug. Because of the Defendant's agitated behavior, Mr. Sanders left the residence after about an hour.
The following day, Mr. Sanders heard from his boss that the Defendant had been arrested for setting fire to some property. Mr. Sanders told his boss and several other people that he had been at the Defendant's house the night before. He testified that he did not come forward to police because he had "no idea why the Defendant tried to burn the house." About six or seven months after the incident, however, Mr. Sanders learned that the Defendant was accusing him of putting something into the Defendant's drink the night before the fire. Mr. Sanders then contacted Deputy Petty and told the deputy that he did not give the Defendant any drugs.
On cross-examination, Mr. Sanders stated that he knew nothing about plant food or bath salts, and he firmly denied telling Amanda Osborne that he put anything in the Defendant's beer. Mr. Sanders testified that he did not talk to Ms. Osborne following the Defendant's arrest but that Ms. Osborne sent him a text message, asking what had happened the night of the fire. The following colloquy then took place:
Q: Did you text her back and say, I put some plant food in [the Defendant's] beer?
Q: You didn't tell her that, I didn't think–I didn't want to hurt [the Defendant], but I put some plant food in his beer?
A: Never happened.
Q: Did you ever communicate to her by text or any means whatsoever that you put something, plant food or something in [the Defendant's] beer?
A: So help me by the grace of God, no. That never happened. Those words never left my mouth or texted by my fingers on the phone that that ever happened. Why would I give that man anything?
After the close of the State's case-in-chief, the Defendant made an offer of proof concerning the proposed testimony of his ex-wife, Amanda Osborne. Ms. Osborne testified that she called Mr. Sanders after she learned that he had been at the Defendant's house the night before the fire. During the phone call, Mr. Sanders allegedly told Ms. Osborne, "That they had put salt–some kind of rock salt or something in one of [the Defendant's] beers." Mr. Sanders further said, "That he didn't mean to hurt [the Defendant] and he didn't realize that he would react that way" and that "apparently it caused [the Defendant] to go a little crazy."
The State objected to Ms. Osborne's testimony about Mr. Sanders' alleged statement on the basis of hearsay, but the Defendant argued that the testimony should be admitted for impeachment purposes as extrinsic evidence of a prior inconsistent statement under Rule 613. He asserted that the testimony "goes to [Mr. Sanders'] credibility." The trial court sustained the State's objection, finding that there was no hearsay exception under which the statement could be admitted. The trial court also determined that the statement was not admissible for impeachment purposes under Tennessee Rule of Evidence 613, stating, "It does not go to [Mr. Sanders'] credibility. You're trying to get it in so you can use it to get in an expert witness. That has nothing to do with credibility." The trial court further stated that the Defendant was attempting to get Mr. Sanders' alleged statement "in the back door" and "use it as substantive evidence."
During a separate jury-out hearing, the Defendant called Dr. Greg Elam. Dr. Elam reviewed the Defendant's medical records from his visit to the emergency room on April 10, 2011. The Defendant was given a urine drug screen that showed the Defendant tested positive for amphetamine use. Dr. Elam contacted the manufacturer of the test kit and found out the sensitivity and specificity of the kit. He explained that, because of the sensitivity of the particular test used, it would "pick up either amphetamine salts which can be prescription or a street drug, or methamphetamine salt or a variety thereof." Dr. Elam testified that he was familiar with bath salts, which he described as synthetic amphetamines. He testified, however, that it was "unknown" whether the test that the Defendant was given would register amphetamine use based upon the Defendant's ingestion of bath salts. Dr. Elam stated:
Most of the bath salts are so new that there hasn't been enough testing. In fact, they've not done specific testing. I talked to the company about this and they've not done specific testing with some of the more common bath salts.
Following this testimony, the trial court found that Dr. Elam's proposed testimony regarding bath salts did not satisfy the requirements for admission under Rule 702 of the Tennessee Rules of Evidence. The court found that testimony on the Defendant's possible ingestion of bath salts would be speculative as the doctor testified that there had not been sufficient testing on bath salts to reach any conclusions from the particular drug test in evidence. The trial court further ruled that the Defendant could not ask Dr. Elam about the behavior of people on bath salts until there was evidence presented that the Defendant had used bath salts.
Defendant's Proof at Trial
Amanda Osborne, the Defendant's ex-wife, testified that on April 9, 2011, the Defendant took her to work at the Hartsville Convalescent Center between 10:30 p.m. and 11:00 p.m. Ms. Osborne explained that, when he took her to work that night, the Defendant was fine. He spoke clearly and had no problems operating a car. While at work, Ms. Osborne and the Defendant communicated normally by text message until about 1:00 a.m. Ms. Osborne stated that, at that time, the Defendant "seemed fine." When she got off of work at 7:00 a.m the following morning, however, the Defendant was not there to pick her up. Ms. Osborne got a ride from a friend and went to the Defendant's residence. She saw that the Defendant's power tools were in the yard, which was unusual, and his truck had been left open. Ms. Osborne's SUV was sitting in the yard with the engine running. Ms. Osborne testified that she never saw the Defendant use illegal drugs when they lived together.
Jennifer McGuffey, an LPN working at the Macon County jail, testified that on the morning of April 10, 2011, Sergeant Sharon Rackey called her at home. Sergeant Rackey informed Ms. McGuffey that there was an individual at the jail who "wasn't acting right" and was possibly under the influence of an intoxicant. When Ms. McGuffey responded to the jail around 6:30 a.m., she saw the Defendant, whom she knew, sitting on a bench in the booking room. The Defendant was sweating and appeared to be hot. The Defendant's mouth was dry, and he had a white film covering his tongue. The Defendant acted scared and appeared to be hallucinating. At one point, he told Ms. McGuffey, "[C]ome on, Jennifer, we gotta get out of here." Based upon her examination, Ms. McGuffey determined that the Defendant was under the influence and sent him to Macon County General Hospital for medical clearance. After the Defendant returned to the jail around 8:45 a.m., Ms. McGuffey received a discharge report from the hospital, indicating that the Defendant's urine screen was positive for amphetamine use. The report stated that the Defendant had been angry while answering questions posed by hospital staff but he acted appropriately otherwise.
Michael Duffer, a corrections officer with the Macon County Sheriff's Department, testified that he was working at the jail when the Defendant was brought in on the morning of April 10, 2011. Deputy Duffer recalled that the Defendant smelled of alcohol and smoke and the Defendant's clothes had ash on them. The Defendant could not stand on his own and seemed disoriented. The Defendant did not know who he was or where he was, and he did not recognize Deputy Duffer, despite the fact that they had known each other for 15 years. Deputy Duffer testified that the Defendant continued to seem disoriented for several days after his arrest.
Deputy Scotty Sutton testified that he was on duty at the Macon County jail when the Defendant was brought in. Because it appeared that the Defendant was "under the influence of something" and "pretty intoxicated, " Deputy Sutton and another officer helped the Defendant out of Deputy Petty's patrol car and brought him into the booking area. Deputy Sutton testified that, once inside the booking area, the Defendant seemed to be hallucinating. The Defendant asked to speak to Deputy Ethridge, but he was told that Deputy Ethridge did not work on weekends. The Defendant then insisted that he had just talked to Deputy Ethridge in the basement of the jail even though the jail had no basement. Deputy Sutton testified that it took several days before the Defendant could speak with clarity.
Melissa Smith, an office manager and nurse at Dr. Bowden Smith's office in Carthage, Tennessee, testified that Dr. Smith began treating the Defendant in 2009. Ms. Smith explained that the Defendant was drug tested once a month in order to ensure that the Defendant was taking his medications as directed. The Defendant took a drug test on March 21, 2011, and the test did not indicate positive for amphetamine use.
Dr. Greg Elam testified that he had reviewed the medical records from the Defendant's emergency room visit the day of his arrest. Dr. Elam explained that the Defendant was given a urine test to screen for drugs and, according to the drug screen, the Defendant tested positive for amphetamines. Dr. Elam explained that the "amphetamines" result would include both amphetamine and methamphetamine because the particular test used by the hospital was designed to pick up both amphetamine and methamphetamine use.
Dr. Elam noted several clinical indicators that the Defendant had amphetamine or methamphetamine in his system the morning of his arrest. The Defendant was uncooperative and angry. His blood pressure was up, his pulse rate was irregular, and his potassium was low. Dr. Elam explained that these findings were consistent with someone being treated for stimulant abuse. Regarding the effects of amphetamine and methamphetamine on individuals, Dr. Elam testified that the drugs caused feelings of excitement, euphoria, omnipotence, and power. At higher doses, an individual could experience hallucinations, delusions or extreme paranoia and turn aggressive or violent.
On cross-examination, Dr. Elam testified that the Defendant's behavior at the jail was consistent with use of amphetamine or methamphetamine and that the lab report findings were consistent with the Defendant's having snorted methamphetamine the night before. He stated that methamphetamine could make an individual more angry and upset about things but would not prevent an individual from doing simple tasks. Dr. Elam ...