Court of Criminal Appeals of Tennessee, Nashville
Appeal from the Criminal Court for Davidson County No. 2010-A-254 Mark J. Fishburn, Judge
Rob McKinney, Nashville, Tennessee, for the appellant, Thomas Lee Carey, Jr.
Herbert H. Slatery, III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Rob McGuire and Paul Dewitt, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Robert W. Wedemeyer, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Factual and Procedural Background
In March 1998, the Defendant was indicted, along with two other co-defendants, Glenn Daniel Sharber, Jr., and Glenn Daniel Sharber, III, in connection with the 1996 death of Michael Dickerson ("the original indictment"). However, before the State could conduct a transfer hearing in juvenile court for Mr. Sharber, III,  the State's key witness, Roland "Pooh-Bear" Patrick,  was murdered on the front porch of his home. Consequently, the State entered a nolle prosequi on the charges against the Defendant on July 1, 1999. In 2003, detectives with the cold case unit began investigating the case again.
On February 22, 2010, the Defendant was re-indicted for Mr. Dickerson's murder ("the re-indictment"). The re-indictment included three counts: (Count 1) first degree felony murder; (Count 2) first degree premeditated murder; and (Count 3) especially aggravated kidnapping. Four other co-defendants, Glenn Daniel Sharber, Jr., Glenn Daniel Sharber, III, Frank Blair, IV, and Carlos Lemont Lewis were included in the re-indictment. Eventually, the Defendant was severed from his co-defendants and tried separately.
Before severance, the Defendant and both Sharbers filed a Motion to Dismiss for Denial of Speedy Trial ("Motion for Speedy Trial"). The trial court conducted a hearing on the motion at which Mr. Sharber, Jr., and Mr. Sharber, III presented evidence. The Defendant's attorney did not appear at this hearing, and it is unclear whether the Defendant was present.
Hearing on Motion to Dismiss for Denial of Speedy Trial
At the hearing on the Motion for Speedy Trial, Investigator Alfred Gray testified that he reopened the cold case investigation of Michael Dickerson's death in 2003. At the time, the cold case unit was housed in the District Attorney General's office. He actively investigated the case until 2007, when the cold case unit was transferred back to the police department. During the years he investigated the case, Investigator Gray did not uncover enough information to re-indict the defendants.
Investigator Gray explained that the case was reopened in 2003 after a federal prisoner, Eric Yokely, approached the U.S. Attorney's office with some information about Mr. Dickerson's death. His statement provided "more information to investigate" about the original three suspects and provided two more names as suspects for the murder, Frank Blair and Carlos Lemont Lewis. In 2004, Investigator Gray traveled to New York City to interview one of the original complainants, Latoya Nicole Buckner. She did not provide sufficient information to initiate formal proceedings against the defendants, but her information was consistent with what she had told police in 1996. Likewise, Investigator Gray interviewed one of the victim's brothers and Frederick Morris, a person accused of having robbed Mr. Sharber, III. Each provided more information about the crime, but Investigator Gray still did not have enough evidence to present to a grand jury. Finally, during his investigation, Investigator Gray interviewed all the individuals eventually listed in the re-indictment, including the Defendant. None of the suspects provided any information to further the investigation. In summation, Investigator Gray explained that cold cases are difficult to solve and may take years of investigation before an indictment can be sought, and he stated that this case was no different from any other cold case.
Detective Norris Tarkington of the Metro Police Department testified that he picked up the cold case investigation in December of 2007. When he received the file from Investigator Gray, there was "[n]ot a whole lot" of new information in the file. Detective Tarkington also explained neither he nor Investigator Gray had the original 1996 investigation file from Detective Clifford Mann. Detective Tarkington interviewed Mr. Sharber, III, who denied any involvement in Mr. Dickerson's murder. Detective Tarkington noted that he tried to interview Mr. Sharber, Jr., but Mr. Sharber, Jr. refused to make a statement. Detective Tarkington also addressed a few phone numbers he had noted in the file, and he opined that those phone numbers were not part of the original file but instead were numbers that he developed from the time he began investigating the case. In short, he explained that his investigation did not uncover any new physical evidence but it did yield new witnesses.
During the State's cross-examination, Detective Tarkington explained that he interviewed 12 or more witnesses and traveled to Pennsylvania and West Tennessee to do so. Most of those witnesses were interviewed between 2008 and 2009. Many of those witnesses were inmates, and their statements needed to be verified. He stated that he did not purposefully delay the investigation to gain a tactical advantage. Additionally, Detective Tarkington noted that both Mr. Sharber, III, and Mr. Lewis were juveniles at the time of the offenses and the juvenile court had to conduct a transfer hearing before they could be indicted with the other co-defendants. Therefore, Mr. Sharber, III, and Mr. Lewis were arrested in late 2008 and transfer proceedings were initiated. The transfer proceedings caused a delay in the re-indictment, but all five co-defendants were ultimately indicted in 2010.
During this hearing, Mr. Sharber, Jr. and Mr. Sharber, III presented evidence that a number of their alibi witnesses had since passed away. No evidence was presented on the Defendant's behalf.
The record does not contain an order from the trial court's ruling on the Motion to Dismiss for Denial of Speedy Trial. However, during the hearing, the trial court commented:
I'm going to go ahead and assure you right now in terms of a speedy trial, that's not going to go anywhere; the case was dismissed after 15 months when the key eyewitness apparently for the State was killed, and they had the juvenile proceedings, although it was over a year and therefore it triggers the speedy trial analysis, it was three months over the year and then it was dismissed; let's go to the due process issue after the dismissal of the indictment.
The trial court also noted that, while Mr. Yokely's statement was consistent with the evidence underlying the original indictment, it was "new evidence" in the sense that it gave the police information that they had "lost" when Mr. Patrick died. From there, investigators looked into the case and uncovered new witnesses and new suspects.
The record reflects that the Defendant was severed from his co-defendants on the same day as the hearing on the Motion for Speedy Trial.
Motion in Limine
The day before trial, the Defendant filed several motions in limine, including "Defendant, Thomas Carey's, Motion in Limine #2 to Prohibit Introduction and/or Use of Autopsy Report" ("Motion in Limine #2"). The Defendant argued that introduction of the autopsy report would violate his right to confrontation because the doctor who had prepared the report, Dr. Miles Jones, would not be available to testify. After the report was created, Dr. Jones's medical licence was revoked because he over-prescribed medications. Additionally, a Dr. Miles J. Jones was convicted in federal court for failure to file federal tax returns, and the Defendant believed that Dr. Miles J. Jones was the same person who had prepared the autopsy report. The Defendant contended that these facts were significant areas for cross-examination and allowing the State to introduce the report through the testimony of another doctor would impede his right to confront Dr. Jones. Additionally, the Defendant argued that another doctor could not testify as to the results of the autopsy because the other doctor did not have personal knowledge of the results but instead would simply "regurgitat[e]" Dr. Jones's report.
The State argued that the victim's cause of death was not the true issue in the case. Instead, the issue was whether the Defendant was involved in the offense. The Defendant countered that the cause of death was a material issue because analysis of the bullet holes could show what caliber of gun fired the "death shot" and that such information may show whether the Defendant fired the shot that killed Mr. Dickerson. However, the State argued that it did not matter who fired the fatal shot because the Defendant would be criminally responsible for the actions of an accomplice. The trial court denied Motion in Limine #2, agreeing with the State that the cause of death was not a material issue in the case. However, the trial court also held that the jury should be informed of Dr. Jones's background.
At trial, Charles Ray Blackwood, a retired officer from the Metro Nashville Police Department, testified that he had worked as a crime scene investigator for about 23 years. On January 6, 1997, Mr. Blackwood assisted in the investigation of a body found near Sulphur Creek Road, a rural area of Nashville. The body was found at a curve in the road where there is a "flat area" next to the roadway and then the terrain drops off steeply. The location of the crime scene "looked like the city dump" because people would frequently dump "trash, household appliances, old junk car[s], [and] tires" off the embankment. The body was discovered about 60 to 70 feet from the top of the hill, and Mr. Blackwood had to use a rope to navigate his way down the steep hill. When it was discovered, the body was severely decomposed and showed signs of animal or insect infestation. The victim's pants were pulled down, and a shirt appeared to be tied around the victim's ankles or lower calf. It appeared as if the body had been in that location for "a while." No guns, knives, or other weapons were found near the body.
Mr. Blackwood also found four small groupings of shell casings in the flat area next to the road at the top of the hill. In total, Mr. Blackwood found nine shell casings, one of which came from a nine millimeter gun. The remaining shell casings could have been fired from an assault rifle or SKS rifle.
The body was taken from the crime scene to the forensic science center. There, Mr. Blackwood took postmortem fingerprints from the victim and used those fingerprints to identify the victim as Michael Dickerson.
On cross-examination, Mr. Blackwood stated that he did not see blood spatter or any blood trails at the crime scene. However, he acknowledged that rain could have washed a blood trail away. He also confirmed that, based on the shell casings he found on the scene, two types of weapons were fired. It was possible that markings on the shell casings could have been matched to the gun that fired it, but Mr. Blackwood did not know if such tests were conducted in this case.
Co-defendant Carlos Lewis testified that he was 16 years old in 1996 and that he was friends with both the Defendant and Mr. Dickerson at the time. He also stated that Mr. Dickerson had three or four older brothers. Mr. Lewis would often "hang out" with Mr. Dickerson after school, and Glenn Daniel Sharber, III, also known as "Little Danny, " would frequently "hang out" with them as well. Mr. Lewis, Mr. Dickerson, and the Defendant would occasionally spend the night at Mr. Sharber, III's house. Also, all four friends sold drugs on the streets of their neighborhood.
On December 9, 1996, Mr. Dickerson and Mr. Lewis were in the Haynes Park neighborhood selling drugs. They were standing in a neighbor's driveway when Mr. Sharber, III and the Defendant pulled up in a car. From his vantage point, Mr. Lewis was able to see inside the car and noticed that "the radio had been snatched out, the air conditioner was messed up[, ]" and he saw automatic weapons in the car. "[An] AK 47 or SK" was laying "between the seat, " and the Defendant was holding what appeared to be a nine millimeter handgun. Mr. Sharber, III was "pissed off" because Mr. Dickerson's brother, Tony Dickerson, and a person named Terry had stolen the radio from Mr. Sharber, III's car. The Defendant and Mr. Sharber, III wanted Mr. Dickerson to take them to his brother to retrieve Mr. Sharber, III's property. Initially, Mr. Dickerson agreed to help them, and he got into the car. The guns were still in plain view when Mr. Dickerson got into the car. Mr. Lewis got into the car with Mr. Dickerson because he "thought [Mr. Dickerson] might need somebody to go with him because [Mr. Dickerson] looked like he was scared." However, as they drove down the street, Mr. Dickerson told Mr. Sharber, III and the Defendant that he did not want to take them to his brother because they were angry and had guns. As a compromise, Mr. Dickerson offered to call his brother to see if he could reason with him. ...