Court of Criminal Appeals of Tennessee, Knoxville
Session October 21, 2014
Appeal from the Criminal Court for Knox County No. 86216BWalter C. Kurtz, Judge
The defendant, Lemaricus Devall Davidson, appeals the Knox County Criminal Court jury convictions of two counts of first degree murder, two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, three counts of aggravated rape, and one count of facilitation of aggravated rape that he received for his role in the January 2007 deaths of C.N. and C.C. The defendant claims that: the trial court erred by refusing to suppress evidence obtained during the searches of his residence, his statements to the police following his arrest, and evidence obtained during searches of his person; the trial court erred by admitting into evidence postmortem photographs of the victims; the trial court should have excluded testimony and evidence regarding fingerprint examination and ballistics testing; the trial court erred by permitting courtroom spectators to wear buttons emblazoned with photographs of the victims during the guilt phase; the State violated his constitutional rights by intercepting and examining privileged communications to and from his attorneys; structural constitutional error occasioned by the out-of-court behavior of the trial judge entitles him to a new trial; the second successor trial judge erred by concluding that he could fulfill the statutory duty of thirteenth-juror review; the evidence was insufficient to support his convictions; errors related to the presentment require dismissal of the charges; the trial court erred by permitting jurors to submit questions for the witnesses; the trial court erred by allowing spectators to remain in the courtroom while jurors reviewed the defendant's videotaped statement as part of their deliberations; the trial court should have dismissed the presentment due to constitutional deficiencies in the jury venire; the trial court erred by refusing to allow him to present evidence of the economic costs associated with the implementation of the death penalty; and the trial court erred by excusing those jurors who were not "death qualified." The defendant also raises a number of challenges to the death penalty in general and its application in this case specifically. Because we conclude that no reversible error attends the convictions or sentences in this case and because it is our view, after a mandatory review, that the sentences of death imposed in this case were not disproportionate, we affirm the judgments of the trial court. We detect, however, clerical errors that require that the case be remanded for entry of corrected judgment forms.
David M. Eldridge and Douglas A. Trant, Knoxville, Tennessee, for the appellant, Lemaricus Devall Davidson.
Herbert H. Slatery III, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Randall E. Nichols, Assistant District Attorney General; and Leland Price and Takisha Fitzgerald, Assistant District Attorneys General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE.
The Knox County Grand Jury charged the defendant, George Thomas, Letalvis Cobbins, and Vanessa Coleman with eight counts of the first degree felony murder of C.N., eight counts of the first degree felony murder of C.C., one count of the first degree premeditated murder of C.N., one count of the first degree premeditated murder of C.C., one count of the especially aggravated robbery of C.N., one count of the especially aggravated robbery of C.C., two counts of the especially aggravated kidnapping of C.N., two counts of the especially aggravated kidnapping of C.C., five counts of the aggravated rape of C.N., 15 counts of the aggravated rape of C.C., one count of theft of property from C.C. valued at $10, 000 or more but less than $60, 000, and one count of theft of property from C.N. valued at less than $500.
The defendant's case proceeded to trial in October 2009, and the evidence adduced at that trial established that on December 28, 2006, Stacy Lawson, the girlfriend of Mr. Thomas, drove Mr. Thomas, Mr. Cobbins, and Ms. Coleman from Kentucky to the defendant's residence at 2316 Chipman Street ("Chipman Street residence") in Knoxville. Ms. Lawson returned to Kentucky on January 2, 2007, but the others remained at the Chipman Street residence. Daphne Sutton, who was the defendant's girlfriend at the time and who had been living in the Chipman Street residence with the defendant, moved out of the Chipman Street residence on January 5, 2007. Mr. Thomas, Mr. Cobbins, Ms. Coleman, and the defendant remained at the Chipman Street residence.
On Saturday, January 6, 2007, C.N. and C.C. made plans to meet at the Washington Ridge Apartments in Knoxville, go out to dinner, and then join friends at a party. When the couple did not arrive at the party by 10:00 p.m., their friends called and sent messages to the victims' cellular telephones. At approximately 11:00 p.m., two of those friends drove to the Washington Ridge Apartments, where C.C. had last been seen, and discovered C.N.'s truck parked in the parking lot. C.C.'s silver Toyota 4Runner was gone, which struck the friends as odd because the couple typically traveled in C.N.'s truck. Further attempts throughout the night to contact C.N. and C.C. via telephone proved unsuccessful.
At approximately 12:30 a.m. on Sunday, January 7, 2007, C.C. telephoned her parents and told her father that she would be home later after watching a movie. C.C.'s mother stayed up to await her daughter's arrival. When C.C. did not arrive home by 3:30 a.m., C.C.'s mother called C.C.'s cellular telephone but received no answer. C.C.'s mother fell asleep at approximately 6:00 a.m., but when she awoke a few hours later, she resumed calling C.C.'s cellular telephone.
Although they had initially assumed that C.N. had spent the night of January 6, 2007, at a friend's house, C.N.'s parents became concerned for his safety after C.C.'s mother informed them that C.C. had not arrived for work. They checked the local hospitals and stayed by the telephone throughout the day and evening but heard no word of the whereabouts of either victim.
At 12:20 p.m. on Sunday, January 7, a train engineer with Norfolk Southern Corporation discovered the badly burned and partially nude body of a 20- to 25-year-old man near the train tracks at Cherry Street. At approximately 8:30 a.m. on the following morning, the body was identified as C.N.
When C.C. did not arrive for work as scheduled on the afternoon of January 7, 2007, her family began to search for her. Utilizing information from C.C.'s cellular telephone service carrier, they learned that the telephone had last been used at approximately 12:30 a.m. in the Cherry Street area of Knoxville. Family and friends, with the help of a friend who was a former member of law enforcement, organized a grid search of the Cherry Street area. At 1:30 a.m. on Monday, January 8, 2007, members of the search party discovered C.C.'s silver Toyota 4Runner abandoned at the corner of Chipman and Glider Streets. Knoxville Police Department ("KPD") Senior Evidence Technician Daniel Crenshaw arrived approximately one-half hour later and performed the preliminary processing of C.C.'s vehicle at the scene. He photographed the vehicle and dusted the exterior for fingerprints before having the car towed to the police impound lot. No further processing was conducted on the vehicle until later that evening.
Witnesses who worked or lived near the Chipman Street residence testified that a lot of activity occurred near the residence shortly after midnight on Sunday, January 7, 2007. One witness recalled having seen four black individuals in a Toyota 4Runner at approximately 12:30 a.m., which vehicle the witness saw parked near the railroad tracks later that morning. Another witness heard "three loud pops" at approximately 1:45 a.m. on Sunday morning. A third witness saw smoke rising from the area of the railroad tracks at 7:45 a.m. on January 7, 2007.
When Mr. Crenshaw returned to work at 11:00 p.m. on Monday, January 8, he collected a bank envelope from the back seat of C.C.'s 4Runner and processed it for fingerprints. At 2:45 a.m. on Tuesday, January 9, Mr. Crenshaw identified the fingerprint he discovered on the envelope as belonging to the defendant. He then determined the defendant's address to be 2316 Chipman Street. Mr. Crenshaw notified Investigator Todd Childress of the preliminary fingerprint identification. Tim Schade, another KPD evidence technician, verified the fingerprint identification at approximately 8:00 a.m. on January 9.
At 12:53 p.m. on Tuesday, January 9, 2007, Investigator Childress obtained a warrant to search the Chipman Street residence. Officers entered the residence at 1:39 p.m. and three minutes later, while securing the scene, discovered C.C.'s body in a large trash can in the kitchen. Doctor Darinka Mileusnic-Polchan, Knox County Medical Examiner, arrived at the residence at 2:04 p.m. and directed that the trash can with C.C.'s body inside it be transported to the medical examiner's office.
On Thursday, January 11, 2007, officers arrested the defendant at an abandoned house in the Western Heights area of Knoxville. Following an admonition and waiver of rights, the defendant gave a two-and-one-half-hour statement concerning the robbery, kidnapping, rape, and murder of the victims. Although the defendant initially denied being present at the Chipman Street residence during the preceding weekend, he ultimately admitted that he had some interaction with C.C. but denied having had sex with her. He specifically denied having met either of the victims before January 6, 2007.
Special Agent Robert Watson of the Tennessee State Fire Marshal's Office detected the presence of an accelerant in the soil near C.N.'s body. Agent Watson gathered samples of the soil, and testing performed by the Tennessee Bureau of Investigation ("TBI") confirmed the presence of gasoline in the soil samples.
Mr. Crenshaw's analysis of items recovered during the search of the Chipman Street residence revealed the defendant's fingerprints on three of the five trash bags that had contained C.C.'s body. Witnesses identified other items found in the home – articles of clothing, notes, documents, the contents of a purse, and a personalized iPod – as belonging to C.C. Additionally, C.N.'s mother identified a pair of Nike Shox shoes as those purchased by C.N. six weeks before his death. Various associates of the defendant testified that they had received from the defendant clothing items later identified as belonging to C.C.
Witnesses testified that the defendant had possessed the guns discovered during the search of the Chipman Street residence. Ballistics testing to match those guns with bullets recovered from C.N.'s body produced inconclusive results.
Deoxyribonucleic acid ("DNA") analysis established the presence of the defendant's semen in C.C.'s vagina and rectum and on her blue jeans. Mr. Cobbins' DNA was found in C.C.'s mouth and on her blue jeans, sweater, and tank top. DNA testing of the floral fabric used to bind C.C. established the presence of DNA belonging to C.C., Mr. Cobbins, and Ms. Coleman. Forensic testing performed on the anal swab conducted during C.N.'s autopsy established the presence of semen, but the only DNA profile identified in that sample belonged to C.N.
Doctor Mileusnic-Polchan performed an autopsy of both victims. C.N. had been bound at the ankles by a belt and a strip of fabric and at the wrists with "something like a shoelace." He had also been blindfolded and gagged, and his head had been wrapped in a sweatshirt. Based upon the location of unburned skin on his body, she determined that he had been wrapped in "some sort of comforter and placed face up" before being set on fire. C.N. suffered three gunshot wounds. A contact gunshot wound to his head severed his brain stem, causing "instantaneous death." A gunshot wound "between the back of the neck and the shoulders" did not "cause any major damage." Another gunshot wound entered C.N.'s back and traveled "steeply upward" where it caused severe damage to his spinal chord. Lacerations, abrasions, and bruising in the area of C.N.'s anus indicated anal penetration that occurred before his death. Dirt and soil on C.N.'s feet indicated that he had been walking barefoot before his death. C.N.'s blood tested positive for the presence of amphetamines, alcohol, and marijuana.
C.C.'s body was inside the trash can, and strips of fabric had been used to bind her body into a fetal position. A small plastic bag had been tied around her head, and then her body had been placed in five different large garbage bags before being placed into the trash can. She was nude from the waist down. The autopsy findings indicated that C.C. died inside the trash can of a combination of positional asphyxiation due to the position of her body, suffocation due to the plastic bag on her face, and mechanical asphyxiation due to being placed in the confined space of the trash can with bedding. Blood and other fluids were smeared around her abdomen and upper chest. She suffered "excoriations" – "like a carpet burn" – to her lower back and upper buttocks. C.C.'s anogenital region sustained "tremendous damage." She had tears to her vagina and rectum as well as severe blunt force trauma to the area. Doctor Mileusnic-Polchan explained,
[T]he whole area was just a blunt-force trauma which is bruising, contusion, and abrasions, and lacerations. . . . The depth of the injury was so grave that there's no way that just a regular rape could – could inflict this. . . . [T]his is an object coming in contact with the body to inflict the serious injury of this kind.
C.C. also suffered blunt force trauma to her head, contusions on her shoulders, bruising on her arms, and a small cut on her hand. She suffered a torn frenulum, which was likely caused by something being forcefully put into her mouth. C.C.'s blood was negative for drugs and alcohol.
Based upon this evidence, the jury found the defendant guilty of 16 counts of felony murder, two counts of premeditated murder, two counts of especially aggravated robbery, four counts of aggravated kidnapping, nine counts of the aggravated rape of C.C., three counts of facilitation of the aggravated rape of C.N., one count of theft of property valued at $10, 000 or more but less than $60, 000, and one count of theft of property valued at less than $500. The trial court merged the jury verdicts of felony murder and premeditated murder into one count of felony murder and one count of premeditated murder for each victim and proceeded to the penalty phase of the trial.
During the penalty phase, the State presented evidence of the defendant's prior conviction of aggravated robbery in support of the prior violent felony aggravating circumstance. C.N.'s sister, mother, and father testified concerning the impact of C.N.'s death on their family. Similarly, C.C.'s brother and mother testified concerning the impact of C.C.'s death on their family.
The defendant presented evidence through the testimony of a mitigation specialist, Rosalind Andrews, concerning the multi-generational history of "violence, incest, and alcohol abuse" that permeated the defendant's family. Family members testified that the defendant's mother suffered a history of mental illness, drug addiction, and prostitution.
Alice Rhea testified that she and her husband had operated a group home for troubled teenaged boys and that the defendant had lived in the group home for some time. She recalled that the defendant stayed longer than was customary because his placement in the home had been "forgotten." Ms. Rhea introduced the defendant to the Rudd family in hopes that they might remove the defendant from bad influences in Memphis. She recalled that the defendant "had such potential. He was a thrown away child."
Members of the Rudd family testified that the defendant lived with them for approximately one-and-one-half years while still in high school and before his conviction of aggravated robbery. The Rudds testified that the defendant was helpful and respectful and excelled as an athlete while enrolled in a Jackson private school with their son. The defendant was asked to leave their home, however, when the Rudds discovered that he had been using marijuana. The Rudds asked that the jury be "merciful enough to let [the defendant] live."
Doctor Peter Brown testified that the defendant's early childhood presented all the psychological risk factors for future violent behavior, creating a "statistical inevitability" that he would engage in violent behavior as an adult. Doctor Brown testified that the defendant was of above-average intelligence and that he presented a low risk for violence in a structured setting. He opined, however, that "all bets are off" concerning the defendant's violent behavior when under the influence of drugs or alcohol.
Based upon the proof presented during both the guilt and penalty phases of the trial, the jury found that the murders were "especially heinous, atrocious, or cruel, in that" the murders "involved torture or serious physical abuse beyond that necessary to produce death, " see T.C.A. § 39-13-204(i)(5); that the murders were "committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, " see id. § 39-13-204(i)(6); and that the murders were "knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit" an aggravated robbery, aggravated kidnapping, aggravated rape, or theft, see id. § 39-13-204(i)(7). Additionally, with respect to the murder of C.N., the jury found that the defendant "knowingly mutilated the body of the victim after death." See id. § 39-13-204(i)(13). The jury further determined that these aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt and imposed sentences of death for each conviction of first degree murder. The trial court then further merged offenses and sentences into two convictions of first degree murder and two sentences of death.
Following a sentencing hearing, the trial court merged the two jury verdicts of especially aggravated kidnapping of C.N. into one conviction of especially aggravated kidnapping and imposed a sentence of 40 years for that conviction. The trial court also merged the jury verdicts of facilitation of aggravated rape of C.N. into a single conviction and imposed a sentence of 20 years. The court merged the jury verdict of theft of property valued at $500 or less into the conviction of the especially aggravated robbery of C.N. and imposed a sentence of 40 years. The court ordered that the sentences be served concurrently with one another and to the sentence of death imposed for the murder of C.N.
The trial court merged the jury verdicts of the especially aggravated kidnapping of C.C. into a single conviction of especially aggravated kidnapping and imposed a sentence of 40 years. The court merged the nine convictions of the aggravated rape of C.C. into three convictions of the aggravated rape of C.C. and imposed sentences of 40 years for each conviction. The court merged the conviction of the theft of property valued at $10, 000 or more but less than $60, 000 into the conviction of the aggravated robbery of C.C. and imposed a 40-year sentence. The court ordered that the sentences be served concurrently to one another and concurrently to the sentence of death imposed for the murder of C.C. The trial court ordered that the sentences of death for the murders of the victims be served consecutively.
In a timely motion for new trial, the defendant alleged 58 separate grounds for relief. Before the motion could be heard, however, the trial judge "resigned from the bench after pleading guilty to one count of official misconduct." State v. Letalvis Cobbins, Lemaricus Davidson, and George Thomas, No. E2012-00448-SC-R10-DD (Tenn. May 24, 2012) (Order) ("Rule 10 Order"). The first successor trial judge "determined that he could not perform the thirteenth-juror review because the credibility of the original trial judge had been called into question by his misconduct outside the courtroom" and that "the original trial judge's misconduct constituted structural error" and granted the defendant's motion for new trial. See id. Upon review pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure, our supreme court concluded that the first successor judge had erred by considering the trial judge's credibility as part of his thirteenth-juror review and by concluding that the trial judge's out-of-court conduct amounted to structural error requiring a new trial. See id. The high court vacated the order granting the defendant a new trial and remanded the case for the first successor judge "to determine expeditiously, under the standards articulated herein, whether he is able to fulfill his duty to perform thirteenth-juror review." See id.
Upon remand, the first successor trial judge again concluded that he was unable to perform the statutorily required review as thirteenth juror, and the State moved the first successor judge to recuse himself. The first successor judge denied the State's recusal motion, and this court granted the State's application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We concluded that the first successor judge erred by denying the State's recusal motion and ordered him recused from the case.
Our supreme court then appointed Judge Kurtz as the second successor trial judge. Judge Kurtz determined that he could perform thirteenth-juror review and then denied the defendant's motion for new trial. The defendant then filed a timely notice of appeal.
In this appeal, the defendant alleges that: the trial court erred by denying his motion to suppress evidence obtained during the searches of the Chipman Street residence; the trial court erred by denying his motion to suppress his statements to the police following his arrest; the trial court erred by denying his motion to suppress evidence obtained during searches of the defendant's person on January 19, 2007, and March 13, 2008; the trial court abused its discretion by admitting into evidence photographs taken of the victims after their deaths; the trial court erred by denying his motion to exclude testimony and evidence related to fingerprint examination; the trial court erred by denying his motion to exclude testimony and evidence related to the results of ballistics testing; the trial court erred by permitting courtroom spectators to wear and display buttons depicting the victims during the guilt phase of the trial; the State violated the defendant's constitutional rights by intercepting and examining privileged communications between the defendant and his attorneys; structural constitutional error occasioned by the out-of-court behavior of the trial judge entitles him to a new trial; the second successor trial judge erred by concluding that he could fulfill the statutory duty of thirteenth-juror review; the evidence was insufficient to support his convictions; the presentment was constitutionally insufficient; the presentment failed to adequately charge the defendant with liability for the offenses under a theory of criminal responsibility; the trial court erred by permitting jurors to submit questions for the witnesses; the trial court erred by permitting the jury to review the defendant's video-recorded pretrial statement to police in open court during its deliberations; the trial court erred by denying the defendant's motion to dismiss the presentment based upon the "unconstitutional composition of the jury venire"; the trial court erred by excluding evidence of the economic costs of the death penalty; the economic costs of the death penalty render it unconstitutional; the trial court erred by excluding those potential jurors who were not "death qualified"; imposition of the death penalty in this state violates various constitutional provisions; the State's Notice of Intent to Seek the Death Penalty was invalid because it was not returned by a grand jury; the sentence of death should be set aside based upon "gross racial disproportionality" in the imposition and execution of the death penalty; existing procedures for the imposition of the death penalty fail to meet minimum constitutional standards as described by the Supreme Court; the imposition of the death penalty in this case violates the defendant's constitutional rights to substantive due process and equal protection under the law; the sentence of death was unconstitutional because the aggravating circumstances alleged by the State and found by the jury were not subjected to grand jury review; and the presentation of victim impact evidence during the penalty phase violated the defendant's right to due process and rendered the hearing fundamentally unfair. We consider each of the defendant's claims although not necessarily in the order presented.
I. Structural Error
We consider first the defendant's claim of structural error based upon the out-of-court behavior of the trial judge because the judge's behavior, his subsequent plea of guilty to criminal charges and resulting resignation, and the media frenzy that those events created have loomed large over what was an already highly-publicized case. As indicated above, after the trial judge resigned from the bench following his plea of guilty to official misconduct, the defendant then sought a new trial based upon his claim that the trial judge's misconduct constituted structural error. Our supreme court concluded that the record did not support a conclusion that the trial judge's out-of-court misconduct had resulted in structural error requiring a new trial. See Rule 10 Order, slip op. at 3-4. In this appeal, the defendant revives his claim of structural error and argues that our supreme court erred by requiring a showing of prejudice under the circumstances of this case. The State asserts that the law-of-the-case doctrine prohibits this court from making a ruling on this issue.
Like our supreme court, we do not condone or excuse the trial judge's out-of-court malfeasance. That being said, our supreme court has held that "a trial judge's out-of-court misconduct, by itself" does not "constitute structural error unless there is proof that the misconduct affected the trial proceedings." Rule 10 Order, slip op. at 3 (citing State v. Benson, 973 S.W.2d 202, 206 (Tenn. 1998)). Our supreme court concluded that although the trial judge's out-of-court misconduct in this case was reprehensible, the record contained no proof that his misconduct "affected the integrity of the trials." Rule 10 Order, slip op. at 4. Two important principles of law prohibit us from revisiting that ruling.
First, the law-of-the-case doctrine prevents this court from considering the defendant's claim of structural error because that issue was already decided by our supreme court in a previous appeal in the same case. Our supreme court addressed the law-of-the-case doctrine in great detail in Memphis Publishing Company v. Tennessee Petroleum Underground Storage Tank Board:
The phrase "law of the case" refers to a legal doctrine which generally prohibits reconsideration of issues that have already been decided in a prior appeal of the same case. In other words, under the law of the case doctrine, an appellate court's decision on an issue of law is binding in later trials and appeals of the same case if the facts on the second trial or appeal are substantially the same as the facts in the first trial or appeal. The doctrine applies to issues that were actually before the appellate court in the first appeal and to issues that were necessarily decided by implication. The doctrine does not apply to dicta.
The law of the case doctrine is not a constitutional mandate nor a limitation on the power of a court. Rather, it is a longstanding discretionary rule of judicial practice which is based on the common sense recognition that issues previously litigated and decided by a court of competent jurisdiction ordinarily need not be revisited. This rule promotes the finality and efficiency of the judicial process, avoids indefinite relitigation of the same issue, fosters consistent results in the same litigation, and assures the obedience of lower courts to the decisions of appellate courts.
Therefore, when an initial appeal results in a remand to the trial court, the decision of the appellate court establishes the law of the case which generally must be followed upon remand by the trial court, and by an appellate court if a second appeal is taken from the judgment of the trial court entered after remand. There are limited circumstances which may justify reconsideration of an issue which was [an] issue decided in a prior appeal: (1) the evidence offered at a trial or hearing after remand was substantially different from the evidence in the initial proceeding; (2) the prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand; or (3) the prior decision is contrary to a change in the controlling law which has occurred between the first and second appeal.
Memphis Publ'g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998) (citations omitted). None of the delineated exceptions apply here. The defendant offered no new evidence following the remand by our supreme court, and there has been no change in the controlling law. Moreover, we cannot say that the ruling of our supreme court was "clearly erroneous." In consequence, the law-of-the-case doctrine requires that we adhere to the ruling of our supreme court that the out-of-court misconduct of the trial judge did not constitute structural error in this case.
Second, even assuming for the sake of argument that we disagreed with the previous ruling of our supreme court, we lack the authority to overturn the ruling because the allocation of judicial power in this state forbids us from doing so. Our supreme court "is a direct creature of the [state] Constitution and constitutes the supreme judicial tribunal of the state and is a court of last resort." Barger v. Brock, 535 S.W.2d 337, 340 (Tenn. 1976). This court and "[a]ll other courts are constitutionally inferior tribunals subject to the actions of the Supreme Court." Id. The adjudications of the supreme court "are final and conclusive upon all questions determined by it, subject only to review, in appropriate cases by the Supreme Court of the United States." Id. (citing Railroad v. Bryne, 104 S.W. 460 (1907)).
Accordingly, because our supreme court has already ruled that the malefactions of the trial judge did not occasion structural error in this case, we cannot consider the issue in this appeal.
II. Motion to Suppress Evidence Obtained During the January 9, 2007 Searches of the Chipman Street Residence
The defendant asserts that the trial court erred by denying his motion to suppress the evidence obtained during the searches of his Chipman Street residence on January 9, 2007, which evidence included the body of C.C. He claims, as he did in his pretrial motion, that the first search warrant executed at the Chipman Street residence on that day was invalid because the affidavit in support of the warrant did not bear the signature of the affiant. He also claims that because evidence discovered during the execution of the first warrant was included in the affidavit in support of the second warrant, the second warrant executed that day was also invalid. The State contends that the defendant lacks standing to challenge either warrant because he had abandoned the Chipman Street residence by the time the first warrant was executed, that the first warrant was valid despite the signature irregularity, that a previously-issued attachment for the defendant's arrest authorized entry into the Chipman Street residence independently from the challenged search warrants, that exigent circumstances justified the entry into the residence, and that admission of the challenged evidence at trial was authorized by both the inevitable discovery and independent source doctrines. As is discussed more fully below, it is our view that the inevitable discovery doctrine supported admission of the evidence obtained during the first search of the Chipman Street residence despite the invalidity of the first search warrant issued on January 9, 2007. We conclude that the second warrant was valid. Consequently, we affirm the trial court's denial of the defendant's motion to suppress.
The trial court held a hearing on the defendant's motion that spanned several days over the course of some months.
Investigator Todd Childress testified that on Sunday, January 7, 2007, he responded to a call that "[a] body had been located next to the railroad tracks behind 1701 Whittle Springs." The body was removed from the scene by the medical examiner's office, and Investigator Childress returned to the police station to examine missing person's reports. When he read the reports related to the disappearance of the victims in this case, he noticed immediately that the body matched the description of C.N. He recalled that because KPD Sergeant Tim Snoderly indicated that he knew C.N. personally, Sergeant Snoderly was asked to make the identification on the following morning. Investigator Childress explained that no attempt was made to identify the body that day because it was a Sunday.
Investigator Childress testified that C.C.'s family and friends located her 4Runner in the early morning hours of Monday January 8, 2007, at the intersection of Chipman and Glider Streets. He said that the vehicle was located approximately 400 yards from where C.N.'s body had been discovered. At some point early that Monday morning, Investigator Childress went off duty. Later that same morning, he returned to work and accompanied Sergeant Snoderly to the medical examiner's office to identify C.N.'s body. The two then went to inform C.N.'s parents of his death.
Investigator Childress testified that he then met with the "search and recovery team" and ordered the search and recovery officers to canvas the area where the 4Runner and C.N.'s body had been found looking for C.C. or "anything that doesn't belong there." Investigator Childress went off duty just after midnight on Tuesday, January 9, 2007. At approximately 3 a.m. on Tuesday, January 9, 2007, he received a telephone call from Mr. Crenshaw, who reported to him the discovery of the defendant's fingerprint on a bank envelope recovered from C.C.'s 4Runner. After the fingerprint was verified that morning, Investigator Childress "started pulling any type of report, pictures, criminal histories, anything . . . on Lemaricus Davidson." One of the items he discovered was an attachment issued for the defendant's failure to appear for a court date. Investigator Childress noted that the address listed on the defendant's driver's license, 2316 Chipman Street, was "150 yards from" the location where C.N.'s body was discovered and "less than a block and a half from where the car was located." After he had gathered all the information, he spoke with Investigator Steve Still to determine how they should proceed.
Investigator Childress said that a decision was made to apply for a warrant to search the Chipman Street residence because "if she [was] deceased, you know, we want[ed] to try to do this right." He said that they hoped at that point to find C.C. alive. He recalled that an officer had driven by the Chipman Street residence and determined the house to be empty. Investigator Childress testified that he typed the affidavit in support of the warrant and the warrant itself and that it took him "probably a couple of hours, at least." He said that he did not notice any irregularities when he printed the documents, stating, "[W]e were just in a hurry to get it signed . . . so we could execute the search warrant." He took the warrant to the City-County Building where he met with an assistant district attorney, and they presented the warrant to Knox County General Sessions Court Judge Tony W. Stansberry. Investigator Childress said that Judge Stansberry "looked through it, you know." He said that Judge Stansberry placed him under oath and that he "swore to" the statements in the affidavit. He said that he then "signed it, handed it back to [Judge Stansberry], and he affixed his signature on it." The warrant indicates that it was issued at 12:53 p.m. on Tuesday, January 9, 2007.
After he obtained the search warrant, Investigator Childress met with officers in a parking lot near the Chipman Street residence. There he distributed a photograph of the defendant, and all the officers proceeded to the Chipman Street residence. Investigator Childress insisted that he intended to serve the attachment on the defendant as well as execute the search warrant, despite that he did not ask Judge Stansberry to issue an arrest warrant based upon the attachment and that he did not take the attachment with him to the residence.
Investigator Childress said that officers approached the residence and then knocked and announced their presence. He recalled that "the door was not latched, or it's partially ajar." Officers entered the residence at 1:39 p.m. and made a visual inspection of each room as they moved throughout the residence to secure the premises. At 1:42 p.m., Sergeant Keith Debow called out that he had discovered C.C.'s body in the kitchen of the residence inside a trash can.
At that point, Investigator Childress contacted the medical examiner's office, and representatives from that office arrived a short time later. Doctor Mileusnic-Polchan declared C.C. deceased and indicated that the body should be transported to the medical examiner's office inside the trash can. While preparations were being made for the transport of the body, officers did not conduct a "rigorous search" but continued to look around the residence. C.C.'s body was removed from the scene "a little after three." Officers then began their search in earnest, immediately discovering C.C.'s iPod "laying on top of a container."
Shortly thereafter, Investigator Childress received a telephone call from Assistant District Attorney General Kevin Allen, who told Investigator Childress that there was a problem with the warrant and that they should stop searching and leave the residence. Investigator Childress said that he ordered the officers to stop searching, and they all left the residence. Some officers remained behind outside the Chipman Street residence while Investigator Childress went to meet with General Allen.
Investigator Childress explained that the signature line of the affidavit for the first search warrant had been "cut off" because he had "printed on 8 1/2 by 11 paper instead of legal paper." He said that he signed the warrant on the second page in the blank designated "for the officer to whom warrant is delivered." He said that he did not realize when he presented the affidavit to Judge Stansberry that the signature line had been cut off. He recalled that the first warrant to search the Chipman Street residence was the first search warrant application he had ever prepared. He noted that neither the assistant district attorney with whom he had met earlier nor Judge Stansberry had noticed the error either.
Investigator Childress said that he then prepared a second warrant with the assistance of General Allen. Investigator Childress recalled that at the behest of General Allen, he included information about the discovery of C.C.'s body in the application for the second warrant. The second warrant reflects that it was issued at 7:25 p.m. Returns were prepared for both warrants, left at the house, and filed. The body was listed on the first return.
KPD Sergeant Keith Debow testified that he and other members of the "S.W.A.T." team were asked to assist Investigator Childress in executing the search warrant at the Chipman Street residence. He described finding C.C.'s body shortly after entering the residence:
I stepped into the kitchen with Lieutenant Fortner, is who was with me in there. When I entered into the kitchen, I saw in the far corner a large trash can that was oddly shaped. Looked like it was over-stuffed. I looked at Lieutenant Fortner and pointed at the trash can, and he immediately brought his weapon up to bear, and I stepped forward, brought my weapon to bear, flipped the trash can lid and saw the victim.
He said that he "thought that a suspect could possibly be hiding in the trash can, " explaining that officers intended to detain "anyone inside the residence." Although he could not recall whether he had been provided with a physical description of the defendant, he said that such a description "would have been of little relevance, as we were going to stop anybody inside that house and detain them." He emphasized that he was not asked to "search for evidence" but to secure the residence so that other officers could "come in and search for the evidence."
Mr. Crenshaw testified that he was called to process C.C.'s 4Runner during the early morning hours of January 8, 2007. He photographed the vehicle, processed the exterior for fingerprints and then had the vehicle towed to the city's impound lot. He then proceeded to another crime scene. When he returned to work his regular 11 p.m. to 7 a.m. shift that evening, he went back to the 4Runner, having recalled seeing a bank envelope inside the car. He used ninhydrin to raise any fingerprints from the bank envelope and then ran the resulting prints through the statewide computer database. The program generated a list of possible matches, and Mr. Crenshaw made the definitive match. He "identified the fingerprint as being the right thumbprint of Lemaricus Davidson, a black male; date of birth, 6/13/81." Mr. Crensahw said that he made the initial identification at 2:42 a.m. on January 9, 2007, but that the identification "really wasn't official" until it could be verified by his co-worker, who was scheduled to arrive at work at 7:00 a.m. Nevertheless, Mr. Crenshaw sent an email noting the identification and telephoned Investigator Childress to tell him of the discovery.
Mr. Crenshaw said that he "cruised by" the Chipman Street residence, which was only two or three miles from the police station, at approximately 6:30 a.m. on January 9, 2007, hoping to hear "somebody . . . screaming or something like that and then I could get somebody over there to – to do something." He heard nothing but saw "a purplish-blue light inside the residence. . . . a TV possibly."
B. Ruling of the Trial Court
The trial court concluded that the defendant had standing to challenge the search warrant based upon his property and privacy interests in the Chipman Street residence. The court observed that the record clearly established "that the affidavit was 'subscribed' to" and ruled "that the technical absence of the signature and signature line do not inva[l]idate the search warrant where the warrant is clear that the affidavit was sworn to before the approving judge." The court also ruled that the officers possessed the authority to enter the Chipman Street residence to arrest the defendant "on the attachment" that had been issued following the defendant's failure to appear on a misdemeanor citation. The court concluded that exigent circumstances also justified the entry into the Chipman Street residence because C.C. "was reasonably considered to be in danger of harm until found." Finally, the court determined that evidence seized from the Chipman Street residence on January 9, 2007, would not be admissible at trial under the inevitable discovery doctrine because information obtained during the first search was used to procure the second warrant.
C. Application of Law
A trial court's factual findings on a motion to suppress are conclusive on appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of credibility, the weight and value of the evidence, and the resolution of conflicting evidence are matters entrusted to the trial judge, and this court must uphold a trial court's findings of fact unless the evidence in the record preponderates against them. Odom, 928 S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts, however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).
Both the federal and state constitutions offer protection from unreasonable searches and seizures with the general rule being "that a warrantless search or seizure is presumed unreasonable and any evidence discovered subject to suppression." State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7).
As a threshold matter, the State claims that the defendant lacks standing to challenge the search of the Chipman Street residence because he had abandoned the residence by the time the search took place. The State argues that the defendant's act of fleeing the residence deprived him of any reasonable expectation of privacy in the residence.
The constitutional protections against unreasonable search and seizure "'are personal in nature, and they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.'" State v. Cothran, 115 S.W.3d 513, 520 (Tenn. Crim. App. 2003) (quoting State v. Ross, 49 S.W.3d 833, 840 (Tenn. 2001)). "One who challenges the reasonableness of a search or seizure has the initial burden of establishing a legitimate expectation of privacy in the place where property is searched." State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (citing Rawlings v. Kentucky, 448 U.S. 98 (1980); State v. Roberge, 642 S.W.2d 716, 718 (Tenn. 1982)); see Katz v. United States, 389 U.S. 347, 357 (1967); see also State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987) (stating that our state constitution affords no greater protection than the federal constitution and adopting the Katz standard). Thus, we must determine "(1) whether the individual had an actual, subjective expectation of privacy and [if so] (2) whether society is willing to view the individual's subjective expectation of privacy as reasonable and justifiable under the circumstances." State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979); Ross, 49 S.W.3d at 839). The second part of this inquiry focuses on "whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is 'justifiable' under the circumstances." Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 357).
Because the Fourth Amendment protects people and privacy rather than places and property, a property interest does not determine standing to challenge a search and does not control the right of officials to search and seize. See Oliver v. United States, 466 U.S. 170, 183 (1984); Katz, 389 U.S. at 351, 353. As the Supreme Court has recognized, "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz, 389 U.S. at 351. Importantly, a "person can lose his reasonable expectation of privacy in his real property if he abandons it. Thus, a person can, as he can with any other property, sufficiently manifest an intent to abandon his house." United States v. Harrison, 689 F.3d 301, 307 (3d Cir. 2012). "Abandonment for purposes of the Fourth Amendment differs from abandonment in property law; here the analysis examines the individual's reasonable expectation of privacy, not his property interest in the item." United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004) (citing United States v. Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990)). Consequently, "abandonment, " as understood in the constitutional context of unreasonable searches and seizures, "is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search." United States v. Veatch, 674 F.2d 1217, 1220-21 (9th Cir.1981).
Our supreme court has noted that a reviewing court should consider whether the individual has an ownership interest in the place searched, whether he has a possessory interest in the place searched, whether he has the right to exclude others from the place, and whether he undertook normal precautions to maintain the privacy of the place searched to determine whether an individual had a legitimate expectation of privacy in the place searched. See Oody, 23 S.W.2d at 560.
Here, the evidence established that the defendant and his girlfriend, Daphne Sutton, signed an agreement to lease the Chipman Street residence from November 1, 2006, to October 31, 2007. Ms. Sutton left the residence with her children before the offenses and moved in with a friend. The couple did not pay the rent on time in either December or January, but no effort had been made to evict them from the premises. Officers discovered property that belonged to the defendant inside the residence during the search. Ms. Sutton affirmed that she met the defendant at the Chipman Street residence on the evening of January 7, 2007. The defendant then telephoned Ms. Sutton in either the late evening hours of January 7 or early morning hours of January 8 and asked if he could stay with her, claiming that Mr. Cobbins had locked him out of the residence. The defendant stayed with Ms. Sutton until January 9, 2007, when news of the victims' deaths broke. Ms. Sutton then asked the defendant to leave and drove him to a location on Western Avenue. The defendant stated that he left the Chipman Street residence before the victims were murdered by Mr. Cobbins, Mr. Thomas, and Ms. Coleman, but he did not indicate that he had no intent to return the residence.
Under the facts presented, we cannot conclude that the defendant had abandoned the Chipman Street residence. Based on the proof presented, the defendant was a leaseholder of the Chipman Street residence, and he kept his personal property there. Although he was not present inside the residence at the time of the search, he had been away from the residence for less than 48 hours when the search warrant was executed. His property was still located in the residence at the time of the search. Importantly, nothing in the record evinces the defendant's intent to abandon the residence at the time the first warrant was executed. These factors support the conclusion that the defendant maintained a reasonable expectation of privacy in the Chipman Street residence at the time of the search and thus had standing to challenge the search warrants in this case.
2. Validity of the Search Warrants
As an initial matter, we note that there is no question that both the first and second warrants issued on January 9, 2007, were issued on probable cause, provided by an affiant who had been sworn, by a neutral and detached magistrate. At bottom, the warrants in this case raise no issue of constitutional dimensions, and the sole challenge is that the warrants failed to comply with our statutory requirements for the issuance of search warrants.
a. First Warrant
The defendant claims that the first search warrant executed at the Chipman Street residence was invalid because the affidavit in support of the warrant was unsigned.
"A search warrant can only be issued on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched." T.C.A. § 40-6-103; see State v. Keith, 978 S.W.2d 861, 869 (Tenn. 1998) ("The law in this State is clear that a written and sworn affidavit is an essential prerequisite to the issuance of a valid search warrant."). Additionally, before issuing a search warrant, the magistrate "shall examine on oath the complainant and any witness the complainant may produce, and take their affidavits in writing, and cause them to be subscribed by the persons making the affidavits." T.C.A. § 40-6-104. Similarly, Tennessee Rule of Criminal Procedure 41 provides that "[a] warrant shall issue only on an affidavit or affidavits that are sworn before the magistrate and establish the grounds for issuing the warrant." Tenn. R. Crim. P. 41(c)(1). "Stated simply, 'an affidavit is an indispensable prerequisite to the issuance of a search warrant.'" State v. Lowe, 949 S.W.2d 300, 303 (Tenn. Crim. App. 1996) (quoting State v. Johnson, 854 S.W.2d 897, 899 (Tenn. Crim. App. 1993)). Our supreme court has concluded that the statutory provisions relative to the issuance of search warrants and the requirements of Rule 41 are mandatory and that any evidence seized pursuant to a warrant that does not comply with these provisions cannot be admitted into evidence at trial. See State v. Bobadilla, 181 S.W.3d 641, 645 (Tenn. 2005) ("We have interpreted these rules strictly; the language is plain and the requirements are mandatory."); Talley v. State, 345 S.W.2d 867, 869 (Tenn. 1961).
"An affidavit generally has been defined in case law as 'a statement in writing, signed, and made upon oath before an authorized magistrate.'" Keith, 978 S.W.2d at 869 (quoting Watt v. Carnes, 51 Tenn. 532, 534 (1871)); see Harvey v. State, 60 S.W.2d 420, 421(Tenn. 1933). A "document, without a signature or oath, does not commit its purported author to any of the substantive statements it contains and, thus, has no evidentiary value." Kenyon v. Handal, 122 S.W.3d 743, 752 (Tenn. Ct. App. 2003). "An unsigned document cannot qualify as an affidavit." Id. n.6 (citing Crocker v. Larson, No. 01A01-9002-CV-00083 (Tenn. Ct. App., Nashville, Sept. 11, 1990) ("An unsigned 'affidavit' is not evidence and cannot be considered."))).
In this case, the evidence established that Investigator Childress' inadvertent printing of the affidavit on other than legal-sized paper resulted in the signature line for the affidavit being "cut off." As a result, no line was provided on which Investigator Childress could "subscribe" the affidavit. Instead, he placed his signature in the line indicating that the warrant had been issued to him for execution. In our view, his signature in that blank does not express itself as a subscription of the affiant and, hence, does not qualify as a subscription. This is particularly true given that Rule 41 also requires that the warrant contain the "name of the officer to whom the warrant was delivered for execution." Tenn. R. Crim. P. 41(c)(2)(D); see also State v. Stepherson, 15 S.W.3d 898, 902 (Tenn. Crim. App. 1999) (holding that although the result seemed "harsh" the "express language of the rule provides that the 'failure to endorse thereon . . . the name of the officer to whom issued' renders the search and seizure 'illegal'"). Nothing would suggest that Investigator Childress' signature may be construed to fulfill both of these compulsory provisions. Because the affidavit in support of the first search warrant was unsigned, it does not qualify as an affidavit as that term has been defined by our case law. In consequence, the warrant does not comply with the mandatory requirements of the Code or Rule 41. As a result, the evidence seized pursuant to that warrant, C.C.'s body and the objects used to conceal her body, is subject to the exclusionary rule unless an exception justifies admission of the evidence at trial.
b. Second Warrant
The defendant claims that the second warrant executed at the Chipman Street residence was invalid because, for probable cause, it relied on information discovered during the execution of the first, invalid warrant. The trial court ruled that the second warrant executed on January 9, 2007, was invalid because the affidavit in support of the warrant included references to the evidence discovered pursuant to the first, invalid warrant. The State concedes that information obtained during the first search should not have been included in the affidavit for the second warrant but urges this court to redact the offending information from the second affidavit and conclude that, even without the offending information, the affidavit contained sufficient information to establish probable cause for the second search warrant.
"Pursuant to the independent source doctrine, an unlawful entry does not mandate the suppression of evidence located inside a residence if the evidence is subsequently discovered following the execution of a valid warrant based upon facts independent and separate from information discovered as a result of the unlawful entry." State v. Carter, 160 S.W.3d 526, 532 (Tenn. 2005), abrogated on other grounds by Kentucky v. King, 131 S.Ct. 1849, 1863 (2011). "The underlying policy of the independent source doctrine is that 'while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied.'" Carter, 160 S.W.3d at 532 (quoting Murray v. United States, 487 U.S. 533, 542 (1988)). "In order for the subsequent warrant and search to be found genuinely independent of the prior unconstitutional entry, . . . information obtained during the illegal entry may not have been presented to the issuing Magistrate." State v. Clark, 844 S.W.2d 597, 600 (Tenn. 1992) (citing Murray, 487 U.S. at 542).
The proof established that the decision to obtain the second warrant was not "prompted by what they had seen during the initial entry, " see Murray, 487 U.S. at 542, but the officers did present information obtained during the execution of the first, invalid warrant to the magistrate who issued the second warrant. Both before and after the ruling in Murray, however, the Sixth Circuit Court of Appeals routinely excised tainted information from warrants that contained information that was procured during an illegal search or seizure. See United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005) ("In sum, authority from this and other circuits, as well as the principles underlying the Murray rule, support an interpretation of the independent source rule that incorporates consideration of the sufficiency of the untainted affidavit to see if probable cause exists without the tainted information."); Shamaeizadeh v. Cunigan, 338 F.3d 535, 552 (6th Cir. 2003) ("[W]e exclude from the affidavit only evidence gathered from the main floor of the house in violation of Shamaeizadeh's constitutional rights."); United States v. Smith, 730 F.2d 1052, 1056 (6th Cir. 1984) ("[W]hen a search warrant is based partially on tainted evidence and partially on evidence arising from independent sources, 'if the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant apart from the tainted information, the evidence seized pursuant to the warrant is admitted.'" quoting United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980)). Similarly, following our supreme court's ruling in Clark, this court continued to allow redaction of "any and all references to" information obtained during an illegal search followed by an evaluation of the "redacted affidavit in order to determine whether or not probable cause remains nonetheless." State v. Randall Keith Smith and Nicholas Ryan Flood, No. W2009-02678-CCA-R3-CD, slip op. at 11 (citing State v. Vanderford, 980 S.W.2d 390, 399-400 (Tenn. Crim. App. 1997)); see also State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App. 1993).
Utilizing this well-established practice, we conclude that if all references to information gained during the first entry into the Chipman Street residence are removed, the remaining facts contained in Investigator Childress' affidavit in support of the second search warrant established probable cause to search the residence. To hold otherwise would, in our view, "violate the core rationale underpinning the independent source doctrine – that the police not be placed in a worse position than they would have been in if no misconduct had occurred." Randall Keith Smith and Nicholas Ryan Flood, slip op. at 11; see also Jenkins, 396 F.3d at 758-59 ("Invalidating a search warrant because the magistrate was affected in some minor way by tainted information, when the warrant would have been granted even without the tainted information, would put the police in a worse position than they would have been in had they not presented the tainted information to the magistrate."). This is particularly true where, as here, the violation that led to the invalidation of the first warrant was technical in nature and did not touch upon the defendant's constitutional rights. Thus, the second warrant was valid.
Because the second search warrant was valid, suppression of the evidence discovered during the second January 9, 2007 search was not required. We discuss more fully in our analysis of the inevitable discovery doctrine the implications of the validly issued second warrant on the discovery of C.C.'s body and other evidence during the first January 9, 2007 search.
3. Service of the Attachment
The State asserts that an attachment issued by the Knox County General Sessions Court following the defendant's failure to appear on a misdemeanor citation justified the initial January 9, 2007 entry into the Chipman Street residence. The defendant contends that the attachment does not qualify as an arrest warrant. Additionally, he argues that even if the attachment qualified as an arrest warrant, it would not have justified the entry into the Chipman Street residence under the circumstances of this case.
After he identified the defendant's fingerprint on the bank envelope recovered from C.C.'s 4Runner, Mr. Crenshaw conducted a records check that showed that an attachment had been issued by the Knox County General Sessions Court for the defendant's failure to appear on a misdemeanor citation. Investigator Childress later confirmed that members of the Knox County Sheriff's Office had the attachment "in hand." Investigator Childress testified that his two-fold purpose in entering the Chipman Street residence on January 9, 2007, was to execute the search warrant and arrest the defendant pursuant to the attachment. He conceded, however, that he did not obtain a copy of the attachment before going to the residence.
Tennessee Code Annotated section 40-7-118 provides that if a person to whom a citation in lieu of an arrest has been issued "fails to appear in court on the date and time specified or fails to appear for booking and processing prior to the person's court date, the court shall issue a bench warrant for the person's arrest." T.C.A. § 40-7-118(f). The attachment, which was exhibited to the hearing, indicates that the "reason" for its issuance was the defendant's failure to appear for booking. In our view, the attachment at issue was the functional equivalent of an arrest warrant, given that it "commanded in the name of the State" the "arrest" of the defendant. That being said, service of the attachment in this case did not justify the entry into the residence because the State failed to establish that the police had "reason to believe" that the defendant was inside the residence when they knocked on the door. See Payton v. New York, 445 U.S. 573, 603 (1980) ("For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."). To the contrary, the evidence established that Officer Charles Lee drove by the residence and indicated that there appeared to be no activity inside the house. Neither Investigator Childress nor Officer Debow, both of whom were present when the search warrant was executed, testified that the residence bore any indicia of activity. When officers knocked on the door and announced their presence, they heard neither a reply nor any sounds indicating activity within. Because the officers lacked reason to believe that the defendant was inside the Chipman Street residence at the time the first warrant was executed on January 9, 2007, service of the attachment did not justify the entry into the residence.
4. Exigent Circumstances Exception to the Warrant Requirement
Because we have determined that the first search warrant executed at the Chipman Street residence on January 9, 2007, was invalid, we must now determine whether an exception to the warrant requirement justified the warrantless entry into the residence that resulted in the discovery of C.C.'s body.
The State contends that exigent circumstances justified the entry into the Chipman Street residence, and the defendant asserts that the delay between the discovery of the defendant's fingerprint on the bank envelope found in C.C.'s 4Runner and the entry into the residence militates against a finding of exigency.
The "most basic constitutional rule" with regard to search and seizure "is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v. United States, 389 U.S. at 357); see also State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). "The exceptions are 'jealously and carefully drawn, ' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.'" Coolidge, 403 U.S. at 455 (quoting Jones v. United States, 357 U.S. 493, 499 (1958), and McDonald v. United States, 335 U.S. 451, 456 (1948)). "We are not dealing with formalities. The presence of a search warrant serves a high function." McDonald, 335 U.S. at 455. Thus, we necessarily indulge the presumption that the search or seizure in this case was unreasonable, and the burden is on the State to demonstrate that one of the exceptions to the warrant requirement applied at the time of the search or seizure. See, e.g., Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013) ("Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception.").
The generally recognized exceptions to the Fourth Amendment warrant requirement include "search incident to arrest, plain view, stop and frisk, hot pursuit, search under exigent circumstances, and . . . . consent to search." State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005) (citations omitted). The State claims that the first entry into the Chipman Street residence was impelled by exigent circumstances.
"Given the importance of the warrant requirement in safeguarding against unreasonable searches and seizures, a circumstance will be sufficiently exigent only where the State has shown that the search is imperative." State v. Meeks, 262 S.W.3d 710, 723 (Tenn. 2008) (citing Coolidge, 403 U.S. at 454-55; State v. Hayes, 188 S.W.3d 505, 514 (Tenn. 2006); State v. Yeargan, 958 S.W.2d 626, 641 (Tenn. 1997) (Reid, J., concurring)). Our supreme court has provided the following non-exclusive list of "frequently-arising situations that have been found to be sufficiently exigent" to justify the warrantless search of a residence: "(1) hot-pursuit, (2) to thwart escape, (3) to prevent the imminent destruction of evidence, (4) in response to an immediate risk of serious harm to the police officers or others, and (5) to render emergency aid to an injured person or to protect a person from imminent injury." Meeks, 262 S.W.3d at 723 (citing Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006); Minnesota v. Olson, 495 U.S. 91, 100 (1990); United States v. Huffman, 461 F.3d 777, 782 (6th Cir. 2006); State v. Adams, 238 S.W.3d 313, 321 (Tenn. Crim. App. 2005)). Said differently, "[e]xigent circumstances are those in which the urgent need for immediate action becomes too compelling to impose upon governmental actors the attendant delay that accompanies obtaining a warrant." Meeks, 262 S.W.3d at 723.
"To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances." McNeely, 133 S.Ct. at 1559 (citing Brigham City, Utah, 547 U.S. at 406; Illinois v. McArthur, 531 U.S. 326, 331 (2001); Richards v. Wisconsin, 520 U.S. 385, 391-96 (1997); Cupp v. Murphy, 412 U.S. 291, 296 (1973)). The Supreme Court explained:
We apply this "finely tuned approach" to Fourth Amendment reasonableness in this context because the police action at issue lacks "the traditional justification that . . . a warrant . . . provides." Atwater v. Lago Vista, 532 U.S. 318, 347 n.16 (2001). Absent that established justification, "the fact-specific nature of the reasonableness inquiry, " Ohio v. Robinette, 519 U.S. 33, 39 (1996), demands that we evaluate each case of alleged exigency based "on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931).
McNeely, 133 S.Ct. at 1559. This analysis focuses on the information known to the officer at the time of the search and any reasonable inferences that may be drawn therefrom. Meeks, 262 S.W.3d at 723-24.
The evidence in this case established that after C.N.'s body was discovered on January 7, 2007, the police waited until the following day to send someone to identify the body at the medical examiner's office. When C.C.'s 4Runner was discovered at approximately 1:30 a.m. on Monday, January 8, 2007, by her friends and family rather than the police, only 400 yards away from the location of C.N.'s body, the police towed the vehicle to the impound lot and waited more than 18 hours to conduct a thorough search of the vehicle. By 2:52 a.m. on January 9, 2007, however, the police possessed information that indicated that the defendant had been inside C.C.'s 4Runner and that the defendant lived at 2316 Chipman Street, which was only "150 yards from" the location where C.N.'s body was discovered and "less than a block and a half from" the location where C.C.'s 4Runner was found abandoned. Witness testimony established that the officers waited to obtain verification of the fingerprint identification from another KPD employee until the following morning rather than seeking an immediate verification. Even after they obtained that verification, however, the police spent several hours preparing a search warrant and did not execute the warrant until nearly 45 minutes after it was issued. Although we have stated "that 'delay alone . . . does not bar reliance on the emergency aid exception, '" State v. William T. Davis, No. M2004-03060-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Nashville, Sept. 15, 2005) (quoting State v. Sharp, 973 P.2d 1171, 1176 (Ariz. 1999); Foutz v. City of West Valley City, 345 F.Supp.2d 1272, 1277 (D. Utah 2004)), the delay in this case was a matter of hours rather than a matter of minutes. Indeed, the investigative pace in this case can fairly be described as glacial under the circumstances. In our view, these circumstances simply do not indicate that any sort of exigency permeated the police investigation.
5. Inevitable Discovery Exception to the Exclusionary Rule
Finally, the State avers that the doctrine of inevitable discovery justifies admission of the evidence collected pursuant to the first, invalid search warrant. On this point, we agree with the State.
"Generally, evidence obtained as a direct or indirect result of unconstitutional police conduct will be excluded as the 'fruit' of the primary constitutional breach." State v. Hill, 333 S.W.3d 106, 122-23 (Tenn. Crim. App. 2010) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920); Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)). "Under the doctrine of 'inevitable discovery, ' however, illegally obtained evidence will be deemed admissible at trial if the State can establish that the evidence would have inevitably been discovered by lawful means." Hill, 333 S.W.3d at 123 (citing State v. Patton, 898 S.W.2d 732, 735 (Tenn. Crim. App. 1994)).
Before the inevitable discovery doctrine will permit the admission of illegally obtained evidence, the State must demonstrate "first, that certain proper and predictable investigatory procedures would have been utilized in the case at bar, and second, that those procedures would have inevitably resulted in the discovery of the evidence in question."
Hill, 333 S.W.3d at 123 (quoting State v. Coury, 657 S.W.2d 777, 780 (Tenn. Crim. App. 1983)). "Proof of inevitable discovery may involve 'no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.'" Hill, 333 S.W.3d at 123 (quoting Nix v. Williams, 467 U.S. 431, 444 n.5 (1984), and citing State v. Cothran, 115 S.W.3d 513, 525 (Tenn. Crim. App. 2003)).
The Supreme Court adopted and applied the inevitable discovery doctrine in Nix. In that case, Nix abducted 10-year-old Pamela Powers from a Des Moines, Iowa YMCA on Christmas Eve in 1968 and later turned himself in to authorities in Davenport, Iowa. Nix, 467 U.S. at 434-35. While transporting Nix via car from Davenport to Des Moines, officers initiated a conversation with Nix that elicited from him incriminating statements and ended with his guiding the police to the victim's body. Id. at 435-36. The trial court deemed Nix's statements inadmissible but allowed the prosecution to offer evidence concerning the location and condition of the body under the theory that had the search for the victim continued, the body would have been discovered within a short time and in the same condition as actually found. Id. at 437-40.
In support of the application of the inevitable discovery doctrine, the Nix prosecution offered specific evidence that the volunteer search team assembled to search for the victim had ended its search only two and one-half miles from the location of the body after the defendant identified the location and that, based on the earlier progress of the search, the victim's body would have been discovered in an additional three to five hours of continued searching. Id. at 449.
"On this record, " the Supreme Court concluded, "it is clear that the search parties were approaching the actual location of the body, and we are satisfied, along with three courts earlier, that the volunteer search teams would have resumed the search had Williams not earlier led the police to the body and the body inevitably would have been found."
Hill, 333 S.W.3d at 123-24 (quoting Nix, 467 U.S. at 449-50). To warrant application of the inevitable discovery doctrine, the State must demonstrate by a preponderance of the evidence that "the information ultimately or inevitably would have been discovered by lawful means." Nix, 467 U.S. at 444. The Sixth Circuit Court of Appeals has noted that "[t]he inevitable discovery doctrine is conceptually more problematic than the independent source doctrine because it involves a degree of deducing what would have happened rather than simply evaluating what actually happened." United States v. Leake, 95 F.3d 409, 412 (6th Cir. 1996).
The evidence presented at the hearing on the motion to suppress and at trial established that the police had focused upon not only on the defendant but also the Chipman Street residence at the time of the search. C.N.'s body had been discovered only "150 yards from" the Chipman Street residence, and C.C.'s 4Runner had been discovered "less than a block and a half from" the residence. After C.N.'s body was identified, members of the "search and recovery team" were sent into the area around the Chipman Street residence, which was located a short distance from the police station, to search for C.C. Additionally, her friends and family, who had already discovered the 4Runner, were actively searching the area around the Chipman Street residence. The officers had legal possession of the 4Runner and legally obtained the defendant's fingerprint from a bank envelope found in the 4Runner. A legally-conducted records check showed that the defendant listed the Chipman Street residence as his residence on his driver's license and other legal documents. Mr. Crenshaw and KPD Officer Charles Lee had driven by the Chipman Street residence at separate times on January 9, 2007, lessening the chance that the evidence might be removed from the residence before police officers could gain legal entry. The defendant had absented himself from the residence. As a practical matter, from the point that officers linked the defendant to the 4Runner and linked the Chipman Street residence to the defendant, the residence was under the effective control of and surveillance by the KPD. To be sure, from the time the officers first entered the Chipman Street residence to execute the first search warrant until the time they entered the residence to execute the second search warrant and at all times thereafter, the residence was under the actual and exclusive control of the KPD. As such, there was no chance that C.C.'s body would have been moved before the officers had an opportunity to legally discover and seize it.
Aside from the ongoing police investigation, we note that James Mitchell, the self-described handyman and rent collector for the defendant's landlord, Sammie Peroulas, testified that, as of January 9, 2007, he had already gone to the Chipman Street residence twice to collect January's rent. Each time, the defendant had told Mr. Mitchell that he did not have the money to pay the rent and had asked Mr. Mitchell to come back at a later date. When he returned a third time, Mr. Mitchell saw police tape around the residence and learned of the crimes. Moreover, the defendant's lease agreement contained a provision permitting the landlord or the landlord's agents "the right at all reasonable times during the term of [the lease] . . . to enter the House for the purpose of inspecting the premises." That provision would have provided another avenue of entry into the house that could have been exploited by the police. Additionally, Ms. Sutton, who was also listed as a lessee, later cooperated extensively with the police and could have granted consent to search the Chipman Street residence because she was a party to the lease agreement.
This evidence demonstrates that the police investigation, had it continued in the absence of the illegality, would have resulted in the officers lawfully entering the Chipman Street residence and discovering C.C.'s body. They had ample probable cause to support the issuance of a warrant to search the Chipman Street residence, and they did obtain a warrant that was issued on probable cause and that complied with constitutional requirements. The illegality here is based entirely on a state law violation that did nothing to dissipate the probable cause that existed before the police entered the Chipman Street residence. The police then obtained a second warrant that we have deemed independent from the state law violation that renders the first search warrant invalid. They executed that search warrant at the residence on the same day as the initial, illegal entry. Additionally, officers of the federal government and the TBI executed a validly executed search warrant on January 15, 2007. Had they not already seized her body, the police most certainly would have done so upon executing either the second search warrant or the federal search warrant. See Murray, 487 U.S. at 542 ("It seems to us, however, that reseizure of tangible evidence already seized is no more impossible than rediscovery of intangible evidence already discovered."). Clearly, the preponderance of the evidence established that lawful means of investigation were being pursued before the first, illegal entry that would have led to the discovery of C.C.'s body. See Nix, 467 U.S. at 444 ("If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . then the deterrence rationale has so little basis that the evidence should be received."); see also id. n.5 ("We are unwilling to impose added burdens on the already difficult task of proving guilt in criminal cases by enlarging the barrier to placing evidence of unquestioned truth before juries."). For this court to conclude otherwise would require us to "reject logic, experience, and common sense, " id. at 444, and "would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice, " id. at 447.
The Supreme Court has repeatedly cautioned against "'[i]ndiscriminate application'" of the exclusionary rule and has applied the rule only "'where its deterrence benefits outweigh its substantial social costs.'" Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citations omitted); see also Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364-65 (1998) ("Because the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: it undeniably detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions. Although we have held these costs to be worth bearing in certain circumstances, our cases have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule." (citations omitted)). Here, where the record amply demonstrates that C.C.'s body would inevitably have been discovered by lawful means, we can see no reason to exclude this "reliable, probative evidence." See Scott, 524 U.S. at 364. In consequence, the trial court did not err by denying the defendant's motion to suppress the evidence obtained during the first January 9, 2007 search of the Chipman Street residence.
III. Motion to Suppress Pretrial Statements
The defendant asserts that the trial court erred by denying his motion to suppress the recorded statement he made to the police following his January 11, 2007 arrest. In the motion, the defendant claimed that the statements were the product of an unconstitutional custodial interrogation and that the statements were involuntarily given. Specifically, the defendant contends that the overwhelming police presence during his arrest and the harsh manner in which he was treated following his arrest rendered his statement involuntary. He claims that his arrest was illegal because it was predicated on the ...