Assigned on Briefs January 6, 2015
Appeal from the Circuit Court for Dyer County No. 11-CR-398 Russell Lee Moore, Jr., Judge
James E. Lanier, District Public Defender (at trial and on appeal); and Sean Patrick Day, Assistant District Public Defender (on appeal), Dyersburg, Tennessee, for the appellant, John D. Bailey.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE
This case concerns the shooting death of Helen Robertson in Newbern, Tennessee, on August 31, 2011. Appellant was the roommate of Tracy Byrd,  who had an ongoing dispute with Ms. Robertson concerning the care of K.H.,  Ms. Robertson's daughter and Ms. Byrd's stepdaughter. Appellant made an inculpatory statement to the police, which he subsequently moved to suppress. The trial court held a suppression hearing and thereafter denied appellant's motion to suppress. The case proceeded to trial, where the jury found appellant guilty of premeditated first degree murder.
A. Suppression Hearing
Tracy Byrd testified that on September 1, 2011, she went to Northview Middle School to pick up two children for orthodontist appointments. While at the school, the principal told her about Ms. Robertson's death and asked Ms. Byrd to stay at the school to talk to the police. The police talked to her for a few minutes and then asked her to go to the police department for questioning. She agreed to go and drove her own vehicle to the police department. Ms. Byrd testified that the police asked her about her whereabouts the previous day and whether she could prove where she was at any point. She gave her consent for Investigator Greg Barr to retrieve Walmart receipts from her vehicle, which showed that she was at the Dyersburg Walmart the night before. Ms. Byrd said that the police asked for her consent to search her house, which she gave. She stated that the police told her that she "had to go straight back to [her] house" and that she could not first pick up her children from school. She said that she went to her house and that the police were already there.
Ms. Byrd testified that she assumed appellant was in the house at that time but that she did not see him. She further testified that when she asked the police again about picking up her children, she was told that she could not leave and that she could not use the telephone to call a friend to pick up the children. Investigator Rodney Wright then told her that she had to go back to the police station with him, and he had her sit in the front seat of his vehicle on the way to the station. Ms. Byrd testified that she asked whether she could drive her own vehicle but was told that she could not. She said that she was placed in a room at the police department and, soon after arriving, was shackled to a chair. She stated that they moved her to different rooms over the course of the evening but would re-shackle her after each move.
Ms. Byrd testified that the police finally interviewed her "around three in the morning, " when she had "been there all day and most of the night with nothing to eat and nothing to drink." She said that she did not leave the police department until after 6:00 a.m. on September 2. Ms. Byrd stated that while she was at the police department, she occasionally saw glimpses of appellant, who was "handcuffed and shackled the same way that [she] was." She further stated that Investigator Wright told her that "he would have Child Services come pick [her] kids up if [she] didn't tell them what they wanted [her] to tell them." She testified that he convinced her to talk to appellant by telling her that the only way that she would see her children again was to "tell [appellant] to tell [the police] what they wanted to hear." She said that Investigator Wright led her to an office where appellant was sitting and that she told appellant, "'John, please tell them whatever they want to know, what they want to hear, because he said I can't go home to my babies if you don't.'" Ms. Byrd also said that Investigator Wright told her that she would get a lethal injection "if [she] didn't watch what [she] was doing."
On cross-examination, Ms. Byrd testified that K.H. was her ex-husband's daughter and that the victim was K.H.'s mother. However, K.H. actually lived with Ms. Byrd, despite the fact that she was no longer married to K.H.'s father. Ms. Byrd agreed that she had an ongoing dispute with the victim about the victim's treatment of K.H. She further agreed that appellant, who had been her roommate, was aware of the disagreement. Ms. Byrd testified that she went to the school to pick up her children for orthodontist appointments but that she had to leave them at the school. She said that she was also responsible for picking up her nephew from the high school in the afternoon on a daily basis. Ms. Byrd agreed that she signed the consent to search her house at 3:00 p.m. on September 1. She said that she then went straight to her house because the police told her not to pick up her children and nephew from school. Ms. Byrd testified that a police officer picked up her eldest daughter from school and that her eldest daughter used Ms. Byrd's vehicle to pick up the younger daughters. She said that she would be surprised to learn that the recording of her statement to police began at 8:45 p.m. and ended at 9:32 p.m. She claimed that she was unaware of the passage of time because of her fear.
Newbern Police Investigator Greg Barr testified that Tracy Byrd was the first suspect with whom he made contact in the investigation of the victim's murder. He described Ms. Byrd as "very cooperative." He said that he was able to "[r]ule her out as the actual trigger person" quickly because she was able to prove she was at Walmart around the time of the shooting. Investigator Barr testified that Ms. Byrd signed consent forms for the police to search both her vehicle and her home. When the police arrived at her house, appellant met them at the door. Investigator Barr stated, "[Appellant] also agreed that he had no problem with us coming in and he actually accompanied us in the house and was even helping us tell which . . . room was what as we started to look in the house." Investigator Barr testified that they found Remington-Peters twelve-gauge shotgun shells in Ms. Byrd's dresser that "appeared to be very consistent" with the shell found in the murder weapon. Both the shell in the murder weapon and those found in Ms. Byrd's dresser were Remington-Peters, with green plastic and gold brass. Investigator Barr acknowledged that the shell from the murder weapon was loaded with double-aught buckshot, however, while those found in Ms. Byrd's dresser were number four shot. He stated that they did not know the shell from the murder weapon was double-aught buckshot until after they discovered the shells at Ms. Byrd's house.
Investigator Barr testified that he asked appellant whether "he would consent to come up to the police department to talk to us." He further stated that he explained to appellant that he was not under arrest. Investigator Barr said that appellant agreed to go to the police station and also agreed to ride with Officer Robert Harrison to the station. Investigator Barr acknowledged that appellant consented to go to the police station at 3:40 p.m. and that the police did not begin interviewing him until 10:39 p.m. He explained that appellant was in a courtroom adjacent to the police department during those seven hours. Appellant was alone for much of the time. Investigator Barr testified that appellant was not handcuffed or shackled during those seven hours. He said that he made clear to appellant that he was not under arrest. Investigator Barr said that the courtroom had an unlocked door to the outside and that "[a]ll he had to do is leave." Investigator Barr testified that appellant was not detained until immediately after Ms. Byrd finished her recorded statement, which was at 9:32 p.m. He explained that he and his partner had an unrecorded interview with Ms. Byrd from 5:44 p.m. until 7:43 p.m., when they took a short break, and then they recorded Ms. Byrd's statement from 8:45 p.m. to 9:32 p.m. Both Ms. Byrd and appellant were detained after Ms. Byrd's statement. Investigator Barr testified that they began interviewing appellant at 10:39 p.m. He said that appellant denied any involvement in the victim's murder until the police brought Ms. Byrd into the room. Investigator Barr testified that Ms. Byrd told appellant, "'John, tell them the truth. I've already told them what you did to Helen.'" Following that confrontation, appellant "began to tell [the police] in detail what he had done." He said that Ms. Byrd was not restrained when they brought her into the room. He could not recall her saying anything to appellant about losing her children. Investigator Barr testified that Investigator Wright told Ms. Byrd that if she did not have anything to do with Ms. Robertson's death, then she should continue telling them about what appellant had done because she would not be with her children if she were in jail on a homicide charge. He further testified that Ms. Byrd's allegations that she was threatened with a lethal injection were "completely false."
On cross-examination, Investigator Barr testified that the homicide report was called in at 10:46 p.m. on August 31. To his knowledge, no news reports were available about the homicide on September 1. Investigator Barr recalled that after Ms. Byrd gave her consent for the police to search her house, she told them that she was going to pick up her children and take them to her brother's house before she returned home. He said that they began searching her house at 3:11 p.m. They transported appellant to the police department at 3:40 p.m., and Ms. Byrd returned home shortly thereafter. Investigator Barr said that Ms. Byrd wanted to leave her vehicle at her house for her eldest daughter. He stated that Investigator Wright transported Ms. Byrd to the police station, and they settled her into the intoximeter room. She was not restrained in any manner. They later interviewed her in Investigator Barr's office. She signed the Miranda rights waiver at 5:44 p.m. They took a break from 7:43 p.m. to 8:45 p.m. and then recorded her statement from 8:45 p.m. to 9:32 p.m. Investigator Barr testified that Ms. Byrd told them that appellant "had taken care of Helen." He agreed that Ms. Byrd gave them details of the crime that were not common knowledge, such as the fact that the victim was in front of her living room window and that the murder weapon had misfired. After her statement, both Ms. Byrd and appellant were detained. Appellant gave his recorded statement from 3:13 a.m. to 3:49 a.m. on September 2, and Ms. Byrd was transported home at 4:31 a.m. Both Ms. Byrd's and appellant's statements were admitted into evidence as exhibits to the hearing.
William Keith Ozment, formerly a sergeant with the Newbern Police Department, testified that on September 1, he saw appellant in the courtroom adjacent to the police department. Mr. Ozment said that he "talked small talk" with appellant and that appellant was not restrained at the time. The conversation lasted fifteen to twenty minutes. That evening, the investigators asked Mr. Ozment to restrain appellant. He did not know what time exactly but thought it was between 7:30 and 9:00 p.m. Mr. Ozment said that there was a door in the courtroom that opened on to Main Street and that the door was always unlocked from the inside. Mr. Ozment testified that he did not see Chief Dunivant at the police department that day and that neither Chief Dunivant nor Chief Barnes asked him to restrain appellant.
Newbern Police Officer Robert Harrison testified that at the time of the victim's murder, he worked for the West Tennessee Violent Crime and Drug Task Force. Investigator Barr asked him to come to the scene of the victim's murder to assist in the investigation. He said that he transported appellant to the police department and that appellant was unrestrained and sat in the front seat. Officer Harrison stated that he took appellant to the courtroom and sat with him for awhile. Officer Harrison played music on his telephone, and appellant made comments about the music Officer Harrison played and about his health. Officer Harrison left after receiving a work-related call. He let Investigator Wright know where appellant was.
Newbern Police Investigator Rodney Wright testified that a twelve-gauge shotgun was located at the murder scene. He opened the action enough to see that the shell inside was a Remington-Peters shell and that it was green plastic with "high brass." He did not notice that it was double-aught buckshot until a couple of days later. Investigator Wright testified that the shells found at Ms. Byrd's home were also green plastic, high brass, Remington-Peters, but those were filled with number four shot. Investigator Wright said that appellant was not developed as a suspect until Ms. Byrd gave her statement. He further stated that no one was assigned to guard appellant while he was in the courtroom. Investigator Wright testified that he told Ms. Byrd, in response to her saying that she wanted to go home to her children, that she should tell the truth if she wanted to see her children.
On cross-examination, Investigator Wright testified that Ms. Byrd drove her own vehicle to her house after she consented for the police to search the house. He recalled that she first went to pick up children from school and took them to her brother's house. Later, she wanted to leave her vehicle at the house for her eldest daughter to use, which was why she rode with Investigator Wright to the police department.
Appellant testified that he did not feel that he had a choice about whether to go to the police department on September 1. He stated that approximately thirty minutes after he arrived, Sergeant Ozment placed leg shackles on him, saying that the Chief had ordered him to restrain appellant. Appellant said that he was restrained the entire time prior to his interview and that he was not given food during that time. When he was moved to the investigator's office, Investigator Wright offered him a snack. Appellant said that he asked for a Coke because he was "hypoglycemic or anemic" and would have needed more food than just a snack. Appellant recalled that the only time that he saw Ms. Byrd while at the police department was when the police brought her to the office. She was "leg ironed" and told him, "'Please don't take my babies away from me.'" Appellant testified that at that point, he decided to "tell them what they wanted to ...