Court of Criminal Appeals of Tennessee, Knoxville
Session January 22, 2015
Appeal from the Criminal Court for Campbell County No. 14586 E. Shayne Sexton, Judge
Michael G. Hatmaker, Jacksboro, Tennessee, for the appellant, Eddie Joe Whitaker.
Herbert H. Slatery, III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Jared Effler, District Attorney General; and Scarlet W. Ellis, Assistant District Attorney General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.
D. KELLY THOMAS, JR., JUDGE
Mark Bell testified that he was employed full-time with the Jellico Fire Department and that he worked part-time as a dispatcher for the Jellico Police Department. He testified that he had known the Defendant "for years." On August 25, 2009, Mr. Bell was subpoenaed to testify against the Defendant. Mr. Bell testified that he was present in court that day and that he saw the Defendant in the courtroom but that he did not actually testify against the Defendant. As the Defendant was leaving the courtroom, he told Mr. Bell that "if he caught [Mr. Bell] on the Kentucky side, he'd whip [his] a--." Mr. Bell did not respond to the Defendant's threat.
Assistant Chief J.J. Hatmaker testified that he worked for the Jellico Police Department and that he was in general sessions court on August 25, 2009. He was sitting near Mr. Bell in the rear of the courtroom. Asst. Chief Hatmaker heard the Defendant threaten Mr. Bell with "a butt whipping when he caught him on the Kentucky side of the line." Asst. Chief Hatmaker's memory was that Mr. Bell did in fact testify that day, but when pressed as to whether he was sure that Mr. Bell testified, he responded that "[it was] a while back." Asst. Chief Hatmaker also testified that he did not believe the Defendant would follow through on his threat to Mr. Bell.
Mr. Bell testified that around 5:00 p.m. on August 25, he was driving through Jellico when the Defendant pulled in behind Mr. Bell and, motioning with his hand out the window, "tried to flag [Mr. Bell]" to get him to pull over. Mr. Bell pulled over on the side of the road, and the Defendant then pulled his vehicle over, exited, and approached Mr. Bell's vehicle. Mr. Bell remained in his vehicle. The Defendant asked Mr. Bell why he had "showed up in [c]ourt against him that day, " and Mr. Bell responded that he had been "summonsed [sic] and . . . had to show up." According to Mr. Bell, the Defendant "kind of acted like he understood, but he was aggravated about it." The Defendant complained that the case against him "was a bunch of BS, " and that "he was gonna have to pay an extra [$]5, 000 to get out of it." The Defendant also alleged that "the only reason that [the prosecuting officer] was doing this was because . . . [the Defendant] wouldn't sleep with her." This conversation went on for "a couple of minutes." Eventually, the Defendant walked back to his vehicle, and Mr. Bell drove away.
Mr. Bell testified that he next saw the Defendant on August 26, 2009, at Jellico City Hall. Mr. Bell was sitting in the court clerk's office with Officer Wayne Conrad, Jackie Richardson, and Officer Jeff Ivey. Mr. Bell was in the office reading a magazine and talking to the others when he saw the Defendant walking towards the office. Initially, Mr. Bell "didn't think nothing of it" because "[the Defendant] could have been coming in for any business." However, the Defendant proceeded to point his finger at Mr. Bell and said, "That right there is the one I'm gonna kill, " as he walked toward Mr. Bell. Mr. Bell testified that he "just looked at [his] magazine" and "tried not to say anything back because [he] was on duty and didn't want to risk losing [his] job or anything." Mr. Bell explained that he "didn't know what to think" and "was kind of shocked" by the Defendant's threat but that he did take the threat seriously because "[i]t ain't every day somebody tells you they are gonna kill you . . . ."
On cross-examination, Mr. Bell testified that he was about six-foot, four-inches tall and weighed about 308 pounds. He said that he could not estimate the Defendant's height and weight but admitted he was "a lot bigger" than the Defendant. Nevertheless, Mr. Bell insisted that "just because [the Defendant's] littler [sic] than me don't mean he can't whoop me." Mr. Bell admitted that the Defendant was not arrested on August 26, 2009, and, in fact, was arrested two or three days later.
Officer Wayne Conrad testified that he was employed by the Jellico Police Department and that he was present at the police station on August 26, 2009. Officer Conrad testified that Jackie Richardson, Mark Bell, and Jeff Ivey were also present in the "business office" at the station. Officer Conrad testified that on the afternoon of August 26, the Defendant entered the business office, pointed his finger at Mr. Bell, said, "There's the one I'm gonna kill, " and walked toward Mr. Bell. Officer Conrad "told [the Defendant] that he wasn't threatening nobody in [the office] and told [the Defendant] to get out." The Defendant left the office as requested.
Officer Conrad further testified that the Defendant "looked agitated . . . [and] [m]ad, in a rage." According to Officer Conrad, he knew the Defendant was referring to Mr. Bell when he made the threat because the Defendant "pointed directly at [Mr. Bell]." Officer Conrad said that when he intervened, the Defendant "threw his ...