Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 9, 2014
Appeal from the Criminal Court for Sullivan County No. C62540 Robert H. Montgomery, Judge
Alvin Michael Young, Mountain City, Tennessee, Pro Se (on appeal); Jim R. Williams, Kingsport, Tennessee (at hearing), for the Defendant-Appellant, Alvin Michael Young.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Barry Staubus, District Attorney General; and William Harper, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ALAN E. GLENN, JUDGE
The petitioner was convicted by a Sullivan County jury of aggravated kidnapping and domestic assault. The trial court merged the petitioner's convictions and sentenced him to eight years and six months in the Tennessee Department of Correction. The petitioner appealed, arguing that the evidence was insufficient to support his aggravated kidnapping conviction and that he received the ineffective assistance of counsel at trial. After review, this court affirmed the trial court's judgment. See State v. Michael Alvin Young, No. E2010-00849-CCA-R3-CD, 2011 WL 5517281 (Tenn. Crim. App. Nov. 9, 2011). The petitioner filed a Rule 11 application, pursuant to the Tennessee Rules of Appellate Procedure, to the Tennessee Supreme Court. Our Supreme Court granted the application and remanded the case to this court for reconsideration in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), a case in which the supreme court announced that
trial courts must ensure that juries return kidnapping convictions only in those instances in which the victim's removal or confinement exceeds that which is necessary to accomplish the accompanying felony. Instructions should be designed to effectuate the intent of the General Assembly to criminalize only those instances in which the removal or confinement of a victim is independently significant from an accompanying felony, such as rape or robbery. When jurors are called upon to determine whether the State has proven beyond a reasonable doubt the elements of kidnapping, aggravated kidnapping, or especially aggravated kidnapping, trial courts should specifically require a determination of whether the removal or confinement is, in essence, incidental to the accompanying felony or, in the alternative, is significant enough, standing alone, to support a conviction. In our view, an instruction of this nature is necessary in order to assure that juries properly afford constitutional due process protections to those on trial for kidnapping and an accompanying felony.
Id. at 578. After considering the facts and circumstances of the petitioner's case as compared to those in White, this court again affirmed the trial court's judgment, and the Tennessee Supreme Court denied his application for permission to appeal.
On the petitioner's second direct appeal, this court summarized the underlying facts and procedural history of the case as follows:
This case arises from the [petitioner]'s kidnapping and assault of his girlfriend on July 29, 2006. Based on these events, a Sullivan County grand jury indicted the [petitioner] for aggravated kidnapping, domestic assault, two counts of reckless aggravated assault, and reckless endangerment.
At the [petitioner]'s trial, the parties presented the following evidence: Lindsey Bishop, the victim's friend, testified that she, the victim, and another friend, Madison Hill, went to "Club Up" at around midnight. Bishop recalled that she drank three beers that night and that she also observed the victim drinking alcohol. Bishop said that the three women were out on the dance floor when the [petitioner] approached the victim from behind and grabbed the victim's hair so forcefully that it lifted her off the floor. The [petitioner] then pulled the victim to the side of the dance floor where the victim hit her head on a pole. Bishop described the victim as "upset, " "hurt, " and "crying." When Bishop approached the arguing couple, the victim did not acknowledge her, so Bishop left to pay her bill. When she returned to where the [petitioner] and the victim had been arguing, they were gone.
Bishop testified that, as she exited Club Up, she heard screaming. Bishop ran toward the screaming and saw that the victim was partially in a car by which Hill was also standing. The [petitioner] pushed Hill down and then picked up the victim's legs, put them inside the car, and closed the car door. Bishop said that she opened the passenger side door of the car to check on the victim, who had lost her shoes in the struggle and was crying with her head in her hands. Before Bishop could speak with the victim, the [petitioner] started the car and drove it in reverse, causing the car door to knock Bishop over, and then sped away. Bishop said that she sustained bruises and scratches from being knocked to the ground by the car door. Bishop said that later, at the police station, she gave a statement about these events to the police.
On cross examination, Bishop agreed that, while she was present during the altercation between the victim and the [petitioner], the victim never indicated she wanted to leave the club with Bishop.
The victim testified that, at the time of this incident, she lived with the [petitioner]. The victim said that on the night of July 29, 2006, she arranged to go out with some friends and to meet up with the [petitioner] later that night at Club Up. The victim rode to Club Up with Bishop, and, when they arrived, they drank and talked with friends. The victim admitted drinking that night and, although she did not recall how many drinks, she agreed that she was "intoxicated." When asked to describe her contact with the [petitioner] that night, the victim said the following:
The only thing that I really remember is I believe maybe [Hill] or [Bishop] and I were going to the dance floor to dance and I had saw him sitting at the bar and [Hill] and I went to say hi or whatever and then after that I don't really recall anything.
The victim further explained that she "bruise[d] very easily so [she] always [had] bruises." The State then showed the victim photographs taken the morning of this incident, and she identified a knot on her head in one of the photographs. The victim testified that she did not have that knot on her head before she went to Club Up that night.
On cross-examination, the victim testified that she did not know how she got the knot on her head. The victim confirmed that she remembered speaking with the [petitioner] at the bar and the next thing she remembered was a police officer pulling them over for speeding. The victim said that she spoke with the police officer, outside the [petitioner]'s presence, and that she never told the police officer that she was in trouble or needed assistance. The police officer then released the [petitioner] and victim, and they went to their apartment. At some point, the victim wanted cigarettes, so the [petitioner] drove the victim to a store where police officers asked the [petitioner] and victim to go to the Kingsport Police Department. The victim agreed that she and the [petitioner] "voluntarily" went to the police station.
Madison Hill testified that she knew the victim because the two worked together at Cheddar's restaurant. Hill said that on the night of July 29, 2006, she went to Club Up with the victim and Bishop. While out on the dance floor, the [petitioner] approached the victim, grabbed her by the hair, and in the course of doing so knocked the victim's head against Hill's head. Hill said she then watched as the [petitioner] "push[ed], shov[ed], and dr[u]g" the victim outside. The victim fought against the [petitioner], kicking and screaming. Hill followed the [petitioner] and victim out into the parking lot where the [petitioner] carried the victim over his shoulder and then put her into his car. The victim tried to get out of the car, and Hill attempted to help her. After trying unsuccessfully to get the victim out of the car, Hill went to the back of the car to get the license plate number. While she was doing so, the [petitioner] backed up and hit Hill, knocking her down and scraping her right knee. On cross-examination, Hill admitted that she had been drinking that night and agreed she was "[v]ery" intoxicated. Hill clarified that she did not think the [petitioner] hit her with the car intentionally. She further explained that the reason she tried to get the license plate number and help the victim out of the car was because she believed the victim needed "protection and help." Hill said that the victim, "didn't want to leave."
Matthew Smith testified that he drove to Club Up on the night of July 29, 2006, to give Bishop a ride home. When he arrived, Smith observed the [petitioner] dragging the victim down the sidewalk while the victim screamed, "Help me, help me, please somebody help me." Smith watched as the [petitioner] put the victim in a car and "quickly" drove off.
Officer Penny Makowski, a Kingsport Police Department officer, testified that she interviewed Madison Hill, Lindsey Bishop and Corrine Roebuck, each of whom witnessed these events. Officer Makowski said that she also interviewed the victim, who she described as "very upset, crying, injured, [and] scared" during the course of the interview.
Based upon this evidence, a jury convicted the [petitioner] of aggravated kidnapping and domestic abuse. The trial court merged the two convictions and ordered the [petitioner] to serve eight years and ...