Court of Criminal Appeals of Tennessee, Knoxville
Session January 22, 2015.
Appeal from the Criminal Court for Hamilton County No. 280013 Don W. Poole, Judge.
The defendant, Harold Francis Butler,  appeals his Hamilton County Criminal Court jury convictions of felony murder, attempted especially aggravated robbery, attempted first degree murder, and employing a firearm during the commission of a dangerous felony, challenging the trial court's denial of his pretrial motion to dismiss based upon the failure to collect certain evidence. In addition, the defendant claims the trial court erred by denying the defendant's request to call certain witnesses, by permitting the State to impeach its witness and to introduce evidence through a prior recorded statement, and by limiting the defendant's ability to cross examine a witness at trial. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
Jay A. Perry, Chattanooga, Tennessee, for the appellant, Harold Francis Butler.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; William H. Cox, District Attorney General; and Cameron Williams and Lance Pope, 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 H. Montgomery, Jr., JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE.
In April 2011, the Hamilton County Criminal Court grand jury charged the defendant, as well as Steven Ballou, Unjolee Tremone Moore, and John Thomas Simpson, with one count each of first degree premeditated murder, felony murder, attempted especially aggravated robbery, attempted first degree murder, and employing a firearm during the commission of a dangerous felony, all arising out of the murder and attempted robbery of Bernard Hughes and the attempted murder of Tim Westfield. The trial court conducted a jury trial in September 2013.
The State's proof at trial showed that on the evening of June 28, 2010, Timothy Westfield, Myra Collier, and Cindy Cross were visiting their friend, Bernard Hughes, at his apartment on Oakwood Drive in Chattanooga. Shortly before 11:00 p.m., someone knocked on Mr. Hughes's front door. Mr. Hughes looked through the peephole on the door and turned back to Mr. Westfield with a "peculiar" look on his face. Mr. Hughes then opened the front door. Mr. Westfield testified that he saw two men standing outside the front door; one man, later identified as the defendant, was wearing a ski mask, a black baseball cap, a black jacket, and black pants, and that man ordered Mr. Hughes to "lay it down, " which Mr. Westfield interpreted to mean that the men were there to rob Mr. Hughes. Mr. Westfield identified the other man as John Simpson.
Mr. Hughes immediately ran outside and closed the front door behind him. Mr. Westfield instructed Ms. Collier and Ms. Cross to go upstairs, and Mr. Westfield hurried outside. As soon as Mr. Westfield appeared outside, he noticed that Mr. Hughes was attempting to fight off both of the would-be robbers. The defendant then raised a handgun and fired two shots at Mr. Westfield, striking him in his left forearm and right ring finger. Mr. Westfield briefly lost consciousness. When he regained consciousness, he saw a silver Nissan Maxima pull up, saw someone get into the Maxima, and saw the car pull away. Mr. Westfield attempted to render aid to Mr. Hughes, who was lying in a pool of blood on the front porch just outside his front door, and Mr. Westfield yelled for Ms. Collier and Ms. Cross to call 9-1-1. Mr. Westfield retrieved a blanket from the sofa in Mr. Hughes's apartment and used it to cover Mr. Hughes's body. The medical examiner, Doctor James Metcalfe, testified that gunshot wounds to Mr. Hughes's head and chest caused his death and that the manner of death was homicide.
Mr. Westfield testified that he had never seen Mr. Simpson prior to June 28 but that he had seen the defendant on several prior occasions, including during the time period in which both the defendant and Mr. Westfield had attended barber college together. Mr. Westfield admitted at trial that he initially told law enforcement officers that he did not know either of the men who attempted to rob Mr. Hughes, but he later identified the defendant, explaining that both he and the defendant have very distinctive eyes and noses. Mr. Westfield stated that he was "an artist" and that he paid "very close attention to detail." Mr. Westfield explained that he and the defendant both share a "high bridge" on their noses, which, according to Mr. Westfield, is uncommon among African-Americans and is usually a sign of "Indian heritage."
Chattanooga Police Department ("CPD") Officer Ken Burnette testified that, when he responded to the crime scene on June 28, he collected two .45-caliber shell casings and one live round of .45-caliber ammunition. He also collected one size-eight athletic shoe and a white baseball cap. He later processed a gold Nissan Maxima owned by Unjolee Moore. In the trunk of the Maxima, Officer Burnette found a pair of size eight-and-a-half Jordan athletic shoes and a ski mask, and he located a light blue bandana on the rear floorboard of the vehicle. Mr. Westfield testified that the size-8 shoe collected from the crime scene belonged to the defendant. Ms. Collier explained that Steven Ballou was her ex-boyfriend and that she knew Mr. Moore only by association. Ms. Collier recalled that on one prior occasion, Mr. Moore and Mr. Ballou had stopped by Mr. Hughes's apartment when Ms. Collier was visiting him. Ms. Collier testified that she did not know either Mr. Simpson or the defendant.
John Simpson testified as a witness for the State and denied that he knew who had killed Mr. Hughes. Over the defendant's objection, the trial court allowed the prosecutor to introduce the prior recorded statement Mr. Simpson made to law enforcement officers on July 15, 2010, in which Mr. Simpson stated that the defendant had, in fact, shot and killed Mr. Hughes.
CPD Sergeant Michael Wenger testified that, following an interview of Mr. Moore, he obtained arrest warrants for Mr. Simpson and the defendant. The defendant turned himself in to authorities on July 14, and Mr. Simpson was arrested on that same date. Sergeant Wenger interviewed Mr. Simpson on July 15 after fully advising him of his rights, and Mr. Simpson executed a written waiver of those rights. Sergeant Wenger testified that he did not threaten or coerce Mr. Simpson and that he did not discuss any potential "deals" with Mr. Simpson prior to his statement.
With this evidence, the State rested. Following the trial court's denial of the defendant's motion for judgments of acquittal and a Momon colloquy, the defendant chose not to testify but did elect to present proof. Doctor Jeffrey Neuschatz, a professor of psychology at the University of Alabama at Huntsville, testified as an expert in the area of eyewitness identification. Doctor Neuschatz addressed the fallacies inherent in eyewitness identification and explained the concept of unconscious transference, wherein a person views a suspect in a lineup and selects that individual simply because the suspect looks familiar but not because the suspect actually committed the crime.
Based on this evidence, the jury convicted the defendant as charged of felony murder, attempted especially aggravated robbery, attempted first degree murder, and employing a firearm during the commission of a dangerous felony. The trial court imposed an automatic sentence of imprisonment for life. Following a sentencing hearing, the trial court sentenced the defendant as a standard offender to concurrent sentences of 12 years for the attempted especially aggravated robbery conviction and 25 years for the attempted first degree murder conviction, to run consecutively to the life sentence. In addition, the trial court sentenced the defendant to six years' incarceration for the conviction of employing a firearm during the commission of a dangerous felony, to be served consecutively to the 25-year sentence, for a total effective sentence of life plus 31 years.
Following the denial of his timely motion for new trial, the defendant filed a timely notice of appeal. In this appeal, the defendant challenges neither the sufficiency of the convicting evidence nor the propriety of his sentence, arguing only that the trial court made several erroneous constitutional and evidentiary rulings. Specifically, the defendant contends that the trial court erred by denying his motion to dismiss for the State's failure to collect evidence; by refusing to allow the defendant to call certain witnesses at trial regarding the failure to collect evidence; by allowing the State to impeach Mr. Simpson and to introduce evidence of Mr. Simpson's prior inconsistent statement; and by impermissibly limiting the defendant's cross-examination of Mr. Simpson. We consider each claim in turn.
I. Failure to Collect Evidence
The defendant first contends that the trial court erred by denying his motion to dismiss and his subsequent motion to reconsider the dismissal due to the State's failure to collect a cellular telephone that once belonged to the defendant. The defendant argues that the State's failure to preserve this potentially exculpatory evidence resulted in a due process violation. The State responds that no duty to preserve the telephone existed and that, as such, no due process violation occurred.
At the April 2012 hearing on the defendant's motion to dismiss, Sergeant Wenger testified that, on July 13, 2010, he was contacted by CPD Investigator Crider, who informed him that he had located the defendant's cellular telephone at a residence at 2004 Curtis Street and that the telephone was in the possession of Antonio Watkins. When Sergeant Wenger arrived at the Curtis Street address, he was approached by Captain McPherson,  who instructed him "not to take the phone and to not question anyone about it" because "he thought the [federal] marshals needed it." A short time later, Sergeant Wenger received a call from Sergeant Bill Phillips. Sergeant Phillips stated that he had received a call from Sergeant Wenger's superior, Lieutenant Eidson, who had instructed Sergeant Phillips to tell Sergeant Wenger to comply with Captain McPherson's order.
Sergeant Wenger later spoke with the federal marshals on the scene, and the marshals stated that they no longer needed the cellular telephone; the marshals then relayed this information to Captain McPherson. Captain McPherson then told Sergeant Wenger that he was permitted to interview Mr. Watkins about the telephone but that he was not permitted to take possession of the telephone. After speaking with Mr. Watkins, Sergeant Wenger learned that Mr. Watkins had purchased the telephone on approximately July 10. Sergeant Wenger attempted to review the contents of the cellular telephone, and he did find "some pictures of [the defendant] on the phone, " but the photographs were not related to the case, and because he was unfamiliar with the operation of the telephone, Sergeant Wenger was unable to locate or review any text messages or any other stored data. Sergeant Wenger confirmed that this was the first occasion on which he had been ordered not to collect potential evidence.
Sergeant Phillips testified that Lieutenant Eidson had called him and requested that he contact Sergeant Wenger to tell him "to leave the phone alone." Sergeant Phillips immediately contacted Sergeant Wenger and relayed the message. Sergeant Phillips admitted that, in 23 years in law enforcement, he could not recall any other occasion on which he had been asked to inform someone not to collect evidence.
Captain McPherson testified that Ms. Collier was his niece and that he was aware that she had been present at the scene of the murder but that he could not recall if she had contacted him regarding this case. Captain McPherson did not recall ordering anyone not to recover a cellular telephone, although he admitted it was possible that he had so instructed Sergeant Wenger. Captain McPherson denied having any information about the potential data contained on the cellular telephone at issue. Captain McPherson admitted that he was the highest-ranking officer on the scene on July 13, 2010, but testified that he was simply "observing" and that a telephone at the scene "was irrelevant" to him.
Antonio Watkins testified that he knew the defendant "from the neighborhood." According to Mr. Watkins, he purchased the cellular telephone from someone whose name he could not recall at the Okey Dokey market on approximately July 11, 2010. Mr. Watkins denied purchasing the telephone from the defendant and denied telling law enforcement officers the same. Mr. Watkins testified that "everything was clear when [he] got the phone, " stating that there were no photographs or other data stored on it when he purchased it. Mr. Watkins stated that he no longer owned the telephone, and he did not recall stating that he had purchased the telephone in exchange for "two dime bags of marijuana."
Sergeant Wenger testified as a rebuttal witness and stated that Mr. Watkins had agreed to allow him to examine his telephone on July 13. At that time, Mr. Watkins told Sergeant Wenger that a white Nissan Altima pulled up to him on Roanoke Street; a white female was driving and the defendant was in the passenger seat. Mr. Watkins told Sergeant Wenger that the defendant offered to sell him the telephone in exchange for two "dime bags" of marijuana, and Mr. Watkins agreed to make the trade. Sergeant Wenger confirmed that he saw at least one photograph of the defendant on the telephone.
The trial court denied the defendant's motion to dismiss, finding that any potentially exculpatory data contained within the telephone was "entirely speculative" and that, therefore, the State had no duty to preserve the telephone. The defendant then filed a motion to reconsider, and the trial court conducted a brief hearing on the motion, at which only Sergeant Wenger testified. Sergeant Wenger stated that, just days prior to the April hearing on the motion to dismiss, Captain McPherson told him that "the reason he had instructed [Sergeant Wenger] not to take the phone was because it was in the possession of Antonio Watkins and [Captain McPherson] didn't feel like we had legal standing to take it at the time." Captain McPherson made this statement in the presence of Investigator Narramore,  who told Captain McPherson, "all you can do is tell the truth." The defendant argued that Captain McPherson's statement was contrary to his testimony at the April hearing, in which he stated that he did not recall ordering anyone to not collect the telephone and that he did not know why he would have given such an order. The trial court denied the motion to reconsider, finding that, "[e]ven if [Captain McPherson] was acting in bad faith, . . . both the [S]tate's duty to preserve the cell phone in issue and the exculpatory nature of the phone are entirely speculative" and that "a trial without the phone will not be fundamentally unfair."
In State v. Ferguson, our supreme court "explained that the loss or destruction of potentially exculpatory evidence may violate a defendant's right to a fair trial." State v. Merriman, 410 S.W.3d 779, 784 (Tenn. 2013) (citing State v. Ferguson, 2 S.W.3d 912, 915-16 (1999)). The court observed that "the due process required under the Tennessee Constitution was broader than the due process required under the United States Constitution" and rejected the "bad faith" analysis espoused by the United States Supreme Court, Merriman, 410 S.W.3d at 784-85 (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding "that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law")), in favor of "a balancing approach in which bad faith is but one of the factors to be considered in determining whether the lost or destroyed evidence will deprive a defendant of a fundamentally fair trial, " Merriman, 410 S.W.3d at 785. The supreme court "observed that fundamental fairness, as an element of due process, requires a review of the entire record to evaluate the effect of the State's failure to preserve evidence." Id. at 784-85 (citing Ferguson, 2 S.W.3d at 914, 917).
To facilitate this "balancing approach, " our supreme court ruled that the trial court must first "determine whether the State had a duty to preserve the evidence, " Merriman, 410 S.W.3d at 785, and observed that the State's duty to preserve was "limited to constitutionally material evidence, " id. The court held that to be "constitutionally material, " the evidence "must potentially possess exculpatory value and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. (citing Ferguson, 2 S.W.3d at 915, 918). "If the trial court determines that the State had a duty to preserve the evidence, the court must determine if the State failed in its duty." Merriman, 410 S.W.3d at 785 (citing Ferguson, 2 S.W.3d at 917). If the ...