Court of Criminal Appeals of Tennessee, Nashville
Session February 10, 2015.
Appeal from the Circuit Court for Bedford County No. 17641 Franklin L. Russell, Judge.
Robert L. Marlow, Shelbyville, Tennessee, for the appellant, Tyrone Leroy Watts.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Robert Carter, District Attorney General; and Michael Randles and Richard Cawley, Assistant District Attorneys General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Timothy L. Easter, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE.
I. Factual and Procedural Background
On February 25, 2013, the Bedford County Grand Jury indicted the Defendant on two counts of filing a false report. On April 15, 2013, the grand jury issued a superseding indictment, charging the Defendant with two counts of terrorism. Following a trial on June 24-25, 2013, a jury convicted the Defendant in count one of the lesser-included offense of disorderly conduct, a Class C misdemeanor, and in count two of the lesser-included offense of attempted terrorism, a Class B felony. The trial court merged count one into count two and sentenced the Defendant, as a Range II multiple offender, to sixteen years in the Department of Correction. The trial court denied the Defendant's motion for new trial, and this timely appeal followed.
Kimberly Jo Joyce testified that she worked as the front desk secretary at Thomas Magnet School in December 2012. Ms. Joyce explained that visitors to the school were required to sign a visitor log, which she kept at her desk in the school's office. On the afternoon of December 12, 2012, Tina Watts and her husband, the Defendant, came into the school office and signed in as visitors. Mrs. Watts and the Defendant were bringing cupcakes for Mrs. Watts's son, W.T.,  and his class in order to celebrate W.T.'s birthday. Near the end of the school day, around 2:40 p.m., Mrs. Watts and the Defendant returned to the office and signed out. Ms. Joyce, who was on the phone when Mrs. Watts and the Defendant signed out, noticed that they had W.T. with them as they left.
Based upon prior conversations with the school's principal, Mindi DeWitt, Ms. Joyce knew that a court-ordered parenting plan restricted when Mrs. Watts could pick up W.T. from school. Mrs. Watts was only allowed to pick up W.T. every other Friday, unless the school received a phone call from W.T.'s father, Lamont Taylor, stating otherwise. On this particular day, Mr. Taylor had not notified anyone at the school that Mrs. Watts was picking up W.T. Ms. Joyce immediately got off of the phone and radioed Principal DeWitt, who was outside dismissing students for the day. Ms. Joyce informed the principal that Mrs. Watts had signed out W.T. and was walking out the front door with him. Principal DeWitt told Ms. Joyce that she had not talked to Mr. Taylor and that Mrs. Watts "can‟t do that." Ms. Joyce ran out the school's front door and stopped the Defendant, Mrs. Watts, and W.T. on the sidewalk. She explained to them that the school had not received a phone call from Mr. Taylor giving permission for Mrs. Watts to pick up W.T. The Defendant mentioned that it was "very cold outside" and suggested that they "go back in and talk about this."
When they returned to the school office, Ms. Joyce sat behind her desk, and Mrs. Watts stood in front of the desk. The Defendant and W.T. sat in two chairs that were about six or seven feet from the front of Ms. Joyce's desk. Ms. Joyce attempted to call Mr. Taylor several times but could not reach him. Mrs. Watts then showed Ms. Joyce a text message from Mr. Taylor that she had received the night before, in which Mr. Taylor said that Mrs. Watts could pick up their son from school the following day. After seeing the text message, Ms. Joyce again radioed Principal DeWitt. She explained that Mrs. Watts had a text message from Mr. Taylor but that she could not reach Mr. Taylor by phone. The principal instructed Ms. Joyce that school personnel had to speak to Mr. Taylor before allowing Mrs. Watts to leave with W.T.
While Ms. Joyce was attempting to call Mr. Taylor, Mrs. Watts went over to W.T. and told him, "Once again . . . [y]ou can thank your dad, Lamont, for this." W.T. was upset and crying. Ms. Joyce then heard the Defendant say to W.T., "Son[, ] this is what stress will do to you. You will die by the time you‟re . . . [twelve] years old with a heart attack." Ms. Joyce continued to try to reach Mr. Taylor by phone but was not successful. After about ten or fifteen minutes, the Defendant told Mrs. Watts, "We‟ve got two options . . . [w]e can either contact your attorney or we can keep trying to get in touch with him . . . ." While still on the phone attempting to contact Mr. Taylor, Ms. Joyce then heard the Defendant tell W.T.,
When I get back to the doctor next Tuesday and  get the news that I have cancer . . . [y]ou have nothing to worry about . . . I‟m going to come back in here with an AK-47 . . . I‟m going to kill everybody in here and then kill myself.
Ms. Joyce testified that she felt "panicked" and "scared" when she heard this. Ms. Joyce immediately went into the office behind her desk and told the two other staff members there that she was going to get the principal. Ms. Joyce ran down the hallway to where Principal DeWitt was dismissing students and told Principal DeWitt what the Defendant had said. When Principal DeWitt entered the front office, she told the Defendant, "This is your one and only warning. . . . [y]ou don‟t say something like that in my school." The principal then went into her private office to make some phone calls.
The Defendant and W.T. left the office to look at a gingerbread sculpture located in the front lobby. Mrs. Watts then apologized for the Defendant's comment. After the Defendant and W.T. had returned to the office, Principal DeWitt finished her phone calls and came out of her office. At this point, the Defendant again said something to W.T. "about getting an AK-47 and coming back in there and killing everybody there including himself."
Ms. Joyce testified that, although she felt scared and intimidated by the Defendant's comments, she did not call the police after hearing the statements. At one point, she asked Principal DeWitt if they should call 9-1-1, and Principal DeWitt said not to call. Ms. Joyce testified that she left school at 3:30 p.m., about 20 minutes after the Defendant and Mrs. Watts. As she was leaving the school parking lot, Ms. Joyce saw Officer James Wilkerson with the Shelbyville Police Department and explained to the officer what had happened that afternoon.
On cross-examination, Ms. Joyce explained that, while the Defendant had been talking loudly enough that she could hear him, nothing in the Defendant's tone of voice caused Ms. Joyce to notice him. Ms. Joyce stated that she believed the Defendant's threat and, if she had it to do over again, she would immediately call 9-1-1. She acknowledged that the Defendant had said he was going to go somewhere, see a doctor, get bad news, and then he would come back to the school. When Ms. Joyce was asked whether the Defendant "was going to go outside and come right back in, in the next 15, 20 minutes, " she replied, "Well, still he made the threat. Whether he came right back in or he came the next day."
Susan McClenney, the bookkeeper for Thomas Magnet School, testified that she was in the school's office on December 12, 2012, when the Defendant and Mrs. Watts were attempting to sign out W.T. Ms. McClenney was at her desk that was located in an area behind Ms. Joyce's desk. Because of a wall separating the two areas, Ms. McClenney could not see Ms. Joyce's desk, but she could hear Ms. Joyce talking on the phone. Ms. McClenney was also aware that a parenting plan restricted when Mrs. Watts could pick up W.T. from school and that Mr. Taylor had to send a note or call the office staff to approve her picking up W.T. on unscheduled days. From her desk, Ms. McClenney could not see the Defendant, but she heard him tell W.T. that "he was going to bring an AK-47 to school and kill everybody in the office and then he was going to kill himself." Ms. McClenney testified that she took the Defendant's comment seriously, was "scared, " and "couldn‟t believe he just said that." When asked, Ms. McClenney stated that she had felt like she was in imminent danger. Ms. McClenney wanted to report the Defendant's comment to the police, and after the Defendant and Mrs. Watts left the office, she asked Principal DeWitt about calling 9-1-1.
On cross-examination, Ms. McClenney stated that, ultimately, she did not call the police or anyone else about the incident and she left the school about ten minutes after the Defendant and Mrs. Watts. She explained that Principal DeWitt did not want to call the police because the science club was meeting and they "had a gym full of children." She clarified that the Defendant was not yelling and he did not sound angry when he made the remark to W.T. Ms. McClenney testified that, at one point, the Defendant went outside the office with W.T. to look at the gingerbread sculpture in the lobby. Although there was a door separating the office and the lobby, Ms. McClenney did not feel that she needed to get up and lock the door at that time. According to Ms. McClenney, the school did not revise its policies on how to handle such an event following this incident. She said that she is still supposed to notify the principal but that she would call 9-1-1 if something similar happened again.
Sandy Allen, the school nurse at Thomas Magnet School, testified that she was in the office helping with afternoon dismissal when the Defendant and Mrs. Watts came into the office with W.T. The Defendant and W.T. sat in some chairs in the front office about five or ten feet away from Ms. Joyce's desk. Ms. Allen explained that she was standing at Ms. McClenney's desk, which was behind a partition about fifteen feet away from Ms. Joyce's desk. From Ms. McClenney's desk, Ms. Allen heard the Defendant say that "he was going to come back to school and shoot everybody and then shoot himself." Ms. Allen was scared and intimidated by the Defendant's statement, but she did not do anything to address the threat. She continued to stand by Ms. McClenney's desk. Ms. Allen explained that she did not call 9-1-1 because she believed that Principal DeWitt was going to call the police and "handle the situation." Ms. Allen left the school at her normal time, 3:00 p.m. She testified that she thought that the principal should have called the police.
On cross-examination, Ms. Allen acknowledged that, when the Defendant made the threatening comment, he was talking to W.T. The Defendant was not talking to her. Although the Defendant did not raise his voice, he was speaking loudly enough that Ms. Allen could hear him. Ms. Allen did not find the tone of the Defendant's voice alarming; rather, it was the content of his comment that caused her to be alarmed and fearful. Ms. Allen explained that she wanted to leave the building because of the Defendant's threat. Ms. Allen did not personally speak to the principal or hear anyone else ask the principal about calling the police. She testified that she had not felt the need to call law enforcement as it was Principal DeWitt's job to call 9-1-1.
School principal, Mindi DeWitt, testified that, in the early afternoon of December 12, 2012, she saw the Defendant and Mrs. Watts in the school's hallway carrying cupcakes to W.T.'s birthday party. At 2:20 p.m., Principal DeWitt made afternoon announcements and then went outside to the front of the building to dismiss bus riders and car riders. Around 2:40 p.m., as she was directing traffic, Principal DeWitt received a call over her walkie-talkie from Ms. Joyce. Ms. Joyce informed her that Mrs. Watts wanted to sign out W.T. from school that day. Principal DeWitt told Ms. Joyce that was "not going to be okay because it was not [Mrs. Watts's] day to pick him up." Ms. Joyce advised that she would attempt to call Mr. Taylor and obtain permission. Principal DeWitt remained outside, dismissing car riders. About ten minutes later, Ms. Joyce called her again over the walkie-talkie. Ms. Joyce said that she "needed [Principal DeWitt] to come into the office." She met Ms. Joyce in the hallway on the way to the office and noticed that Ms. Joyce was visibly upset. Ms. Joyce told Principal DeWitt about the Defendant's threatening comment.
Inside the office, Principal DeWitt spoke to Mrs. Watts and then went into her private office to look at her copy of Mrs. Watts's parenting plan. Based upon the wording of the parenting plan, Principal DeWitt felt that she needed to speak to Mr. Taylor before allowing W.T. to leave with Mrs. Watts. She went to Ms. Joyce's desk and attempted to call Mr. Taylor. At that point, Principal DeWitt heard the Defendant say to W.T., "That's okay, I‟ve got a, you know, I‟ve got to go to the doctor on the 19th and, you know, when I find out I have cancer, I‟m going to come back and take care of this." Although she did not hear the Defendant's initial threat, Principal DeWitt believed that the Defendant's comment referred back to the original threat. Principal DeWitt immediately told the Defendant, "Sir, you are not welcome to come to this school and make those kind[s] of statements, if you‟re going to say things like that, you‟re not going to be welcome in Thomas [Magnet School] anymore."
Principal DeWitt testified that, although she believed the Defendant's statement was intended to intimidate her, she was not scared. After being unable to reach Mr. Taylor, she called other individuals who were on the "authorized pickup list" for W.T. After calling through the list, Principal DeWitt stepped back into her office and called her supervisor. After speaking to her supervisor, Principal DeWitt told Mrs. Watts that W.T. could not go home with her unless they heard from Mr. Taylor. Principal DeWitt testified that the Defendant raised his voice a couple of times and was pacing ...