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State v. Anderson

Court of Criminal Appeals of Tennessee, Knoxville

June 29, 2015

STATE OF TENNESSEE
v.
FREDERICK ANDERSON Count Charge Victim

Assigned on Briefs March 25, 2015

Appeal from the Criminal Court for Hamilton County No. 280227 Barry A. Steelman, Judge

Donna Miller (at sentencing and on appeal); Ardena J. Garth, District Public Defender; and Mary Ann Green and Sheretta Smith, Assistant District Public Defenders (at trial), Chattanooga, Tennessee, for the appellant, Frederick Anderson.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Neal Pinkston, District Attorney General; and Bret Alexander and Lance Pope, Assistant District Attorneys General, for the appellee, State of Tennessee.

Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which John Everett Williams, J., joined.

OPINION

ROBERT L. HOLLOWAY, JR., JUDGE

I. Factual and Procedural Background

Initially, the Defendant was indicted in case number 277381 with fourteen counts[1] in connection with a home invasion at the residence of Kim Schmitt on June 22, 2010. In May 2011, the grand jury issued a superceding indictment, case number 280227, charging the Defendant with the following offenses:

Count

Charge

Victim

1

Especially Aggravated Kidnapping

L.S.

2
Employment of a Firearm During the Commission of a Dangerous Felony, to-wit: Especially Aggravated Kidnapping
L.S.
3
Especially Aggravated Kidnapping
J.S
4
Employment of a Firearm During the Commission of a Dangerous Felony, to-wit: Especially Aggravated Kidnapping
J.S.
5
Aggravated Burglary
Kim Schmitt
6
Employment of a Firearm During the Commission of a Dangerous Felony, to-wit: Aggravated Burglary
Kim Schmitt
7
Aggravated Robbery
Kim Schmitt
8
Aggravated Robbery
Amanda Schmitt

9

Aggravated Robbery

J.S.

The First Ex Parte Hearing

The day before trial, the trial court held an in-chambers, ex parte hearing at the request of defense counsel ("the first ex parte hearing"). Defense counsel reported that the Defendant's wife, Stephanie Anderson, had intended to voluntarily come to the trial to testify during the Defendant's case-in-chief. According to defense counsel, Mrs. Anderson's testimony was material to the defense. However, defense counsel was concerned that Mrs. Anderson would no longer be available for trial. Defense counsel explained that Mrs. Anderson lived in New Mexico and that she had purchased a non-refundable plane ticket in order to travel to Tennessee for the original trial date. However, because the trial had been continued for two weeks, Mrs. Anderson's finances would not allow her to buy another plane ticket without reimbursement of her travel expenses. Additionally, defense counsel had learned that Mrs. Anderson had "moved on in her life" since the Defendant's arrest. Defense counsel explained that Mrs. Anderson had not previously been subpoenaed because defense counsel believed that she would appear voluntarily. Defense counsel asked that the court issue a subpoena for an out-of-state witness to compel Mrs. Anderson's attendance and to allow for her travel expenses to be reimbursed.

Defense counsel telephoned Mrs. Anderson, and the trial court questioned her on speaker phone without objection from defense counsel. Mrs. Anderson told the court that she lived in New Mexico and was employed at a home health care agency. She was married to the Defendant, and no separation or divorce paperwork had been filed to terminate their relationship. Mrs. Anderson explained that she had planned to voluntarily testify at trial and that she had purchased a non-refundable plane ticket to travel to Tennessee. However, because the trial date had been changed, Mrs. Anderson could not afford to purchase another plane ticket or a hotel room. Following the hearing, the trial court issued the subpoena for an out-of-state witness to allow for reimbursement of Mrs. Anderson's travel expenses.

Trial

The charged offenses took place on June 22, 2010, at Kim Schmitt's home on 13th Avenue in Chattanooga. At the time, Kim, Kim's mother Dorothy Melton, and Kim's eleven-year-old twins, J.S. and L.S., all lived in the home.[2] Kim's eighteen-year-old daughter, Amanda, was visiting the home. Melanie Woods, [3] Brian Woods, Sr., and their son B.W. ("the Woods family") also lived in the home. Both Kim and Ms. Melton suffered from serious health problems; Ms. Melton was bedridden, and Kim required oxygen at all times. Mrs. Woods served as their caretaker and helped with the children.

On the evening of June 22, 2010, Ms. Melton was in her room at the back of the house. Kim and Amanda were in Kim's bedroom playing a computer game; Kim was sitting at her desk, and Amanda was sitting on the bed. L.S. and B.W. were in the living room. J.S. was in his room playing a video game. Mr. Woods was sitting outside on the front porch. Mrs. Woods was moving back and forth between Kim and Ms. Melton's bedrooms.

A few minutes before 10:00 p.m., the Defendant and another black male entered the residence without the permission of anyone who lived there. As Mrs. Woods walked through the kitchen on her way to Kim's room, she saw the Defendant standing between the stove and the refrigerator. Before she could ask him who he was or what he was doing there, the Defendant said, "Bitch, don't fing look at me." Mrs. Woods immediately looked at the floor. The Defendant hit her on the back of the head with a gun. He then started shoving Mrs. Woods toward Kim's bedroom door.

Sitting in her room, Kim heard a commotion going on in another part of the house. She stood up to close the door to her bedroom, and she saw Mrs. Woods walking down the hallway followed by the Defendant. Kim closed the door to her bedroom but remembered that L.S. was in another part of the house, so she opened her door to try to prevent the Defendant from becoming angry. When she opened the door, the Defendant came into her room with a gun and shoved her into her desk chair, pointing the gun at her head. At the time, Kim had her three chihuahuas in her room, and they started "raising Cain." The Defendant told Kim, "You better get your [f]'ing dogs before I kill them . . . You better get them right now." Kim responded, "Okay. I'm trying. I'm trying." Kim's oxygen device had been "yanked" off of her face during the altercation. She was scared and could not breathe, but, nevertheless, she tried to calm the dogs.

Kim and the Defendant continued to yell and scream at each other. The Defendant repeatedly said, "B*, don't look at me, " and "Give me the money." Kim was screaming, crying, and telling the Defendant, "Don't hurt anyone." During the altercation, the Defendant "pistol-whipped" Kim on the side of her head, cutting her right ear and causing it to bleed.

At some point after the Defendant entered Kim's bedroom, Amanda unsuccessfully tried to call 911 from her cell phone. While Amanda was dialing, the Defendant demanded that Amanda give him the phone, reached over Kim's bed, and hit Amanda on the head with his gun. Amanda refused to give the Defendant her phone, and the Defendant grabbed her by the ankles, pulled her off the bed, and began "stomping" on her neck and back. He then took the phone from Amanda and covered her with a sheet from the bed.

The Defendant turned his attentions back to Kim and continued to push her and "yank" her hair. Because Kim had lost her oxygen, she could not breathe and begged for her oxygen back. She also implored the Defendant not to hurt her children. The Defendant demanded that Kim give him money. Kim tried to hand him a small bag she used to store money, but the Defendant hit her again and caused the bag of money to fall to the floor. Kim tried to reach for the bag, but the Defendant continued to hit her.

While the Defendant was confronting Kim, J.S. opened the door to L.S.'s bedroom[4]and saw a man in a black shirt standing in the doorway of his mother's bedroom. He heard the man demand money. Scared, J.S. closed the door to L.S.'s room and locked it. He then walked back to his room to call 911. During his conversation with the 911 operator, the yelling emanating from Kim's bedroom stopped. J.S. returned to his sister's door and opened it. When he opened the door, the Defendant hit him on the head with a gun, and J.S. fell to the ground. J.S. dropped his phone when he fell, and he did not see his phone again for the rest of the night. The Defendant dragged J.S. into his mother's room where Amanda was lying on the floor. J.S. remained lying on the floor of his mother's room, as instructed by the Defendant, while the Defendant went to another part of the house.

Eventually, the Defendant came back into Kim's bedroom and made her walk to the bathroom. He then shut Kim in the bathroom. Next, the Defendant ordered Amanda and J.S. to go into the bathroom with Kim. The Defendant instructed them to stay inside the bathroom and closed the door behind him.

Even though J.S. dropped his cell phone, the 911 connection remained opened. The recording of the 911 call indicates that the Defendant took possession of J.S.'s cell phone and carried it with him for the duration of the offense and as he fled the scene. In the recording, the Defendant can be heard forcing Kim into the bathroom. As the Defendant was forcing Kim into the bathroom, Kim asked for oxygen, and the Defendant responded by telling Kim to sit down in the bathroom. The recording also includes an exchange between the Defendant and Ms. Melton in Ms. Melton's bedroom. After that exchange, the Defendant can be heard forcing Amanda and J.S. into the bathroom. Shortly thereafter, the Defendant can be heard running from the scene.

While the Defendant was arguing with Kim and Amanda in Kim's bedroom, Mrs. Woods had been pushed back into the living room by the Defendant. A second man stood in the living room, holding a gun. L.S., B.W., and Mr. Woods were lying on the floor of the living room. The second man instructed Mrs. Woods to lie on the floor as well, and she complied. After a few minutes, the second man told Mrs. Woods to get up and handed her a roll of duct tape. He instructed her to duct tape her husband's hands together, and she complied.

While she was duct taping Mr. Woods's hands, Mrs. Woods heard a knock on the front door of the home. The second man answered the door and found two women, later identified as Nancy Gann and Betty Palmer, standing on the front porch. The second man pulled the women in and forced them to lie down on the floor. Mrs. Woods continued to duct tape her husband's hands as instructed, but the duct tape began to tear into uneven, narrow strips. After duct taping Mr. Woods, Mrs. Woods was instructed to duct tape the hands of L.S., B.W., Ms. Gann, and Ms. Palmer.

After she had duct taped everyone in the living room, the second man ordered Mrs. Woods to get down on her knees. Mrs. Woods believed the second man intended to duct tape her, but then she heard the Defendant say, "Is everything all right, Big Dog? Big Dog, you ready, Big Dog?" Mrs. Woods was told to stand up and was pushed into the bathroom with Kim, Amanda, and J.S.

They stayed in the bathroom for a few minutes until they believed the intruders had left. When they opened the bathroom door, Amanda observed the Defendant outside, standing in the road as if he was trying to decide which way to run. Amanda then lost consciousness in the hallway. L.S. was still duct taped in the living room, crying.

Police and ambulance personnel responded within minutes. As police arrived, they observed two men running from Kim's home. Officers gave chase and saw one of the suspects discard bags that he had been carrying and then cut through a nearby yard and out of the officers' sight. Police set up a perimeter and began searching for the suspects.

The Defendant was found hiding in a small "shack" behind one of the houses in Kim's neighborhood. J.S.'s cell phone, Amanda's cell phone, a black t-shirt, and a roll of duct tape were found in the shack with the Defendant. Forensic testing later matched the strips of tape used to bind the victims to the roll of duct tape found in the shack. A pistol, a pouch containing money, and a small bag containing Kim and Ms. Melton's medications were found in the road where police observed one of the suspects discard bags during the chase. These items were returned to the Schmitt residence.

Mrs. Anderson's Trial Testimony

At trial, Mrs. Anderson testified that she met the Defendant when they both lived in Atlanta, Georgia. They were married in 2007 and moved to Oak Ridge in 2008. In the summer of 2008, they decided to return to Atlanta but could not find housing, so they settled in Chattanooga. Eventually, Mrs. Anderson became pregnant with their youngest son, and in June or July of 2009, they moved to Atlanta so that the Defendant could work with his father's landscaping company.

On June 22, 2010, Mrs. Anderson, the Defendant, and their youngest son were traveling from their home in Atlanta to Oak Ridge to visit Mrs. Anderson's mother and oldest son.[5] Mrs. Anderson planned to pick up birthday presents and a cake for her youngest son's birthday in Oak Ridge. On the way to Oak Ridge, they stopped in Chattanooga in order to pick up a tax form from the Defendant's former employer, Popeye's Chicken. However, they were unable to get the form. The Defendant and Mrs. Anderson stayed in Chattanooga and visited with old friends for most of the afternoon. Around 7:30 p.m., Mrs. Anderson left the Defendant at a Wendy's near Kim's home and drove to Oak Ridge. The Defendant had planned to meet one of his acquaintances, Tiwon Billups, while Mrs. Anderson was in Oak Ridge. According to Mrs. Anderson, Mr. Billups lived next door to the Schmitt residence. Mrs. Anderson left Oak Ridge to return to Chattanooga around 9:00 p.m. When Mrs. Anderson arrived at Mr. Billups' home to pick up the Defendant, she saw police surrounding the area.

Mrs. Anderson recalled that the Defendant was wearing a black t-shirt and blue cotton pants before he was arrested. He was also wearing a sleeveless white undershirt, black shoes, and an Atlanta Braves hat. Mrs. Anderson confirmed that she and the Defendant were still married and that she still loved him. She stated that she would not lie for her husband.

Introduction of Jailhouse Phone Calls

At the beginning of the seventh day of the nine-day trial, before Mrs. Anderson testified, the State informed both the trial court and the Defendant that they intended to introduce recordings of phone calls the Defendant made to Mrs. Anderson from the jail (the "jailhouse phone calls") for the purpose of impeaching the Defendant if he chose to testify. Immediately before coming to court that day, the State had requested and received CD copies of over 300 jailhouse phone calls, and it had provided copies of the same to the Defendant along with a call log. The recordings captured a year and a half of the Defendant's phone calls—from the date of his arrest until the date the State requested the recordings. The Defendant's attorneys objected on the basis that they could not properly advise the Defendant about his right to testify without listening to the phone calls. After Mrs. Anderson completed her testimony, the trial court recessed until 9:00 the following morning to allow the Defendant to listen to the jailhouse phone calls.

The following morning, the Defendant introduced for identification the CDs containing the jailhouse phone calls and attached call log. In total, the CDs contained 680 of the Defendant's phone calls. The Defendant argued that his attorneys' office simply did not have enough staff to listen to all 680 phone calls in one night and asked that the trial court exclude the recordings on various grounds. The trial court ruled that any of the phone calls the Defendant made after the trial started could be introduced to impeach the Defendant's testimony if they were otherwise admissible under the rules of evidence.

The Defendant asked the State to identify which calls were made during the trial. He noted that the calls were "scrambled" on the CDs and it was difficult to determine which recordings were made after the trial began. The State responded that its CDs were in the same format as the Defendant's. The trial court denied the request and noted that the Defendant "kn[ew] what he said better than anybody else." Ultimately, the Defendant chose not to testify. He explained that he had made the decision not to testify when the State rested its case-in-chief-before the State sought to introduce the jailhouse phone calls.

The State then requested the jailhouse phone calls be introduced as rebuttal proof to impeach Mrs. Anderson's testimony. The Defendant objected, arguing that the State should have introduced the phone calls during its case-in-chief. The State argued that the phone calls could not have been introduced during its case-in-chief and that the jailhouse phone calls showed that Mrs. Anderson's testimony was based on a concocted story, which she discussed with the Defendant over the phone. The jailhouse phone calls would contradict Mrs. Anderson's testimony and show that it was fabricated.

The trial court listened to the five jailhouse phone calls the State sought to introduce. In those recordings, the Defendant and Mrs. Anderson discussed her testimony, the time line of their movements on the day of the offense, and what the Defendant was wearing on the day of the offense. At several points during the conversations, the Defendant and Mrs. Anderson challenged each other's recollections of their movements on the day of the offense. Mrs. Anderson stated that the Defendant was wearing a striped shirt on the day of the offense, but the Defendant told her he was wearing a black shirt. The Defendant also told Mrs. Anderson about another witness's testimony, even though the rule of sequestration had been invoked at the beginning of trial. Finally, the Defendant informed Mrs. Anderson that he told the court that there had been a "rift" in their marriage so that Mrs. Anderson would be reimbursed for travel expenses. Mrs. Anderson indicated there was no "rift" in the marriage. Mrs. Anderson denied knowing Mr. Billups, but she also told the Defendant that Mr. Billups was "a little b*."

The trial court held that the jailhouse phone calls directly replied to, explained, and perhaps contradicted, Mrs. Anderson's testimony. Further, the trial court concluded that the phone calls would allow for the jury to fairly assess Mrs. Anderson's credibility and weigh her testimony. Therefore, the recordings were admitted as rebuttal evidence.

The jury found the Defendant guilty as charged on all counts, except Count 2. For Count 2, the jury found the Defendant guilty of the lesser included offense of possession of a firearm with the intent to go armed during the commission of a dangerous offense, to-wit: the especially aggravated kidnapping of L.S.

Defense Counsel's Motion to Withdraw

After trial, but before sentencing, defense counsel filed a motion to withdraw. In that motion, defense counsel explained that the Defendant had misrepresented the status of his marriage to his attorneys. The trial court conducted another in-chambers, ex parte hearing on the motion to withdraw ("the second ex parte hearing"). In that hearing, defense counsel explained that Mrs. Anderson was initially very helpful and seemed to be a willing witness. However, as the trial approached, Mrs. Anderson became harder to reach, and defense counsel was concerned that she may have begun a relationship with another man. The Defendant also told defense counsel that there was a "rift" in his marriage to Mrs. Anderson and that Mrs. Anderson had a new boyfriend. Defense counsel reported this information to the court during the first ex parte hearing in order to secure funds to allow Mrs. Anderson to come to Tennessee to testify. However, after the jailhouse phone calls were played during the trial, it became evident that there was no rift ...


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