Court of Criminal Appeals of Tennessee, Knoxville
Session Date April 28, 2015
Appeal from the Criminal Court for Knox County No. 94181 Mary B. Leibowitz, Judge
Defendant, Vickie Lynn Perry, appeals her convictions for first degree murder and robbery, arguing: 1) that there is insufficient evidence to establish that she killed the victim while committing felony robbery; 2) that the State introduced improper evidence; 3) that the trial court improperly admitted evidence of a specific instance of conduct to impeach Defendant's character for truthfulness; and 4) that the State made improper remarks during its closing argument. After careful review of the record and applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed.
Mike Whalen, Knoxville, Tennessee, for the appellant, Vickie Lynn Perry.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Randall E. Nichols, District Attorney General; and Kevin James Allen, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
I. Facts and Procedural Background
This is Defendant's direct appeal for her jury trial conviction of felony first degree murder, and resulting life sentence, from the Knox County Criminal Court. On April 6, 2010, the Knox County Grand Jury indicted Defendant of two counts of first degree felony murder and one count of robbery. The trial court arraigned Defendant and appointed counsel to provide representation. After several continuances because of Defendant's health, the trial court held a four-day jury trial that began on October 1, 2013.
Roe Tolliver, the victim, lived in South Knoxville on a "family farm" of nearly eight acres. He was seventy-seven years old. His wife stayed in a nursing home so he lived alone until he met Defendant. After developing a friendship, they agreed to a living arrangement. Mr. Tolliver allowed Defendant to move into his house in exchange for cooking and cleaning. On occasion, Mr. Tolliver helped support Defendant financially.
Mr. Tolliver's fifty-year-old nephew, Larry Graham, lived in a house approximately three hundred feet away from Mr. Tolliver's residence. There is an unobstructed view between the two houses such that Mr. Graham could see vehicles coming and going from Mr. Tolliver's house. Mr. Tolliver owned three trucks: a 1998 red and silver Dodge Ram, a 2008 red Dodge, and an inoperable Dodge in his driveway.
When Mr. Tolliver returned home from work on Tuesday, January 26, 2010, Mr. Graham went to Mr. Tolliver's house to cut some trees for Mr. Tolliver. Mr. Tolliver was sitting on the front porch, and Defendant was inside the house. Mr. Tolliver told Mr. Graham to cut the trees another time because it was getting dark. Mr. Graham went home to retrieve some cigarettes and to stow his saw, and he then returned to Mr. Tolliver's house after five or ten minutes.
When Mr. Graham returned, the door to Mr. Tolliver's house was locked, which was unusual. Mr. Graham and Mr. Tolliver spent much time together and were so comfortable with each other that they had "an open-door policy" with each other's homes. Mr. Tolliver rang the doorbell, and Defendant opened the door. She told Mr. Graham that Mr. Tolliver was taking a shower and was tired. Mr. Graham agreed to visit Mr. Tolliver the next day instead. Defendant then mentioned that she and Mr. Tolliver were contemplating a "little vacation" to Myrtle Beach because he had been working "quite a bit." She said that they would tell Mr. Graham if they decided to leave. That was the last day that Mr. Graham saw Mr. Tolliver alive. Mr. Graham had no further communication or interaction with Mr. Tolliver after January 26th.
Kenneth Thornton testified that he owned several residential rental properties. He knew Mr. Tolliver for fifteen to twenty years before he died. Mr. Thornton regularly hired Mr. Tolliver to do maintenance work on his rental properties. Mr. Tolliver was an "extremely good" worker who was "always reliable." During the last week of January 2010, Mr. Tolliver was doing a job for Mr. Thornton. Mr. Tolliver worked Monday, January 25th, through Wednesday, January 27th. As he left work on Wednesday, around 3:30 p.m., Mr. Tolliver said, "See you tomorrow, " to Mr. Thornton. A week or two of work remained to be completed, and Mr. Tolliver did not make any indication that he would not finish the job. Mr. Tolliver also did not mention taking a vacation.
Joey Lundy testified that he was Mr. Tolliver's neighbor and childhood friend. Mr. Lundy was helping Mr. Tolliver with the job for Mr. Thornton. Mr. Tolliver would drive Mr. Lundy to and from work in his 1998 Dodge Ram truck. On Wednesday, January 27th, Mr. Tolliver took Mr. Lundy home. Mr. Lundy expected them to return to work the next day, although Mr. Tolliver complained that his back hurt. Mr. Tolliver did not mention taking a vacation.
On Thursday, January 28th, between 6:30 a.m. and 7:00 a.m., a woman called Mr. Thornton and told him that Mr. Tolliver was sick and would not make it to work. This was unusual because Mr. Tolliver would call Mr. Thornton personally if he was unable to work. The same woman called back later during the day and asked for Mr. Tolliver's compensation for the three days he worked that week. This was also unusual because Mr. Thornton normally paid Mr. Tolliver at the end of the week. Mr. Tolliver never asked for an advance payment. However, Mr. Thornton put cash in an envelope with Mr. Tolliver's name on it, and Mr. Lundy picked it up on Thursday afternoon. Mr. Thornton did not know Defendant.
On Thursday morning, Defendant called Mr. Lundy and told him that Mr. Tolliver was sick. She asked Mr. Lundy to pick up Mr. Tolliver's pay from Mr. Thornton. That was the first time that Defendant called Mr. Lundy. Mr. Lundy picked up the money from Mr. Thornton and drove to Mr. Tolliver's house. Defendant answered the door and said that Mr. Tolliver was asleep. Mr. Lundy gave Mr. Tolliver's money to Defendant and then left. He never saw Mr. Tolliver again.
A few days later, Mr. Graham noticed that the 2008 Dodge truck was not at Mr. Tolliver's house. He assumed that Mr. Tolliver and Defendant went on vacation without notifying him. Mr. Tolliver did not leave his home often and when he did so it was not for more than a few days.
When there was no contact from Mr. Tolliver by Saturday, Mr. Graham called Mr. Tolliver's phone. There was no answer. Mr. Graham tried again for several days, but Mr. Tolliver did not answer his phone or return a call to Mr. Graham. On Tuesday or Wednesday of the following week, Mr. Graham became concerned and called Defendant's phone. She also did not answer and did not return his call.
On the following Saturday, February 6, 2010, after lunchtime, Mr. Graham went to investigate. The doors of Mr. Tolliver's house were locked, so Mr. Graham used a ladder to climb through an unlocked window of the master bedroom. Inside, there was a "big fifth tequila bottle top busted" on the floor. The door to the hallway and the door to the adjoining bathroom were closed. The bathroom exhaust fan was running. Mr. Graham turned the handle of the bathroom door, which was not locked, but the door would not open. Mr. Graham thought someone may have been inside the bathroom, so he stepped away from the door and called out. No one answered. After a few minutes, Mr. Graham pushed firmly on the bathroom door, and it began to open. Mr. Graham saw that his uncle's body was lying on the floor with his legs against the door. Mr. Tolliver appeared to have been dead "for a long time" because his body was "black all over." There seemed to be wounds on his body.
Mr. Graham proceeded to check all of the rooms and closets inside the house to ensure that no one else was inside. He left the house and immediately called Kevin Tolliver, his cousin and Mr. Tolliver's youngest son. He then called 911, and law enforcement arrived quickly.
Around 7:30 p.m., on February 6th, Mr. Graham received a phone call from Defendant. During the brief conversation, she said, "I was just calling to see [if] anybody [has] been looking for me or anything like that." When Mr. Graham asked why someone would be looking for her, Defendant replied, "I had just heard that the law was looking for me. Have you seen them over at Roe's or anything?" Mr. Graham denied that the police were at Mr. Tolliver's house because he did not want "to spook her." Defendant said that she would "probably" call back later. Mr. Graham notified the police that Defendant had just called him.
Twenty or thirty minutes later, Defendant called Mr. Graham again. He answered the call, and Defendant said, "I just called to see if you'd heard anything else." Mr. Graham said he had not. He then asked Defendant, "Y'all all right? Y'all doing okay?" Defendant answered affirmatively. Mr. Graham asked if Defendant and Mr. Tolliver went to the beach. She said that they had but were presently "up at her sister's in Indiana" and would return home "in the next couple of days." Mr. Graham told her that he would call her if he noticed anything "going on."
After learning of Mr. Tolliver's death, Kevin gathered his siblings at Mr. Graham's house. Kevin overheard Mr. Graham on the phone with Defendant and heard Defendant tell Mr. Graham that she and Mr. Tolliver were vacationing in Indiana.
Detective Randall Crisp of the Major Crimes Unit of the Knox County Sheriff's Department testified that he was the lead detective dispatched to Mr. Tolliver's home on the afternoon of February 6, 2010. As he entered the front door of the house, he could smell the decomposition of Mr. Tolliver's body. He immediately declared Defendant a missing person because he did not know whether she was involved. Detective Crisp began tracking the location of Defendant's cellphone with assistance from her cellular service carrier. Defendant's phone was determined to be in Straw Plains. There was no cellphone date supporting Defendant's location in Indiana as she reported to Mr. Graham.
Detective Crisp learned that Defendant may have been with Jimmy Dunn, who frequented a particular gas station in Straw Plains. On February 7, 2010, Detective Crisp and a team went to the gas station and began surveillance. After approximately an hour, Mr. Dunn and Defendant arrived. The officers transported Mr. Dunn and Defendant to a law enforcement facility for questioning. Defendant signed a Waiver of Rights form, and Detective Crisp and Detective Brad Hall interviewed her.
Defendant said that she lived on Deadrick Road with Mr. Tolliver, for whom she was a caretaker. She explained that she had gotten into a fight with Mr. Tolliver, which happened often. The fight began because Mr. Tolliver wanted to go to Walgreens to get Viagra pills so that he could have sex with Defendant. Defendant refused because she did not want to have sex with him anymore. Mr. Tolliver told Defendant that she would have to move out of his house if she did not agree, and he threatened that he would not allow her to take her belongings with her.
Eventually, the argument became physical as the couple moved between the kitchen and their bedrooms upstairs. Mr. Tolliver became angry and began pulling Defendant's hair. Initially, Defendant denied hitting Mr. Tolliver with a glass bottle, but eventually she admitted that, at one point, while Mr. Tolliver sat on his bed in the master bedroom, Defendant hit him in the back of the head with a tequila bottle. The blow did not render Mr. Tolliver unconscious, and he approached Defendant. Mr. Tolliver produced a knife with a yellow handle from a black sheath and stabbed Defendant's forearm. Defendant disarmed the knife from Mr. Tolliver and then stabbed him repeatedly with it because she thought he was going to kill her. Mr. Tolliver fell down on the floor near his bed, and then he went into the bathroom, shut the door, and began running water.
Defendant left the master bedroom and returned to her bedroom. She took a bath and washed her clothes. She called an acquaintance and told him what happened. At some point, she took some pills and went to sleep. When she awoke the next morning, Defendant found Mr. Tolliver naked and on the floor. She did not know what to do, but she did not attempt to rouse Mr. Tolliver or call for medical assistance.
Defendant gathered her clothes and purse and then gathered various items from Mr. Tolliver's home, which she believed were valuable enough to sell. Defendant remembered taking a black rifle, a weed eater, Mr. Tolliver's wallet containing $15, a vacuum, a hunting light, a pair of tennis shoes, and a leaf blower. She left with Mr. Tolliver's 2008 Dodge truck and went to Mr. Dunn's trailer. Defendant did not tell Mr. Dunn what happened with Mr. Tolliver. Defendant told the investigators that she left the yellow-handled knife in Mr. Dunn's bedroom underneath a pillow on the bed.
Because the title to the 2008 Dodge truck was inside the vehicle and already signed, Mr. Dunn sold the truck to an individual named "Jay" for cash and a "camper." Mr. Dunn gave Defendant $5, 000 from the transaction, which she instructed Mr. Dunn to use to buy cocaine. Mr. Dunn eventually sold most of Mr. Tolliver's belongings. Defendant stayed high with Mr. Dunn for the next few days before they were apprehended by the police. Defendant also said that, the night before the incident, she smoked crack in Mr. Tolliver's house with a man named Fred Davis while Mr. Tolliver slept.
Defendant's only injury was to the underside of her right forearm. The wound appeared to be a few days old at the time of the interview.
The 2008 Dodge truck was located off of Electric Avenue in West Knoxville with a broken taillight and without a license plate. Mr. Graham did not notice any damage to the 2008 Dodge before January 26th. According to Mr. Graham, Defendant did not drive Mr. Tolliver's trucks. ...