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State v. Hollingsworth

Court of Criminal Appeals of Tennessee, Knoxville

January 11, 2017

STATE OF TENNESSEE
v.
ADOLPHUS L. HOLLINGSWORTH

          Session July 26, 2016

         Appeal from the Criminal Court for Hamilton County No. 290430 Rebecca J. Stern, Judge.

         The Defendant, Adolphus L. Hollingsworth, was convicted by a Hamilton County jury of second degree murder and was sentenced to twenty-two years' incarceration. On appeal, the Defendant argues: (1) the trial court erred in allowing the State to amend the indictment; (2) the trial court erred in denying his motion to dismiss based on the State's failure to preserve evidence; (3) the trial court erred in denying his motion to suppress the evidence discovered during the search of his property; (4) the trial court abused its discretion in denying his motion to exclude evidence from forensic testing; (5) the trial court erred in admitting Rule 404(b) testimony; (6) the evidence is insufficient to sustain his conviction; (7) the trial court erred in failing to provide a female bailiff to supervise the sequestered jury; and (8) the trial court erred in denying his motion for judgment of acquittal or, in the alternative, motion for new trial.[1] The judgment of the trial court is affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          William M. Speek and Jonathan T. Turner, Chattanooga, Tennessee (on appeal); Steven E. Smith, District Public Defender; Steven D. Brown and Manzura Talipova, Assistant Public Defenders (at trial) for the Defendant-Appellant, Adolphus L. Hollingsworth.

          Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; M. Neal Pinkston, District Attorney General; and Lance W. Pope, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert H. Montgomery, Jr., J., joined.

          OPINION

          CAMILLE R. MCMULLEN, JUDGE

         On August 18, 1997, the twenty-eight-year-old victim, Victoria Witherspoon Carr Hollingsworth, disappeared from her parents' home in Chattanooga, Tennessee. On June 5, 1999, her body was discovered. No suspects were indicted in the initial investigation of the victim's murder. Seventeen years after the victim's disappearance, in January 2014, the production company for the television show "Cold Justice" contracted with the City of Chattanooga to shoot an episode on the victim's case. Based on the investigation that followed, the Hamilton County Grand Jury indicted the Defendant on one count of first degree premeditated murder on January 22, 2014.

         Trial.

         Wesley Carr, the victim's son, testified that he was nine years old when the victim disappeared. He said that he, his sister, and the victim lived with the Defendant for approximately six years, and at some point during that period the victim married the Defendant, although they were separated at the time of the victim's disappearance. Carr recalled an incident in which the Defendant acted violently toward the victim. He said that just prior to the victim's separation from the Defendant, he was awakened by screaming. When Carr entered the bathroom, he saw the Defendant pouring gasoline on the victim's face. This argument "escalated, " and he saw the Defendant throw a set of keys in the victim's face. After this argument, the victim moved herself and her children into her parents' home at 1315 Duncan Avenue.

         The night before the victim's disappearance, the victim asked Carr to help with some work she was doing for her new job at the Chattanooga Housing Authority. The next morning, Carr awoke at 8:00 a.m., and although the victim was supposed to take him and his sister to day care, the victim was not at home. Although the victim's parents normally cared for Carr and his sister, they were out of town that day. Carr tried to call the victim, but the call went to voice mail. Carr and his sister searched their home for the victim to no avail but discovered that the victim's car, a Ford Mustang, was parked in the driveway. Carr opened the door to the Mustang and noticed "a very foul smell." Carr went back inside the house and called his grandparents, who told him to call his father and his aunt.

         Since the victim's disappearance in August 1997, the Defendant never talked to Carr about this case. When the victim's body was discovered in 1999, Carr was living with his father and spending time with his grandparents. Carr did not talk to police about the circumstances surrounding the victim's disappearance until 2010.

         Kenneth Witherspoon, the victim's brother, testified that on the morning of August 18, 1997, he telephoned the victim, but she did not answer. Between 8:30 and 9:00 a.m. that morning, he went to his parent's home at 1315 Duncan Avenue to check on the victim. Upon arriving there, he saw the victim's Mustang parked in the driveway, so he tried to call the victim again and began knocking on all the doors to the home, which were locked. At that point, he knew something was wrong. He began looking at the Mustang and noticed that it had "a piece of brush on the back[.]" His parents, who had lived at the Duncan Avenue address for thirty years, did not have that type of shrub in their yard. Witherspoon returned home and called his parents.

         When he got home, Witherspoon saw the Defendant across the street at Tommy Vaughn's house. He knew that the Defendant and Vaughn were friends and that Vaughn often acted like a "[g]opher" for the Defendant. When Witherspoon asked the Defendant where the victim was, the Defendant had a "little grin" on his face that suggested that something had happened to her. At the same time, Vaughn refused to look at Witherspoon. The Defendant told Witherspoon that he did not know where the victim was and that he had "been looking for her" himself. Witherspoon called his parents again, who informed him that they were on their way back from Memphis.

         Witherspoon knew that the victim often gave the Defendant a ride to work. While the Defendant was still at Vaughn's house, Witherspoon went to the Defendant's house and walked around the front and back yards. He thought the Defendant might have "tied up [the victim] or something, because he was a real bad man." When he got to the Defendant's backyard, he noticed "skid marks" near a bush that looked that it had been run over. When Witherspoon returned to his home, he saw the Defendant sitting in an orange, 1970's truck parked near Vaughn's home that the Defendant had purchased that morning.

         After looking around the Defendant's home and calling the police, Witherspoon returned to his parents' home. He opened the door to the victim's Mustang and observed "one of the awfulest [sic] smells." Although he first thought the smell was kerosene, he soon realized that it smelled like a substance used to "clean your car . . . when you [are] trying to cover up something."

         Over the next couple of days, Witherspoon drove past the Defendant's house because he thought the victim might be there. Each time, he saw the Defendant's orange truck parked in the driveway. Witherspoon said that other than briefly talking to the Defendant the morning of the victim's disappearance, the Defendant never contacted him or his parents about the victim or her children.

         Captain Corliss Cooper, who was working in the missing persons unit of the Chattanooga Police Department in 1997, testified that several individuals filed a missing person report regarding the victim. Kenneth Witherspoon filed such a report at 1:55 p.m. on August 18, 1997. The victim's mother filed a missing person report the same day at 3:32 p.m.. On August 19, 1997, the Defendant filed a missing person report at 10:06 a.m.

         Captain Cooper and Inspector Kenneth McCrary went to the residence at 1315 Duncan Avenue and talked to the victim's mother and brother. Captain Cooper observed the victim's Mustang parked in the driveway, and when he opened the door to this car, he smelled gasoline. As he and Inspector McCrary were observing the car, they noticed some "brush under the vehicle, " so they notified Lieutenant Dianna Williams, who contacted the major crimes division about the case. Captain Cooper remained at the residence until the victim's car was photographed, examined, and towed to the police department.

         Captain Cooper said Witherspoon told him that he had seen the Defendant driving a black Pontiac on August 18, 1997, the day the victim disappeared. The victim's mother, in her missing person report, referred to several instances of domestic abuse by the Defendant against the victim. She also said that the Defendant claimed not to have seen the victim on August 18, 1997.

         Inspector Kenneth McCrary testified that following the victim's disappearance, the victim's family stayed in contact with him and often asked if there was any new information in the victim's case. He did not recall, and his notes did not show, that the Defendant ever contacted him about the victim. However, he acknowledged that the Defendant was immediately identified as a suspect and fingerprinted shortly after the victim's disappearance. During the investigation, Inspector McCrary learned that Orville Hughes might have been dating the victim at the time of her disappearance. He acknowledged that Hughes also never contacted him to discuss the victim's disappearance.

         Erica Collins, a friend of the Defendant's, testified that on August 18, 1997, the Defendant called her around 6:00 a.m. to ask for a ride to work because the victim had not arrived to pick him up. Collins was upset that the Defendant had called her because her daughter was still asleep but told him that she would pick him up if she had time before work. Collins did not give the Defendant a ride and did not call him. At around 9:00 a.m. that morning, the Defendant and Tommy Vaughn came to Collins's work, and the Defendant asked to borrow her car to "take care of some business." Collins allowed the Defendant to take her car, a black two-door car, but told him he had to bring it back by 11:00 a.m., which he did. At 11:00 a.m., Collins took the Defendant and Vaughn to a used car dealership on Shallowford Road so the Defendant could purchase a car, but the dealership was closed.

         Adolphus Mitchell testified that he had known the victim for twenty years and had worked with the Defendant at Jay Hall Security, where they were bouncers for several nightclubs. He was aware that the Defendant and the victim dated and eventually got married but that at the time of the victim's disappearance, they were separated. Mitchell said that the last time he saw the victim, which was a week or so prior to her disappearance, she and the Defendant were at a flea market arguing "[a]ggressively" about a tattoo the victim had just gotten. Mitchell saw the Defendant grab the victim by the arm, so he "intervened and pulled her away from him." After keeping the Defendant and the victim separated for a few minutes, Mitchell left.

         Sergeant Brian Bergenback, who worked in the crime scene unit in August 1997, testified that he went to 1315 Duncan Avenue to collect evidence and take photographs related to the victim's disappearance. When he arrived, he noticed "a piece of brush sticking out in the rear [of the victim's Ford Mustang] that . . . looked like maybe it had run over a bush or something." He photographed the brush wedged in the car's bumper and collected portions of this brush as evidence. He also took photographs of the Mustang and processed the car for fingerprints, although none were of a suitable quality for comparison testing. He noticed a strong odor of gasoline coming from the Mustang's interior. The following day, Sergeant Bergenback took samples of the fabric from the interior of the Mustang, which had been towed to the police department, to determine whether there was gasoline present. He also collected a hammer he found in the back seat of the car. Sergeant Bergenback said that although there would be some amount of blood evidence if a person's throat had been slashed, he did not observe any substances appearing to be blood inside the Mustang.

         Sergeant Craig Johnson, who worked in the identification unit in August 1997, testified that although he had no personal recollection of his investigation of the victim's case, his notes helped him recall some of his duties. On August 18, 1997, he photographed and fingerprinted the Defendant at the police department. In the early morning hours of August 20, 1997, he went to the Defendant's address with a search warrant to make a crime scene video and to take photographs. He photographed the tire tracks in the Defendant's backyard because officers were attempting to document the length and width of the tracks with a photographic tape measure. He also photographed some trash bags inside the Defendant's house and took photographs of the bathroom, bedroom, and kitchen. In addition, he photographed the brush lodged between the bumper and tailpipe of the victim's Mustang and collected this brush as evidence. He also photographed and processed the Ford Mustang car. Sergeant Johnson said there was no visible blood found inside the Defendant's home. However, he said the police in 1997 did not have alternative light source technology, which is capable of detecting bodily fluids including blood that is not visible. He said his notes did not show that he measured the wheel base of the victim's Ford Mustang.

         Janice Pruett, the victim's supervisor at the Chattanooga Housing Authority, testified that the victim had worked for her for approximately a month prior to her disappearance. Pruett knew the Defendant and his family. She was also aware that the Defendant and the victim were married but separated because the victim and her children were living with the victim's parents. Pruett said the victim was not dating anyone other than the Defendant at the time of her disappearance.

         On the Friday before the victim's disappearance, the victim arrived at work and later went to lunch with the Defendant. The victim did not seem excited about the lunch and told Pruett that she intended to stop seeing the Defendant. When the victim returned, she had eleven red roses and a note that stated, "I would like to make love to you all weekend long." That afternoon, the victim took work orders home to put them in numerical order so they could be filed on Monday. That Monday, the victim did not come to work, which was very unusual. Because Pruett was worried, she called the victim's home. She spoke to Wesley Carr, the victim's son, and later spoke to the victim's mother and Kenneth Witherspoon, who were all looking for the victim.

         Pruett said the Defendant called her work that Monday morning and asked to speak to the victim, which was strange because the Defendant never called for the victim at that time of day. Pruett told the Defendant that the victim was not at work and asked the Defendant if he knew where the victim could be.

         On August 18, 1997, Pruett went to the victim's parents' home to try to determine the victim's whereabouts. She found the work orders inside the victim's car, which had been "doused with gasoline." Pruett also noticed that "[t]here was rubber hanging from the rear tires."

         Gene Van Horn, a botanist accepted as an expert in plant identification, testified that the police approached him about identifying a plant in this case. After glancing at the plant they provided, he determined that it was Viburnum, which is found in gardens and is not found growing wild in Tennessee. He said the plant had "an unusual gland on the petiole or leaf stock" and "two streaks at the base of the leaf stock called stipules, " which limited it to one species of Viburnum. At that point, the police then took a sample of a plant out of an envelope, and Van Horn opined that it looked exactly like the plant he had just identified. He said the "stem size was the same" and "[e]verything was the same[, ]" including the "unusual gland on the leaf stock." Van Horn later sent a letter to Sergeant Phillips opining that the plant and the sample he was shown were from the same species of Viburnum.

         Thomas Bodkin, who worked for the Medical Examiner's Office, was accepted as an expert in the field of forensic anthropology, He testified that in May 1999 he examined a cranium brought to him by the police and was able to provide them with an age, sex, and race estimation of the deceased individual. On June 5, 1999, he was part of a team that searched Billy Goat Hill, a "steeply sloped, heavily wooded and vegetated" area. Bodkin stated that a member of the team discovered the remains of a body on Billy Goat Hill approximately 900 feet from where the cranium had been found at the end of Taylor Street. When the team member announced that he had found something, Bodkin observed four tires placed in a linear orientation. Although there was a lot of trash in the area, including several tires, Bodkin said these tires "were different" because "they were together" as opposed to "the other random tires that were thrown down into the woods." Upon closer examination, he saw a human rib sticking out from underneath one of these tires.

         Once the tires were removed, Bodkin found black plastic, some green material, and the skeletal remains of a body. Photographs were taken of the scapula, ribs, and the entire pelvic girdle, which were still connected. These bones were in the position of someone lying on his or her back. Along with these bones were hair extensions that were black and gold. Bodkin noted that the skeleton had "very little soft tissue" holding it together and that the ligaments were "[v]ery tough." The mandible, or jaw bone, with the body matched the cranium found at Taylor Street. In addition, four of the teeth recovered from the Billy Goat Hill location fit into the cranium found at Taylor Street. Bodkin was able to determine that these remains belonged to an African-American woman in her late twenties. After examining the victim's dental x-rays, Bodkin confirmed that the remains belonged to the victim.

         Bodkin said that the victim's cause of death was determined to be an incisional wound to the neck. He said that the victim had a "defect to the back of the mandible on that left side" that looked like "sharp force injury." While he acknowledged that an incisional wound to the neck could create a large amount of blood, Bodkin said that the amount of blood would depend on what part of the neck was hit.

         Sandra Sanchez testified that she dated and lived with the Defendant prior to 1997. She said that on one occasion, the Defendant took her to Billy Goat Hill.

         Dr. James Metcalfe, the Hamilton County Chief Medical Examiner, reviewed the victim's autopsy report. He said the victim's manner of death was homicide, and her cause of death was an incisional wound to the neck. The victim sustained a stab wound that went from the back of the neck to the front, which would have cut a major artery and would have caused the victim to bleed to death.

         Sergeant Justin Kilgore testified that when he was examining cold cases in 2010, he reviewed the victim's murder. After reviewing this file, he concluded that he needed to talk to Tommy Vaughn, who had been originally interviewed by police on August 19, 1997, and he interviewed Vaughn again in 2010. Sergeant Kilgore also determined that he needed to talk to the victim's adult children, Wesley Carr and Kajora Beasley, because they had never been interviewed. When Sergeant Kilgore talked to Wesley Carr, the victim's son, in 2010 he learned about the gasoline incident involving the Defendant and the victim that Carr had witnessed. He also spoke to the Defendant in 2010 Sergeant Kilgore considered the victim's case again in fall 2013 when individuals from the television show "Cold Justice" contacted him about doing a special on the victim's case. He then interviewed Adolphus Mitchell, Orville Hughes, and Sandra Sanchez in 2014. He also decided to test some of the carpet samples taken from the victim's car because they had "some sort of stain on them." Because they did not have a sample of the victim's blood, the police used a buccal swab from the victim's daughter for testing, which was sent to Sorenson Forensics, a private laboratory. Sergeant Kilgore acknowledged that the television production company paid for this testing and that the police department could have obtained the buccal swab from the victim's daughter at any time and sent it to the Tennessee Bureau of Investigation (TBI) for testing.

         Orville Hughes testified that he had known the victim since they were children. Prior to her death, the victim lived with her parents on Duncan Avenue, which was "around the corner" from him. Approximately two weeks before the victim disappeared, Hughes, the victim, the victim's parents, and the victim's brother were all on the front porch of the victim's parents' home when the Defendant drove up to the house at an "excessive speed, " screamed at the victim, and told her "what he was going to do to her." The Defendant, who was yelling and cursing, said he "was going to kill [the victim], he was going to hurt her family." The Defendant then drove down Duncan Avenue, did a U-turn, and drove back up the street and began "saying the same thing[, that] he's going to kill her, he's going to do this to her." The Defendant then informed the victim that she would not be "coming back home." At the time, the Defendant's ill mother, who was in the car with him, was trying to reason with him, but he would not listen. The Defendant drove up and down the street six or seven times and continued to scream at the victim. Hughes said he "couldn't believe what [he] was seeing." A couple of weeks after this incident, Hughes found out that the victim had disappeared.

         TBI Agent Laura Hodge was accepted as an expert in the field of microanalysis. After receiving samples of the carpet and the seats from the victim's car, she determined that all of these samples contained gasoline and some of them contained kerosene.

         Sergeant Bill Phillips testified that he was assigned to this case at 4:00 p.m. on August 19, 1997, the day after the victim was reported missing. He said forensic evidence was collected, even though the case was originally classified as a missing person case, because there was evidence indicating foul play.

         Sergeant Phillips helped execute the search warrant of the Defendant's home shortly after midnight on August 20, 1997. At the time, officers were looking for the victim or her body as well as for gasoline containers and "[o]bvious weapons." The officers found no gas containers or blood at the Defendant's home but learned that the Defendant had purchased a truck the day the victim disappeared. During his investigation, Sergeant Phillips discovered that the victim had often given the Defendant a ride to work at 5:00 a.m., despite the fact that they were separated. He also noticed tire tracks in the Defendant's backyard leading to a bush at the back of the Defendant's home. He said it was clear the car leaving the tracks "had traveled back through this yard and into the bush" because the bush appeared "damaged." He also knew there was some brush lodged in the bumper of the victim's car. Sergeant Phillips measured the tire tracks and concluded that they matched the wheel base of the victim's car. When Dr. Van Horn concluded that the brush samples from the shrub and the car were from the same species of plant, this information confirmed his belief that the victim's car had recently been in the defendant's backyard]. Sergeant Phillips stated that the victim's skull was found on Taylor Street, which was approximately 200 feet below Billy Goat Hill. He described Billy Goat Hill as "almost a one lane very secluded travel type area." While he acknowledged that some crime scenes contain a substantial amount of blood, he asserted that other crime scenes will not contain much blood. He explained that "[t]he blood doesn't always come outside the body."

         After reviewing this case several times over the years, Sergeant Phillips believed that the television show "Cold Justice" could provide the necessary resources to solve the victim's case. Some of the evidence in this case was retested after the television show became involved because the technology had improved since the original testing.

         Although Sergeant Phillips admitted that he could have submitted samples from the interior of the victim's car to the TBI as DNA technology improved, he believed that the sample that tested positive for blood would show that it was the victim's blood, which would not have helped the police find the victim's killer. He acknowledged that on January 12, 2014, the television production company arrived in Chattanooga and then on January 22, 2014, the case was presented for the first time to the grand jury, which resulted in the Defendant being indicted on this seventeen-year-old case. He noted that a set of keys was found close to the victim's car, but the key to the victim's Ford Mustang was not on this key chain.

         The parties stipulated that there was no evidence that the remains of the victim's body had been burned.

         Dr. Sharon Horton-Jenkins, an agent with the TBI, was accepted as an expert in the fields of DNA and serology. When the samples from the victim's car were submitted to the TBI on June 8, 1999, she conducted the testing and produced a laboratory report in this case on July 27, 1999. She determined that the sample from the left front seat of the victim's car contained blood. In addition, the sample taken from the right front floor of the victim's car was inconclusive as to whether it contained blood. No blood was found on the other samples. Agent Horton-Jenkins stated that during the period from 1999 to 2008, the TBI was not able to do testing comparing the samples from the victim's car against a buccal swab taken from the victim's child to determine whether the samples contained the victim's blood.

         Emily Jeske, an employee of the Sorenson Forensics, was accepted as an expert in the field of DNA comparison. She testified that Sorenson Forensics, an accredited private laboratory, conducted testing for the television show "Cold Justice" and that she tested the samples in the victim's case. After testing a sample from the right front floor section of the victim's car and a buccal swab from the victim's daughter, she concluded that the blood from the floor sample belonged to the victim. Jeske asserted that the television show "Cold Justice" never told Sorenson Forensics about the results that it desired. She asserted that her results were based on her testing and were not dictated by the television show.

         Dr. Jennifer Love, who was accepted as an expert in the field of forensic anthropology, conducted a "cut mark analysis" on the victim's jaw bone. She determined that the victim had sustained a cut mark on the jaw around the time of her death that was made with a tool like a knife. The entry wound was below the victim's chin and went in an upward motion. Dr. Love said there was "one continuous passing of the weapon through the bone, " and there were no indications of a sawing motion.

         ANALYSIS

         I. Motion to Amend the Defendant's Indictment.

         The Defendant contends that the trial court erred in allowing the State to amend his indictment to incorporate new tolling language alleging concealment. He maintains that the amendment amounted to a new and different charge, which required action of the grand jury. He also claims he suffered prejudice because had the trial court not allowed the amendment of the indictment, any attempt by the State to obtain a superseding indictment from a grand jury would have been time-barred by the fifteen-year statute of limitations for second degree murder. Because the amendment did not amount to a new or different charge and because the State would not have been precluded from obtaining a superseding indictment, the Defendant is not entitled to relief.

         Here, the original indictment, which was filed on January 22, 2014, provided:

That [the Defendant], heretofore on or before August 18, 1997, in the County aforesaid, did unlawfully, intentionally and with premeditation kill Victoria Hollingsworth, further, the [D]efendant was not usually and publically resident within the state but residing in Alabama from 2004 until 2010 and then in the State of Texas from 2010 to present, in violation of Tennessee Code Annotated 39-13-202, against the peace and dignity of the State.

         On October 27, 2014, the State filed a motion to amend the Defendant's indictment pursuant to Tennessee Rule of Criminal Procedure 7(b)(2) and Tennessee Code Annotated section 40-2-103. At the hearing the same day, the State requested that the tolling language regarding the time period the Defendant was outside the State be stricken and replaced with tolling language alleging that the Defendant concealed the offense for a period of time in accordance with Code section 40-2-103. The State noted that the tolling language was significant because it affected the statute of limitations period for the lesser included offense of second degree murder. It also said that while it could show tolling based on the Defendant living in different states, tolling based on the Defendant's concealment of the offense was more appropriate for this case because the victim's body was not discovered until long after she had disappeared. Specifically, the State asked that the old tolling language be amended to show that "the defendant concealed the fact of the crime in that the victim went missing on August 18, 1997 and was not discovered until late May 1999." At the hearing on this motion, the following discussion took place:

THE COURT: Well, this was way beyond clerical error. Unless they agree to it you're going to have to go back to the grand jury I'm afraid.
[PROSECUTOR]: Well, except that he doesn't have to consent and jeopardy is not attached and the Rule 7(b)[(2)] allows that to occur, ...

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