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State v. Hill

Court of Criminal Appeals of Tennessee, Knoxville

February 9, 2017

STATE OF TENNESSEE
v.
BILLY HILL

          Session July 26, 2016

         Appeal from the Criminal Court for Knox County No. 101915 Steven W. Sword, Judge

         The Defendant, Billy Hill, was convicted by a Knox County Criminal Court jury of second degree murder, a Class X felony, for the 1986 killing of his mother. See T.C.A. § 39-2-211 (1986) (repealed 1989). The trial court sentenced the Defendant to twenty-four years' confinement. On appeal, the Defendant contends that (1) the trial court erred by denying his motions to dismiss based upon lost and destroyed evidence, a due process violation created by the extensive pre-indictment delay, and a violation of his right to a speedy trial, (2) the trial court erred by allowing improper witness testimony, (3) the trial court erred by denying his motion for a mistrial after a witness violated a court order prohibiting testimony about the Defendant's alleged violent conduct against the witness, (4) the trial court erred by refusing to provide a jury instruction relative to the State's obligation to corroborate his statements, and (5) the prosecutor engaged in misconduct during closing argument. We have also considered whether the statute of limitations for second degree murder had expired before the commencement of the prosecution. Although we affirm the Defendant's conviction, we remand for the entry of a corrected judgment reflecting the proper felony classification for second degree murder at the time of the offense.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed; Remanded for Entry of a Corrected Judgment

          Mike Whalen (on appeal and at trial), Knoxville, Tennessee; Mark Stephens, District Public Defender; and Julia Gautreau and Christy Murray (pretrial), Assistant District Public Defenders, for the appellant, Billy Hill.

          Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Charme P. Allen, District Attorney General; Steve Garrett and Phillip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.

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

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         At the trial, Wanda Brown testified that she and Bobbie Hill, who was the victim and the Defendant's mother, had been friends since the 1960s. Ms. Brown and the victim went to a fair on Friday, September 12, 1986, around 6:00 p.m. and returned to Ms. Brown's home around 10:30 p.m. The victim lived about six miles from Ms. Brown's home, and Ms. Brown assumed the victim drove home when she left that night. The victim appeared to be in a good mood that night. Ms. Brown said she was unaware the victim was romantically involved with David Nave at the time of her death but clarified after reviewing her statement to the police that although she knew the victim was dating someone, she did not know the man's name. Ms. Brown recalled telling the police that although the victim was thinking about ending the relationship, the man had bought concert tickets for the victim.

         Ernest Wilson, Jr., testified that he knew the Defendant around the time of the victim's death and that the Defendant frequented an arcade at which Mr. Wilson worked in the 1980s. He said the Defendant drove a black Camaro at the time and was friends with Todd Haskins.[1] Mr. Wilson recalled that on September 12, he drove a school bus for a high school football team, that he went to the arcade after he dropped off the students, and that the Defendant, Mr. Haskins, and "the Irvin boys" were there. The Defendant, Mr. Haskins, and the Irvin boys left around 9:00 p.m. Mr. Wilson said Knoxville Police Officers Mike Parker, Vic Voyles, J.D. White, and Tommy Stiles also frequented the arcade, which was near the victim's home. Mr. Wilson left the arcade between 12:30 and 1:30 a.m., drove past the victim's home, and saw three cars parked in the driveway of the victim's home. Mr. Wilson saw the victim's car, the Defendant's car, and another black car in the driveway. Mr. Wilson knew the Defendant's black car and noted the Defendant always backed into the victim's driveway and parked in the same place. After reviewing his 1986 police statement, Mr. Wilson recalled telling the police that the Defendant drove a 300ZX, but he remained adamant he saw the Defendant's black car parked in the driveway. After reviewing his 2011 police statement, Mr. Wilson agreed he told Knoxville Police Investigator Day that he saw three cars in the driveway, that he saw the Defendant's black car, that another car was gray, and that he did not know who owned the other two cars. Mr. Wilson had never seen those two cars in the neighborhood and agreed he told Investigator Day that the Defendant drove a Camaro IROC or IROC Z. Mr. Wilson was adamant he saw the Defendant's car at the victim's home regardless of the make and model.

         Retired Knoxville Police Officer Larry Gilland testified that he responded to the victim's home on September 14, 1986, and that the Defendant reported finding the victim. The Defendant reported to Officer Gilland that the victim had been stabbed multiple times. Although the Defendant was inside the home when Officer Gilland arrived, two men were outside the home and did not know why Officer Gilland was there. Officer Gilland and the Defendant spoke on the front porch, and Officer Gilland recalled the Defendant's calm demeanor. The Defendant reported finding the victim inside the home and thinking a burglary had occurred. The Defendant mentioned a previous burglary at the home, thought a burglar might have entered the home through a rear window, and said the window was usually locked and secured with a bar. Officer Gilland said it was impossible for someone to have entered the home through the window because it was small and because undisturbed cobwebs and dust were on and around the window.

         Photographs of the scene showed holes in a door, which the Defendant reported to Officer Gilland were unrelated to the victim's death and were caused by the Defendant's previous "fits of frustration and rage." A photograph of the bedroom where the victim was found showed a pried-open lockbox. Officer Gilland said that when the police searched the home again two months after the killing, the box's lock was found just outside the carport door.

         Retired Knoxville Police Officer Bob Gass testified that he assisted Officer Gilland in securing the scene. Officer Gass recalled the Defendant's demeanor as the victim was removed from the home by medical personnel and said the Defendant displayed no emotion and grinned.

         Valarie Mabon, records keeper for the United States Postal Service, testified that the victim worked for the postal service at the time of her death. The Defendant submitted claims for the victim's unpaid compensation and an application to receive life insurance benefits, which totaled approximately $70, 000.

         Knoxville Police Investigator Jeffrey Day testified that in 2011, he began investigating the victim's killing after speaking to someone who inquired about the victim's death. Investigator Day reviewed the police file, attempted to locate the witnesses identified in the file, and located new witnesses. Investigator Day was unable to locate the physical evidence recovered from the scene and the medical examiner's office. The lost evidence included the lockbox, a vacuum cleaner bag, a cassette found taped to the windshield of a car parked at the scene, hair, the victim's blood-soaked nightgown, keys, blood collected on cotton swabs, and the Defendant's knife. The confiscated knife was not the suspected murder weapon. Investigator Day said no evidence remained that could have been analyzed for the presence of DNA, and he conceded the blood evidence could have been analyzed for blood type and gender in 1986, although the analyses were not performed. Investigator Day conceded that although fingerprints were on the lockbox found inside the victim's home, the fingerprints did not belong to the Defendant, his wife at the time of the killing, or the Defendant's friend, Mr. Haskins.

         Investigator Day testified that the victim's family hired Dale Goin to investigate the victim's killing and that Mr. Goin's file was provided to the original investigator, Tommy Stiles. Although Investigator Day knew the victim had a romantic relationship with David Nave, Investigator Day did not interview him. Investigator Day did not know what, if anything, was on the cassette found at the scene and was unsure whether anyone listened to it at the time of the initial investigation. Investigator Day assumed the cassette was taped to the victim's car between late Friday night and Sunday afternoon when the Defendant found the victim.

         Investigator Day testified that although Detective Stiles believed the Defendant killed the victim for financial gain, the Defendant did not have financial problems at the time of the victim's death. The victim's family told Investigator Day that the victim oversaw the Defendant's trust fund and provided the Defendant with adequate financial resources. Investigator Day also learned that the Defendant received additional income from his partial ownership of a liquor store.

         Investigator Day learned from the Defendant's 1986 statement to Detective Stiles that burglaries occurred in neighborhood where the victim lived and that the perpetrators of the burglaries were not investigated as possible murder suspects. Investigator Day said that in 1986, Mr. Wilson identified the car in the victim's driveway as a black 300 ZX, that Detective Stiles may have said the black car was a Camaro, and that in 2011, Investigator Day may have asked Mr. Wilson whether the black car was an IROC Z. The victim drove a 300 ZX at the time of her death.

         Knox County Sheriff's Lieutenant Steven Patrick provided Knox County Detention Center records regarding the Defendant and Julio Allen. The records reflect that the Defendant and Mr. Allen were confined in the same jail pod between October 21, 2013, and December 26, 2013.

         Julio Allen testified that he met the Defendant at the jail in late October 2013. Mr. Allen had previous state and federal felony convictions and had served time in prison. He was on parole in Illinois at the time of the trial for attempted armed robbery and had convictions for aggravated unlawful use of weapon and aggravated battery in Illinois. His latest conviction related to unlawful possession of a firearm, and he knew he faced possible consecutive sentences relative to the firearm conviction, the Illinois attempted armed robbery conviction, and his pending Knox County matter. In September 2013, Mr. Allen was charged with aggravated assault in Knox County, and he was unable to obtain release pending resolution of the case.

         Mr. Allen testified that he and the Defendant discussed the charges that led to their respective incarcerations and that the Defendant told Mr. Allen he was in jail "because of this b---- that got killed." Ultimately, the Defendant asked Mr. Allen for assistance with his case because of Mr. Allen's experience with the criminal justice system. Mr. Allen told the Defendant he would need to know the events leading to the Defendant's charges, and the Defendant reported that he "made a mistake" more than twenty years earlier. When Mr. Allen asked about the mistake, the Defendant said that "[he] killed [his] mother" for insurance money, that he was using drugs at the time of the killing, and that he and the victim had "a falling out." Mr. Allen stated that the Defendant claimed that he did not have any money, that he "lost it, " that he stabbed the victim five or six times, that he went home wearing bloody clothes, and that he told his then-wife what occurred. The Defendant told Mr. Allen that he made the scene look like a robbery, that he broke into a lockbox, and that he took about $4, 000 of the victim's property. The Defendant reported inheriting approximately $60, 000, after other family members received shares, and said his then-wife never reported him to the police because she was under the influence of drugs at the time of the killing.

         Mr. Allen testified that he provided the information he learned from the Defendant to Investigator Day because he hoped the State would consider his cooperation in determining how to resolve his pending criminal charges. He denied having been promised anything in exchange for his testimony.

         Barbara Hill Holsinger, the Defendant's second former wife, testified that she and the Defendant had a daughter in 1991. Ms. Holsinger said she became scared of the Defendant because he prevented her from having contact with anyone, including her family. She said that they argued in September or October 1991 and that she suffered injuries as a result. Ms. Holsinger said that during the incident, the Defendant told her that he had stabbed the victim to death and that he would get away with killing Ms. Holsinger. She said the Defendant stated that he made the victim's killing look like a burglary by making it appear as though someone had entered the victim's home through the laundry room window and had "rummaged through" the home. She said the Defendant mentioned "something about a lockbox and . . . bonds or something like that." She said the Defendant told her that he left a lockbox outside the home also in an effort to make the killing look like a burglary. Ms. Holsinger stated that the Defendant told her that he waited in a bedroom closet for the victim to arrive home, waited for the victim to change her clothes, jumped out of the closet, and began stabbing the victim.

         Ms. Holsinger testified that the Defendant also told her that he believed the victim was killed because the victim requested the investigation into the Defendant's father's suicide be reopened. Ms. Holsinger and the Defendant divorced in 1994, and she admitted that she did not participate in the proceedings and that she did not contest the Defendant's having custody of their daughter. Ms. Holsinger admitted she stayed overnight at the Defendant's home when she had child visitation with her daughter.

         Shannon Wells, the Defendant's first wife, testified that she and the Defendant met when they were teenagers, that they fell in love and wanted to get married, that her parents would not consent for them to marry, that she ran away from her parents' home in Alabama, and that she and the Defendant began living with the victim. Ms. Wells and the Defendant eventually married with her parents' consent in June 1986. Ms. Wells and the Defendant continued living with the victim for a period of time but later moved to an apartment.

         Ms. Wells testified that the Defendant treated the victim poorly, frequently asked the victim for money, and became angry when the victim did not do as he asked. Ms. Wells heard the Defendant refer to the victim as a "b----" when he became angry. Ms. Wells heard the Defendant tell the victim that he blamed the victim for his father's suicide. Ms. Wells said that when the Defendant's father died, the Defendant inherited a large amount of money but that the money was provided to the Defendant in monthly installments and was overseen by the victim, who was the executrix of the Defendant's father's estate. Ms. Wells said that the Defendant and the victim argued frequently about the money and that the Defendant asked the victim for money if he needed money beyond his monthly distribution. Ms. Wells recalled that at some point, the Defendant wanted a new vehicle but that the victim would not "sign" for the money. The Defendant became angry and thought the victim was spending his money. The Defendant also mentioned to Ms. Wells that the victim kept bonds in a lockbox inside the victim's home and that although the bonds were in the Defendant's name, the victim's signature was required to cash them.

         Ms. Wells testified that on September 12, 1986, she and the Defendant lived in a Knoxville apartment. She recalled that the Defendant returned home with Mr. Haskins around midnight and that the men were agitated and frantic. She heard Mr. Haskins say, "Oh, f---, oh f--- . . . what are we going to do, " and the Defendant's telling Mr. Haskins to "shut up" because the Defendant needed to think. Ms. Wells said that she saw blood on the Defendant's clothes and that when she asked what was wrong, the Defendant said, "[T]he b---- made me do it." The Defendant grabbed clothes, garbage bags, and cleaning items and said he needed to clean his car, and the Defendant and Mr. Haskins left. Ms. Wells said that the Defendant returned home between 4:00 and 5:00 a.m. and that he wore different clothes, was calm, and went to sleep.

         Ms. Wells testified that sometime around the time the victim's body was discovered, the Defendant told Ms. Wells to tell the police that she went fishing with him on the night of the killing. Ms. Wells recalled the Defendant's stating she would be sorry if she did not tell the police they were fishing. Days after the police finished processing the scene, the Defendant and Ms. Wells returned to the victim's home. Ms. Wells recalled that the Defendant gathered items he wanted, that he was not emotional, and that he ordered her to clean the victim's bedroom. Ms. Wells said that sometime after the victim's death, the Defendant grabbed her hair, put a knife to her throat, and said, "[Y]ou know what happened to my mother, you don't think I'll hesitate for a second with a w----like you." She said she was terrified. She recalled other instances in which the Defendant threatened to harm her family if she told the police what occurred on the night of the victim's death. Ms. Wells returned to her family in Alabama about one month after the killing. She said that after she returned to Alabama, she began working at Walmart. She recalled one occasion in which she received a telephone call while at work. She answered the call and said the Defendant told her "you didn't think I couldn't find you, did you? I'll always be able to find you." She said that the Defendant laughed and that she ended the call.

         Ms. Wells testified that she initially told the police she and the Defendant were fishing at the time of the victim's death but that she returned to Knoxville in December 1986 for a second interview. Although Ms. Wells did not tell the police everything that transpired on the night of the killing, she told the police that she and the Defendant were not fishing and that the Defendant was capable of killing the victim. She said she did not provide the police with any details because the Defendant knew where she lived and worked in Alabama. She said that was her last contact with the police until 2011. She said that in 2011, Investigator Day contacted her and that she agreed to speak with him about the night of the victim's death. Ms. Wells told Investigator Day that the Defendant came home on the night of the killing with blood on his clothes.

         Ms. Wells testified that on Sunday morning before the victim's body was discovered, the Defendant left to play football with his friends. She said that the Defendant asked if she knew where he could find the football and that she told him it was at the victim's house. She said that the Defendant left and that the police arrived at their apartment around 7:00 p.m. She agreed she told the police that she and the Defendant were fishing on Friday night. She said that when the police searched their apartment, stolen goods were found and that she, the Defendant, and the Defendant's friend were charged with possession of stolen goods. She said that she returned to Knoxville to address the criminal charge and that she spoke to the police about the victim's killing. She said that the police knew she had nothing to do with the stolen goods and dismissed the charge and that she decided to tell the police that the Defendant was not with her on the night of the victim's death. She did not know the police suspected that she was involved in the killing and that she and the Defendant created mutual alibis.

         Ms. Wells testified that although she told the police in December 1986 that she believed the Defendant was capable of killing the victim, she did not tell the police the Defendant and the victim argued about money. Ms. Wells agreed the victim called her on the night of the killing because the victim had fair tickets. She said that on the night of the killing, the Defendant did not leave blood inside their apartment and that she only saw blood on his hands and clothes. She said that the Defendant probably knew she knew what he had done and that the Defendant also knew she was terrified of him. She agreed the Defendant did not say, "I did it." Ms. Wells stated that she did not know Ms. Holsinger existed until the trial and that she had never heard the name Julio Allen.

         Dr. Darinka Mileusnic-Polchan, Chief Medical Examiner, testified that Dr. Frances Patterson performed the victim's autopsy in 1986. Dr. Mileusnic-Polchan reviewed the autopsy report and corresponding materials and concluded that the victim suffered six stab wounds to the chest above the heart, two of which went through the heart, and "slashes" to the upper chest and lower neck. The victim also suffered blunt force trauma to the forehead, right eye, and right ear and suffered abrasions, scrapes, and bruises to the neck and chin area that were consistent with choking. Dr. Mileusnic-Polchan concluded that stab wounds were the primary cause of death.

         Dr. Mileusnic-Polchan concluded, based upon the condition of the victim's body, that the time of death was more than one day before the victim was found. The victim displayed defensive wounds on her right hand. Dr. Mileusnic-Polchan concluded that the stabbing occurred when the victim was on or around the bed, that the victim could have been upright when the incident occurred, and that most of the stab wounds were inflicted when the victim was lying down. She noted that the bedroom did not contain much blood due to the nature of the stab wounds and said that tissue tended to close slightly once a knife was removed, causing internal bleeding, not blood spurts.

         The defense recalled Investigator Jeffrey Day who confirmed that Ms. Wells told him that she knew something had occurred on Sunday after the victim's death because the police came to her and the Defendant's apartment. Investigator Day agreed Detective Stiles believed the Defendant and Ms. Wells created alibis for each other.

         Upon this evidence, the Defendant was convicted of second degree murder and received a twenty-four-year sentence. This appeal followed.

         I. Motions to Dismiss

         The Defendant filed multiple motions to dismiss the indictment, which the trial court denied. The motions relevant on appeal relate to the loss or destruction of the physical evidence, to violations of the Defendant's due process right to a fair trial because of the pre-indictment delay, and to a violation of his right to a speedy trial.

         A. Destruction of Evidence & Pre-Indictment Delay

         The Defendant sought a dismissal of the indictment pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), based upon the destruction or loss of the physical evidence collected at the crime scene in 1986. In a separate but related motion to dismiss the indictment, the Defendant argued that his due process right to a fair trial had been violated because of the extensive pre-indictment delay. He asserted that the pre- indictment delay resulted in the loss of exculpatory evidence and the unavailability of many witnesses, who had died since the offense.

         At the motion hearing, the parties stipulated that on September 14, 1986, evidence was obtained by law enforcement at the victim's home but was at an unknown date lost or destroyed. The missing evidence included a lockbox and its contents, a vacuum cleaner bag with its contents, hairs and fibers, a cassette with latent fingerprints, the victim's nightgown and undergarments worn at the time of her death, clothes the victim wore before changing into her undergarments on the night of the murder, and a pocketknife and miscellaneous keys. The parties also stipulated that additional evidence obtained during the investigation was lost or destroyed, which included a red plastic knife found near the victim's home, a knife obtained from the Defendant's home, and the recording of the Defendant's 9-1-1 call. The parties stipulated that the only photographs maintained by the police that showed the missing evidence depicted the victim in her nightgown, the lockbox and its cylinder, the cassette that was taped to a car window, and the vacuum. The parties stipulated that no analysis of the physical evidence was performed, except that latent fingerprints were removed from the cassette, lockbox, and vacuum and that the knife obtained from the Defendant was negative for the presence of blood.

         The parties stipulated Todd Haskett, Detective Tommy Stiles, Carl Ervin, Dale Goin, and David Nave were deceased at the time of the proceedings, although they were relevant trial witnesses. Likewise, although the following witnesses were interviewed by the police, no recording of the interviews existed: David Nave, Kevin Wilkes, Doug Giles, Rex Allen Ervin, Larry Gilland, Carl Ervin, Nancy Ervin, Paul Yarber, Charles Hope, Randy David, David Day, Susan Breeding, [2] Jeffery Scott Massey, Greg Holt, and Carla Tidmore. The parties stipulated that Shannon Wells, David Nave, Carl Ervin, Tony Gray underwent polygraph examinations, that the police file indicated some of the questions asked and the examiner's findings, and that the recordings were not available.

         Defense counsel argued that all of the physical evidence obtained during the 1986 investigation had been lost or destroyed. Counsel noted that the forensic evidence could have been tested for the presence of DNA based upon scientific advancements since the killing and discussed the deaths of numerous witnesses. Counsel argued that the Defendant's alibi witness, Ms. Breeding, who would have placed the Defendant at a convenience store at the time of the killing, had died the previous year. Counsel noted that Ms. Breeding provided her statement to Detective Stiles and that Ms. Breeding's testimony would have contradicted Shannon Wells's proposed trial testimony. Counsel contended that the lost evidence, in conjunction with the deceased witnesses, deprived the Defendant of his right to a fair trial.

         Walter Davis, an investigator for the public defender's office, testified that he interviewed Frank Denny, the victim's next-door neighbor, who could not recall any details about the night of the killing. Mr. Denny reported that he recalled providing the police with a statement, that he did not recall the substance of his statement, and that whatever he told the police at the time of the killing was accurate. At the time Mr. Davis spoke with Mr. Denny, Mr. Denny could not recall what cars, if any, were parked at the victim's home. Mr. Denny recalled, though, that the Defendant and his friends frequented the victim's home.

         Detective Tommy Stiles's investigative report detailed the detective's investigation between September 14, 1986 and October 3, 1986. In relevant part, the report noted that latent fingerprints were taken from the metal lockbox found in the victim's bedroom but that the fingerprints did not belong to the victim, the Defendant, or Ms. Wells.

         A transcript of Detective Stiles's interview of Jean Weaver reflected that Ms. Weaver stated the victim feared the Defendant and thought the Defendant was going to kill her. Ms. Weaver discussed the victim's relationship with David Nave and said the victim was planning to end the relationship because the victim did not love Mr. Nave, although the couple had a good relationship. Ms. Weaver said that although Mr. Nave wanted a serious relationship, the victim only wanted a casual relationship and that the victim felt comfortable enough with Mr. Nave to discuss with him the problems she was having with the Defendant. Ms. Weaver recounted the victim's finding the Defendant and his wife using cocaine in the victim's home, the victim's throwing away the drugs, and the Defendant's becoming angry. Ms. Weaver recalled another incident in which the Defendant became angry, choked the victim, and broke the victim's vacuum cleaner. Ms. Weaver stated that the victim discussed finding another place to live in an effort to avoid the Defendant.

         Ms. Weaver stated that anytime the Defendant became angry with the victim, the Defendant always "knocked her around" and said the victim should have been the person who died, not the Defendant's father. The victim told Ms. Weaver that the Defendant struck the victim numerous times. Ms. Weaver said the Defendant always wanted money from the victim and became angry when the victim did not provide it. At some point, the Defendant took a few bonds from the victim's home without her permission. The victim confronted the Defendant and attempted to explain that although the Defendant's name was on the bonds, the bonds became solely his upon her death. Ms. Weaver said the victim stored the bonds in the glove compartment of the victim's car after the incident, which was consistent with Detective Stiles's finding the bonds in the victim's car.

         The trial court denied the Defendant's motion to dismiss relative to the lost or destroyed evidence and portions of the police investigative file from the initial investigation. The court determined that the State had no duty to preserve the lost or destroyed evidence. Relative to the vacuum cleaner bag, hair, and fibers that were collected and lost, the court found that no evidence showed the items possessed "apparent exculpatory value" and that even if Mr. Nave's DNA was found on the items, such evidence would not have exculpated the Defendant because Mr. Nave had been dating the victim and had been inside the victim's home. Relative to the cassette found taped to the victim's car and apparently left by Mr. Nave, the court found that no evidence showed the cassette possessed exculpatory value. Relative to the remaining missing evidence, the court found the items possessed "no readily apparent exculpatory value." The court noted that no evidence showed that the victim's clothes contained DNA evidence and that any DNA from Mr. Nave would have had little significance because of his relationship with the victim. The court found that relative to the lockbox, the knife from the victim's home, the knife obtained from the Defendant, and the keys and pocket knife from the victim's home, no evidence showed the items possessed any apparent exculpatory value or were material to the defense. As a result, the court concluded that the lost evidence was not constitutionally material.

         The trial court determined that no evidence showed why or how the evidence was lost or destroyed and noted that it was not surprising evidence would have been lost during a twenty-five-year period. The court found, though, that the State's failure to maintain the evidence was negligent and that the negligence weighed in favor of the Defendant.

         The trial court found that the portions of the police investigative file showed that "subsequent testing and investigation demonstrated a lack of either inculpatory or exculpatory information." The court noted that some of the items were negative for fingerprints and that the knife obtained from the Defendant was negative for blood. The court said the hairs and fibers were of little value. The court found that based upon the defense theory that Mr. Nave committed the offense, the fibers and hairs were of little significance because Mr. Nave had been inside the victim's home. The court noted that none of the missing items were the basis for the charge against the Defendant.

         The trial court determined that the State's case was based almost entirely upon the Defendant's former wives' statements to the police and that the remaining evidence, including the lost evidence, had comparatively little value. The court noted that the defense had sufficient information to cross-examine the witnesses and determined that the Defendant had not been denied his right to a fair trial, despite the lost or destroyed evidence.

         The trial court also denied the Defendant's motion to dismiss on the basis that the Defendant's due process rights were violated by the extensive pre-indictment delay. In analyzing the factors delineated in State v. Gray, 917 S.W.2d 668 (Tenn. 1973), and State v. Utley, 956 S.W.2d 489 (Tenn. 1997), the court found that the twenty-six-year delay between the victim's killing in 1986 and the commencement of prosecution in 2012 was sufficient to raise due process implications. Relative to prejudice created by the delay, the court noted that the Defendant argued he was prejudiced because of the lost memory of witnesses, lost exculpatory testimony as a result of witnesses' deaths, and lost evidence. The court noted that Dale Goin's investigative report reflected that Frank Denny saw a car at the victim's home around that time of the killing and that Mr. Denny thought the car belonged to David Nave, the victim's boyfriend. Mr. Denny could not recall this statement when interviewed by Mr. Goin in 2012. The court found that although Mr. Denny's statement to Mr. Goin might "potentially place" another person at the victim's home, the loss of the evidence was "only slightly prejudicial" in the context of a due process claim. The court found that other "sources of information" showed the victim and Mr. Nave were dating at the time of the killing. Likewise, the court noted that Mr. Goin's report reflected that Mr. Denny never saw Mr. Nave enter or leave the victim's home and that Mr. Denny only saw the car in the driveway around 10:00 a.m. the day after the killing. The court found that any testimony Mr. Denny could have provided had slight significance and that Mr. Denny's memory might have been refreshed upon questioning at the trial.

         Relative to the witnesses who had died since the initial investigation, the trial court found that no recording of their police interviews existed. The court found, though, that the Defendant failed to show any prejudice and that the Defendant had presented "mere speculation" about the information possessed by the relevant witnesses.

         Relative to whether the delay in the proceedings was intentional or whether the State had a reckless disregard for the prejudicial effect of the delay, the court concluded that the Defendant was not entitled to relief. The court found that the Defendant was the sole suspect at the time of the offense and remained the sole suspect. The court found that the State decided not to seek criminal charges against anyone at the time of the killing, that the investigation stalled, and that the investigation was not renewed until 2011. The court found that it was during the subsequent investigation that the State obtained statements from the Defendant's former wives implicating the Defendant in the victim's death. The court stated, "In plain and simple language, the State did not have sufficient evidence to prosecute the Defendant for 25 years, even if they had wanted to do so." Therefore, the court found that the delay was caused by the police having insufficient evidence and that the State promptly obtained an indictment after the new evidence was obtained. The court found that the delay was reasonable under the circumstances, not the result of the State's attempting to obtain a tactical advantage.

         1. Lost or Destroyed Evidence

         The Defendant contends on appeal that the trial court erred by denying his motion to dismiss. He argues that the hairs and fibers, the victim's clothes, and the lockbox were not examined by the defense, that the evidence could have been analyzed for the presence of DNA with scientific advancements, and that the evidence was necessary for trial preparation. He maintains that had he been able to analyze the evidence for fingerprints and DNA, possible suspects could have been identified, including Mr. Nave, a burglar, or another unknown person. The State contends that it did not have a duty to preserve the evidence, that the evidence had no apparent exculpatory value, and that the evidence was constitutionally "insignificant."

         The Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution afford every criminal defendant the right to a fair trial. See Johnson v. State, 38 S.W.3d 52, 55 (Tenn. 2001). As a result, the State has a constitutional duty to furnish a defendant with exculpatory evidence pertaining to his guilt or lack thereof or to the potential punishment faced by a defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963).

         Our supreme court has held that the State has a duty to preserve discoverable evidence when the evidence

might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Ferguson, 2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)); see Tenn. R. Crim. P. 16 (discoverable evidence); see also State v. Merriman, 410 S.W.3d 770, 779 (Tenn. 2013). The supreme court has said that the proper inquiry involves, first, determination of whether the State had a duty to preserve the evidence. Ferguson, 2 S.W.3d at 917. This duty to preserve applies to "potentially exculpatory" evidence. Merriman, 410 S.W.3d at 793 (citing Ferguson, 2 S.W.3d at 917). If the State failed to fulfill the duty, three factors must be considered:

1. The degree of negligence involved;
2. The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available; and
3. The sufficiency of the other evidence used at trial to support the conviction.

Id. The supreme court has said that in evaluating these factors:

[T]he central objective is to protect the defendant's right to a fundamentally fair trial. If, after considering all the factors, the trial judge concludes that a trial without the missing evidence would not be fundamentally fair, then the trial court may dismiss the charges. Dismissal is, however, but one of the trial judge's options. The trial judge may craft such orders as may be appropriate to protect the defendant's fair trial rights. As an example, the trial judge may determine, under the facts and circumstances of the case, that the defendant's rights would best be protected by a jury instruction.

Id. A trial court's application of the Ferguson factors involves a constitutional issue, and our supreme court has concluded that the proper standard of review on appeal concerning the fundamental fairness of a trial is de novo. Merriman, 410 S.W.3d at 791.

         The record reflects that the physical evidence obtained at the crime scene was lost or destroyed for an unknown reason and at an unknown time. The only forensic evidence obtained from the items seized was latent fingerprints from the cassette, lockbox, and vacuum cleaner. The latent fingerprints obtained from the metal lockbox found in the victim's bedroom did not belong to the victim, the Defendant, or the Defendant's then-wife Shannon Wells. Also, no blood was detected on a knife, and it was not considered the murder weapon. The remaining evidence was not analyzed before it was lost or destroyed.

         The defense argued that the seized evidence could have been further analyzed due to scientific advancements in DNA technology since the time of the killing. The Defendant's theory of the case was that someone other than the Defendant entered the home and killed the victim. As the Defendant argues in his brief, one potential suspect was Mr. Nave, who was romantically involved with the victim at the time of her death. Witness statements reflect that the victim was thinking of ending her relationship with Mr. Nave, and the police investigation showed Mr. Nave taped a cassette to the victim's car on the night of the killing. Other potential suspects included a burglar, based upon recent burglaries in the victim's neighborhood, and an unknown person who had no connection to the burglaries. Although the trial court correctly found that forensic evidence of Mr. Nave's presence inside the victim's home might not have exculpated the Defendant of the victim's homicide because Mr. Nave had previously been inside the victim's home, the presence of Mr. Nave's DNA, or anyone else's DNA, on the victim's clothes or body at the time of her death could have implicated someone other than the Defendant. We note that the victim declined to spend the evening with Mr. Nave on the night of the killing and decided to spend time with Ms. Brown, in whom the victim confided she was thinking of ending the relationship. Any forensic evidence linking anyone, including Mr. Nave, to the clothes the victim wore that night, to her nightgown, or to her body would have been potentially exculpatory evidence. We note that in its brief, the State acknowledges the evidence was obtained because it was "possibly significant." It is the potential for exculpatory evidence that triggers, in part, the duty to preserve. See Merriman, 410 S.W.3d at 793; Ferguson, 2 S.W.3d at 917. Furthermore, the Defendant had no ability to obtain comparable evidence from another source. Any photographs of the items remaining after twenty-six years would not have permitted scientific forensic analyses of the relevant evidence. Therefore, we conclude that the State had a duty to preserve the evidence because the evidence might have shown the presence of DNA belonging to someone other than the Defendant.

         Relative to the cassette taped to the victim's car, we note that no evidence shows the investigating officers listened to the cassette before it was lost or destroyed, that the contents of the cassette are unknown, and that it is impossible to determine whether the evidence exculpated or inculpated the Defendant or anyone else. Because the investigating detective did not listen to the cassette or document its contents, it is problematic to conclude that the cassette did not possess any evidentiary value. It is likewise problematic to determine the cassette did not possess exculpatory evidence without knowing its contents. A conclusion that the cassette has no value when it is impossible to know what evidence, if any, the cassette contained is illogical and invites the potential for police misconduct.

         Regarding the remaining Ferguson factors, the State concedes that it was negligent in failing to maintain the evidence after it was seized, and the trial court properly found that the State was negligent in this regard. See Ferguson, 2 S.W.3d at 917 n.10 (stating that negligence is presumed from lost evidence). Relative to the significance of the lost or destroyed evidence, we note again that had the evidence been preserved, it might have shown forensic evidence connected to the Defendant or to someone else. Although the original police file noted that "subsequent testing and investigation demonstrated a lack of either inculpatory or exculpatory information, " the record only reflects that some latent fingerprints were obtained, none of which belonged to the Defendant, and that some items were analyzed for the presence of blood. None of the items were analyzed for blood type. Also, scientific advancements in the area of DNA evidence might have revealed additional information on those items previously examined and on evidence never analyzed by law enforcement. Although the court found that the hairs and fibers were of little value, the court did not explain the basis for its finding. We acknowledge, though, that other evidence showed the Defendant's car at the victim's home around the time of the killing, that the Defendant was violent toward the victim, that the victim was scared of the Defendant, and that the victim, to a certain extent, controlled the Defendant's trust fund, which evidence showed was a source of contention between the victim and the Defendant. We conclude that the lost or destroyed evidence had some significance.

         Relative to the sufficiency of the convicting evidence, we conclude that none of the evidence was used during the State's case-in-chief. The State's case centered on the Defendant's incriminating statements to his former wives and to Julio Allen. Mr. Allen testified that the Defendant reported stabbing the victim five to six times, staging the victim's home to look as though a robbery had occurred, and killing the victim for life insurance proceeds. Ms. Hoslinger, the Defendant's second wife, testified that the Defendant admitted killing the victim inside her bedroom after she changed into her nightgown and admitted opening the laundry room window and rummaging through the home to make it look as though a burglary occurred. These statements were corroborated by the medical examiner's testimony regarding the stab wounds, by photographs of the crime scene, by Officer Gilland's testimony about the Defendant's suggesting the killing occurred during a burglary and asking the officer to look at the opened laundry-room window, and by the victim's life insurance policy reflecting the Defendant was the beneficiary. We note, though, that the defense cross-examined Mr. Allen and the Defendant's former wives, highlighting their inconsistent statements and motives to provide untruthful testimony against the Defendant.

         Upon balancing these factors, we conclude that the lost or destroyed evidence implicated the Defendant's right to a fundamentally fair trial. The question becomes one of the proper remedy to preserve the Defendant's right to a fair trial. In this regard, we conclude that the trial court did not abuse its discretion in denying the Defendant's motion to dismiss the indictment because the relevant evidence was not used to implicate the Defendant in the victim's killing, because the remaining evidence was sufficient to support the conviction, and because the Defendant possessed sufficient information to impeach the credibility of the State's primary witnesses. We note that after the defense's closing argument, a bench conference was held in which the trial court told counsel that it had omitted the Ferguson jury instruction regarding the duty to preserve evidence. Upon revising the final jury instruction to include the duty to preserve evidence, however, defense counsel was permitted to address the issue in his closing argument before the State's rebuttal closing argument. The record reflects that the court provided the pattern jury instruction regarding the State's duty to gather and preserve evidence. See T.P.I.- Crim. 42.23 (19th ed. 2015).

         The jury was aware the police collected but lost potentially important evidence, and the jury's verdict reflects it credited the witness testimony regarding the Defendant's admissions and incriminating statements despite the lost evidence and the defense's impeachment of the witnesses. A dismissal of the indictment was not required in order to protect the Defendant's right to a fundamentally fair trial. The Defendant is not entitled to relief on this basis.

         2. Pre-Indictment Delay

         Although the Defendant argued before the trial court that the pre-indictment delay violated his due process right to a fair trial, he frames the argument in his appellate brief as a violation of his Sixth Amendment right to a speedy trial because of a pretrial delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972); State v. Baker, 614 S.W.2d 352, 355 (1981). However, the record reflects that the Defendant did not assert his Sixth Amendment right to a speedy trial in his motion to dismiss or at the motion hearing and that the trial court did not render a judgment regarding a speedy trial violation. Rather, the Defendant contended that his due process right to a fair trial had been violated by the extensive pre-indictment delay because of the lost or destroyed evidence and the deaths of potential trial witnesses. We note that a pre-indictment delay does not violate a defendant's Sixth Amendment right to a speedy trial. See State v. Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990). In any event, we consider only whether the Defendant's due process right to a fair trial was violated by the pre-indictment delay. To the extent that the Defendant argues that a speedy trial violation occurred, the issue is waived because it was not raised in the trial court. See T.R.A.P. 36(a).

         The Fifth and Fourteenth Amendments to the United States Constitution and article I, section 8 of the Tennessee Constitution provide a criminal defendant with the right to due process. A delay between the commission of an offense and the initiation of formal proceedings may violate the right to due process. State v. Gray, 917 S.W.2d 668, 671 (Tenn. 1996).

Before an accused is entitled to relief based upon the delay between the offense and the initiation of adversarial proceedings, the accused must prove that (a) there was a delay, (b) the accused sustained actual prejudice as a direct and proximate result of the delay, and (c) the State caused the delay in order to gain tactical advantage over or to harass the accused.

Dykes, 803 S.W.2d at 256; see State v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997); United States v. Marion, 404 U.S. 307 (1971). Prejudice to a defendant is the most critical factor. State v. Gilley, 297 S.W.3d 739, 755 (Tenn. Crim. App. 2008).

         The record reflects that the offense occurred in September 1986 but that the Defendant, who was the sole suspect from the time of the killing, was not indicted for first degree murder until April 2012. The Defendant has established a lengthy pre-indictment delay that implicates the due process right to a fair trial.

         Relative to prejudice to the Defendant as a result of the delay, the record establishes that the physical evidence was lost or destroyed, some of which was never analyzed and some of which was only analyzed for the presence of blood and latent fingerprints, and that the defense was unable to analyze this evidence to support its theory that someone other than the Defendant killed the victim, most notably Mr. Nave or an unknown assailant. Likewise, the parties stipulated that multiple people had died during the pre-indictment delay, including Detective Tommy Stiles, the original investigator, Mr. Nave, the victim's boyfriend, Dale Goin, the victim's family's private investigator, and Todd Haskins, the Defendant's friend who some suspected was involved in the victim's killing. The trial court found that the Defendant was "slightly prejudiced" by the passage of time relative to witnesses who were still living but whose memories had faded. Frank Denny told the police at the time of the killing that he thought he saw Mr. Nave's car at the victim's home the day after the killing but could not recall providing this information to the police when he was interviewed by Mr. Goin in 2012. The court correctly found that Mr. Denny never told the police that he saw Mr. Nave enter or leave the home on the night of the killing and that even if Mr. Denny's memory could have been refreshed, any testimony had only slight significance. Relative to the witnesses who had died since the initial investigation, the trial court found that no recording of their police interviews existed. The court found, though, that the Defendant failed to show any prejudice and that the Defendant had presented "mere speculation" about the information possessed by the relevant witnesses.

         In any event, the Defendant failed to establish that the pre-indictment delay was caused by the State in order to gain tactical advantage over or to harass the Defendant. The record supports the trial court's finding that the cause of the delay was insufficient evidence to charge the Defendant for the victim's killing. The Defendant was the sole suspect at the time of the offense and remained the sole suspect until the Defendant was indicted in 2012. The court found that it was not until the subsequent investigation beginning in 2011 that the State obtained statements from the Defendant's former wives implicating the Defendant in the victim's death. The court stated, "In plain and simple language, the State did not have sufficient evidence to prosecute the Defendant for 25 years, even if they had wanted to do so." We conclude that the State did not intentionally or with reckless disregard delay obtaining an indictment in order to obtain a tactical advantage or to harass the Defendant. As a result, he is not entitled to relief on this basis.

         B. Pre-Indictment Delay & Right to a Speedy Trial

         The Defendant also sought a dismissal of the indictment on the ground that his due process right to a fair trial had been violated because the pre-indictment delay resulted in the death of his alibi witness. In the same motion, the Defendant asserted that his right to a speedy trial had also been violated. In support of his motion, he argued that the death of his potential alibi witness, along with the lost evidence and the passage of twenty-seven years, ...


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