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State v. Bell

Court of Criminal Appeals of Tennessee, Jackson

May 9, 2017


          Session January 4, 2017

         Appeal from the Criminal Court for Shelby County No. 13-01286 Lee V. Coffee, Judge

          ALAN E. GLENN, JUDGE

         The Defendant, Heath Bell, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and first degree felony murder. The trial court merged the convictions and sentenced the Defendant to life imprisonment. The Defendant raises the following five issues on appeal: (1) whether the trial court erred by denying his motion to suppress tainted eyewitness identification testimony; (2) whether his due process rights were violated by the State's withholding of exculpatory evidence of a possible third party perpetrator; (3) whether the trial court erred by not granting his request for a new trial based on the newly discovered exculpatory evidence; (4) whether the evidence was sufficient to establish his identity as one of the perpetrators; and (5) whether the trial court erred by limiting his closing argument. Following our review, we affirm the judgment of the trial court.

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

          Monica A. Timmerman (on appeal) and Michael E. Burton (at trial), Memphis, Tennessee, for the appellant, Heath Bell.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Samuel D. Winnig, Tracye N. Jones, and Colin A. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.



         On the night of February 15, 2013, the victim, Joe Howell, was shot to death in his newly leased Hyundai Trailblazer in the parking lot of the Pendleton Place Apartments in Memphis. Fifteen hundred dollars in cash, which the victim earlier had on his person, was missing when his body was discovered in his vehicle. Kayla Jennings and her boyfriend, James Edwards, identified the Defendant and his co-defendant, Nicholas Augustus, as two men with guns they had seen acting in a suspicious manner in the area shortly before the shooting. In addition, Chamere Talley, the sister of the victim's girlfriend, informed the police that she looked out her apartment after hearing gunshots and saw the Defendant and a second man in dreadlocks running near the victim's crashed vehicle. Ballistics evidence revealed that two different guns were fired at the victim and that shots entered from both the driver's and the passenger's side of the vehicle. Although the Defendant claimed to have been with his girlfriend in East Memphis at the time, cell phone records revealed that phone calls were made and received by his cell phone in the area of the shooting around the time the victim was shot. The Shelby County Grand Jury subsequently indicted the Defendant and Mr. Augustus with the first degree premeditated murder and first degree felony murder of the victim and the employment of a firearm during the commission of a dangerous felony. The men were tried together before a Shelby County Criminal Court jury, which found the Defendant guilty of both murder counts and Mr. Augustus not guilty of both counts. The trial court dismissed the firearm charge, merged the Defendant's murder convictions, and sentenced him to life imprisonment.

         Suppression Hearing

         Prior to trial, the Defendant filed a motion to suppress the eyewitness identification of Ms. Jennings, arguing that any courtroom identification made by her would be impermissibly tainted because she had been present at earlier court hearings in which the Defendant was dressed in prison attire and addressed by name by the trial judge. The Defendant asserted that such a procedure was "at best, equal to, and at worst, far more suggestive, than a 'show-up identification.'"

         At the May 1, 2015 suppression hearing, held out of the presence of the Defendant and Mr. Augustus, Ms. Jennings testified that on the night the victim was shot she was walking across the street toward her apartment complex with her then-boyfriend, James Edwards, when he pushed her in the back several times and said, "Don't you see them n****s over there? They look like they fixing to do something." When she looked in the direction he indicated, she saw two men with guns standing at the corner of an apartment building. Frightened, she and Mr. Edwards hurried home to her apartment. Approximately five to ten minutes later, they saw that "the apartment complex was full" of police cars and ambulances.

         Ms. Jennings testified she had never seen the two gunmen before that night and did not provide any descriptions of them to the police. However, she accompanied Mr. Edwards, who was subpoenaed as a witness, to the preliminary hearing held approximately one month after the shooting, and immediately recognized the Defendant and Mr. Augustus when they entered the courtroom as the two armed men she had seen that night. She was seated in one of the last rows of the courtroom and recognized the men before their names were called or they were otherwise identified. She also recognized the men as the gunmen during a March 23, 2015 court hearing in the case in which the trial court threatened to put her in jail because she had an outstanding warrant. During that latter hearing, the trial judge had her sit in one of the "jail chairs" approximately ten feet from the Defendant and Mr. Augustus. She was seated in the courtroom for approximately three minutes before the judge called her to come up to the microphone, and she was seated in one of the "jail chairs" in the same row as the men for two to three minutes. No one pointed out the men to her at either court hearing, and she was not influenced in her recognition of them by Mr. Edwards' identifications. Instead, she immediately recognized them at both hearings based on their "facial structures" from having seen them on the night of the shooting. She estimated that she was less than half a football field's length from the Defendant and Mr. Augustus at the time she saw them standing at the corner of the apartment building.

         Ms. Jennings recalled that one of the two men was an inch or an inch and a half taller than the other one and had a lighter complexion. She also recalled that the taller, lighter-skinned man was wearing a red jacket. She could not, however, relate any specific facial features or hairstyles of either man. Nevertheless, she testified that she would be able to recognize both men from their facial structures if she saw them again.

         At the conclusion of the hearing, the trial court overruled the motion to suppress the identifications, accrediting Ms. Jennings' testimony that she immediately recognized the Defendant and his co-defendant when they entered the courtroom at the preliminary hearing and that her identifications were based on her experience the night of the shooting rather than any outside influences. The court also found that the circumstances under which the original viewing occurred rendered her identification reliable.


         State's Proof

         At trial, the victim's wife, Juwana Howell, testified that she last saw the victim alive at approximately 6:00 p.m. on February 14, 2013, when he left alone in his just-leased Hyundai Trailblazer with approximately $1500 in cash in his pocket.

         Terrence Harrold testified that at approximately 10:20 p.m. on February 15, 2013, he was leaving the Pendleton Place Apartments with friends when he saw a SUV in the bushes that appeared to have been in an accident. The vehicle was still running, and a nonresponsive man was slumped over the steering wheel. Before the police arrived, Mr. Harrold saw a woman approach the passenger's side of the vehicle, open the door, reach in, and turn the ignition off before leaving the scene.

         Officer Hal Owens of the Memphis Police Department testified that Mr. Harrold flagged him down to report a wrecked vehicle in the bushes at the Pendleton Place Apartments. The first officer to arrive, he secured the scene until other officers responded. To the best of his memory, both the glove box and the console of the vehicle were open when he arrived.

         Officer James P. Smith, a crime scene officer with the Memphis Police Department, identified various photographs of the crime scene as well as five spent shell casings -- two 9-millimeter and three 40-caliber -- that were recovered from the scene. The vehicle's glove box, console, and hatchback were all open when he arrived, and no money was recovered from the victim's body or the vehicle.

         James Edwards testified that in February 2013 he lived with Kayla Jennings in the Kimball Cabana Apartments next-door to the Pendleton Place Apartments. He knew both the Defendant, who went by the nickname "Bean, "[1] and Mr. Augustus from the neighborhood. On the afternoon of February 15, 2013, he saw the Defendant at about 5:00 p.m. when he was returning from a store. At about 10:00 or 10:30 p.m. that same day, he and Ms. Jennings were walking back together from another trip to the store when he noticed the Defendant and Mr. Augustus standing by the corner of the Pendleton Place Apartments. He first recognized the Defendant because he was wearing the same clothes he had on earlier in the day. The area was well-lit by street lights, and Mr. Edwards was able to see that Mr. Augustus was standing with the Defendant. Both men had guns in their hands and appeared to be "up to something."

         Mr. Edwards testified that he feared the men were about to "come at [him], " so he pushed Ms. Jennings in the back and instructed her to quicken her pace. As he and Ms. Jennings hurried home, he kept watching the Defendant and Mr. Augustus through the fence "trying to make sure they didn't shoot through the fence or [anything]." No more than fifteen or twenty minutes after he and Ms. Jennings reached home, he looked out the door to see the lights of emergency vehicles in the apartment complex. Mr. Edwards acknowledged that he and Ms. Jennings had been drinking and smoking marijuana that day but said he was not "too intoxicated" and was aware of his surroundings at the time he saw and recognized the Defendant and Mr. Augustus.

         Mr. Edwards testified that he did not want to get involved in the case, but police detectives obtained his telephone number and called him. He first met with a detective at a neighborhood pizza restaurant, where he told the detective that he wanted "to leave [Ms. Jennings] out of it" because he did not "know what they would try to do to her or her kids." He later went to 201 Poplar, where he positively identified the Defendant and Mr. Augustus from photographic spreadsheets as the gunmen he had seen that night. Mr. Edwards identified the photographic spreadsheets, which were admitted as exhibits and published to the jury. He testified that he received $1000 for a CrimeStoppers' tip he reported, but that was the only money he received in connection with the case. He was subpoenaed to appear as a witness and was not being paid anything for his court testimony.

         On cross-examination Mr. Edwards acknowledged that he and Ms. Jennings had been drinking alcohol and smoking marijuana throughout the day on February 15, 2013, as they celebrated his recent graduation from Vatterott College. He testified that he identified the Defendant from the photographic lineup he was shown by police on February 19 and identified Mr. Augustus from another photographic lineup on February 25, 2013. On February 26, he gave his formal written statement to police about what he had witnessed. He acknowledged he was incorrect in his preliminary hearing testimony that the Defendant and Mr. Augustus were within twenty-five feet of him when he saw them and that they were probably further away. He was adamant, however, that he was certain in his identifications.

         Mr. Edwards could not recall having said in the preliminary hearing that Mr. Augustus was trying to cover his face and could not with certainty recall that detail at the time of trial. What he was certain of was that both men were armed with guns and that both were acting in a suspicious manner as if "fixing to get ready to do something[.]" He acknowledged that his clear view of the men lasted only approximately two seconds as he walked from the middle of the street toward his apartment complex. He also acknowledged that there was a six-foot wooden privacy fence between the apartment complexes. He insisted, however, that he was able to watch the men through the numerous broken and missing boards of the privacy fence as he and Ms. Jennings continued to their apartment. He reiterated that he first recognized the Defendant, who was wearing a red coat, by his clothing, and he acknowledged that he had seen him "many times" in the past wearing a red coat.

         In response to questions from the jury, Mr. Edwards testified that he reported the CrimeStoppers' tip after the detective informed him he could receive money for providing a tip about the crime. He did not call CrimeStoppers before he met with the police because he "wasn't in it for the money" and knew nothing about the possibility of being paid until the detective told him about it.

         Kayla Jennings reiterated her preliminary hearing testimony about how she saw the armed men standing at the corner of the Pendleton Place Apartments after Mr. Edwards pointed them out to her, how she was frightened and hurried home, and how she saw the emergency lights in the Pendleton Place Apartment parking lot approximately ten minutes after they reached her apartment. She testified she had never seen the men before that night, had not wanted to become involved in the case, and had not talked to any lawyers or investigators about it until 2015, when she started receiving subpoenas. She indicated that Mr. Edwards had not wanted to be involved either, testifying that he "got a warrant" because he had not wanted to go to the preliminary hearing. She said she accompanied him when he went to the preliminary hearing and was present in the courtroom when he identified the ...

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