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State v. Long

Court of Criminal Appeals of Tennessee, Knoxville

May 11, 2017


          Session July 26, 2016

         Appeal from the Circuit Court for Blount County No. C18506 David Reed Duggan, Judge.

         Defendant, Jeffrey Scott Long, was indicted by the Blount County Grand Jury for first degree murder, felony murder during the perpetration of a burglary, aggravated burglary, and aggravated assault. Following a jury trial, Defendant was convicted as charged, and the trial court merged the two murder convictions. The trial court imposed a life sentence for the murder conviction and concurrent six-year sentences for the remaining two convictions. In this appeal as of right, Defendant raises the following issues for our review: 1) Defendant's statement to police should have been suppressed because he made an unequivocal request for counsel, and he did not knowingly and voluntarily waive his Miranda rights; 2) the trial court erred by admitting into evidence an order of protection granted to the victim against Defendant; 3) the trial court erred by admitting into evidence autopsy photos; 4) the trial court should have suppressed evidence seized as a result of a warrantless search of Defendant's apartment; 5) the trial court erred by allowing expert testimony outside the scope of the forensic pathologist's expertise; 6) the trial court erred by denying Defendant's request for a special jury instruction; 7) the trial court erred by allowing evidence that was not properly authenticated; 8) Defendant was denied a fair trial because a portion of trial testimony was not transcribed; 9) the evidence was insufficient to sustain Defendant's convictions; 10) the State exceeded the scope of its closing argument on rebuttal; and 11) the cumulative effect of the errors requires reversal of Defendant's convictions. Having carefully reviewed the entire record and briefs of the parties, we conclude that the there is no error. Accordingly, we affirm Defendant's convictions.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          George R. Maifair, Nashville, Tennessee, for the appellant, Jeffrey Scott Long.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Betsy Smith and Shari Tayloe, Assistant District Attorneys General, for the appellee, State of Tennessee.

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



         Pretrial motions

         July 15, 2010 hearing on motion to suppress Defendant's statement

         Detective Kris Sanders, of the Alcoa Police Department, was the lead investigator in the September 10, 2009 death of the victim, Janice Long. On September 12, 2009, Detective Sanders interviewed Defendant at the Alcoa Police Department. Defendant's handcuffs were removed, and he was given a soda to drink. A video recording was made of the interview. Detective Sanders reviewed a Miranda rights waiver form with Defendant, and Defendant signed it. Before signing the waiver, Defendant stated, "I am gonna have to get an attorney, but I mean I was gonna talk to y'all without one for a little bit here. So, I still have to sign this even though I'm gonna get an attorney?" In response, Detective Sanders stated, "If you are requesting an attorney then I have to stop right now, and that's what you're doing." Defendant stated, Well I'm gonna have to have an attorney in court." Detective Susan Burcham, who was also in the interview room, stated, "Well, this isn't regarding court . . . ." Defendant interrupted, stating, "I know. Y'all are wanting a statement on what happened. I know exactly what y'all are wanting. Y'all want to know my side of the story cause there's not a story until I tell y'all something." Defendant continued, "What I was reading right here, I mean, it says up here that I can stop answering questions at any time. . . . So, I can still sign this and if I want to answer a question I can, and if I don't, I don't have to. I mean, I basically wanted to tell y'all what happened. I mean, I don't mind doing that."

         Detective Sanders then gave the following explanation:

Let me explain it to you this way. You have two rights, ok. One of those rights is the right to remain silent, not to tell us anything, ok. You also have the right to have an attorney present, ok. Those two rights can be invoked at any time during this process. What you're doing by signing this waiver is you are waiving those rights, and you're agreeing to talk to us. But what you've got to remember is if we ask you a question you don't want to answer, you don't have to answer, ok. If we start getting in our discussion to where you are feeling uncomfortable, you can stop this interview at any time, ok. You can request an attorney at any time. Now once you request the attorney or tell us you don't want to answer a question, then we are done. You can invoke your rights at any time.

         Defendant responded, "From what I understand they're not gonna give me an attorney until I go to court anyway." Detective Sanders responded, "That's true." Detective Burcham added, "Right, that doesn't mean [an attorney] is gonna appear, here now." Defendant then stated, "I don't mind signing [the waiver]. I mean, I wanna talk to y'all a little bit anyway. I been [sic] wanting to." Detective Sanders stated,

Before you start, I want to make sure you understand that you can at any point during this invoke your rights and we will stop, ok. So you understood everything I read to you? And you understand that you have the power to say, I'm done talking, I would like to get an attorney? And you understand that? Is there any question you have about that?

         Defendant indicated that he understood and had no questions.

         The trial court denied Defendant's motion and concluded,

There is no question, absolutely none, that [Defendant] was fully advised of his right to have an attorney for advice before we ask you any questions and to have an attorney with you during questioning. That was clearly read to him. We not only heard it, it's in the Miranda form that we have here today. I'll come back to when it was signed here in a moment. So, there is no question that he was told. Absolutely no question that he was told he had the right to have the attorney - to talk to an attorney before he was asked any questions and to have the attorney present during questioning.
The only thing that even gives me pause in this case is because at one point [Defendant] said, from what I understand they're not going to give me an attorney until I go to court anyway and Detective Sanders said that's true. Obviously the Defendant could say, well, I was given bad advice at that point. And in essence that's what you are. I was given bad advice, because that says I can't have a lawyer until I get to court. If that were all that was said I would rule in the Defendant's favor. If that were all that was said and then the questioning proceeded, I would rule in the Defendant's favor. But that's not all that was said. It did not stop there. . . . I counted nine times where the Detective said to the effect of you can invoke your rights any time.

         The trial court concluded, "looking at the totality of the circumstances and what was said after that, I think it was made very clear to [Defendant] that he did not have to talk to these detectives. He could have stopped at any time and had an attorney appointed.

         May 16, 2012, hearing regarding warrantless search of Defendant's apartment and admissibility of autopsy photographs and crime scene video

         Rusty Aycocke, Assistant Commander of the Blount County Sheriff's Office SWAT team, testified that he responded to the Shamrock Motel on September 11, 2009, at approximately 3:00 a.m. The SWAT team began to evacuate apartments that were not "the target location." As the SWAT team waited outside the apartment, Defendant opened the door "on his own free will" and without request. Deputy Aycocke saw Defendant sitting in a chair just inside the doorway. Defendant appeared to be covered in blood and had a "serious wound on his left arm." Defendant was "in distress" and in need of medical attention. Deputy Aycocke and others entered the apartment "to render aid." The police found a framed photograph of the victim and an apparent suicide note in Defendant's lap.

         Detective Sanders testified that he responded to a homicide call at Cerritos Way apartments. The maintenance man for the apartments, James Ezell, had reported that he saw Defendant walking towards the apartments. Mr. Ezell knew that the victim had obtained an order of protection against Defendant. He contacted the apartment owner, who then requested a welfare check on the victim. Responding officers entered the victim's apartment using a key provided by Mr. Ezell's girlfriend. A table had been pushed against the door. Officers found the deceased victim inside the apartment. Detective Sanders testified that the victim was lying on her back between the refrigerator and the stove. Detective Sanders testified that "[a] lot of blood spatter was in the area where the victim's body was." It was "obvious to [him] that a struggle had taken place." The window in the back bedroom was open, and there were "reddish-brown stains" on the window, and it appeared as though "someone had left in a hurry through that window." Detective Sanders observed several items in disarray, and the refrigerator appeared to have been pushed out of place.

         The police located Defendant's vehicle in the parking lot of the Shamrock Motel. Police entered Defendant's room at approximately 3:48 a.m. Defendant was transported to Blount Memorial Hospital and admitted at 4:07 a.m. Defendant was discharged from the hospital at 4:02 p.m. and transported to the local jail. Detective Sanders testified that Defendant was arrested without a warrant because, "I knew a crime had been committed and . . . I had reasonable cause to believe that [Defendant] committed that crime[.]"

         On September 11, 2009, Detective Sanders executed a search warrant for Defendant's apartment. On the following day, he executed a search warrant for Defendant's van. Detective Sanders began his interview with Defendant at approximately 7:19 p.m. on September 12, 2009. Defendant was 47-years-old at the time of the interview. Detective Sanders testified that the interview lasted approximately four hours. Defendant did not appear to be intoxicated. Defendant was transported back to the jail from the police department at approximately 11:34 p.m. Detective Sanders testified that Defendant told him at the beginning of the interview "that he thought we would have come to get him sooner, that he was wanting to talk to us."

         After the interview, Detective Sanders prepared warrants charging Defendant with homicide and burglary. He took the warrants to the magistrate at approximately 2:00 a.m. on September 13, 2009. Defendant appeared before the magistrate at approximately 3:15 a.m., approximately 48 hours after his arrest.

         On redirect examination, Detective Sanders testified that when he entered the victim's apartment, his "immediate attention and focus was to the interior of the apartment, where the victim's body was and everything inside that scene." He testified that he "walked to the rear of the apartment, [but he] did not search that area." He testified that he "walked back there to visually observe what was there."

         Detective David Henderson, of the Blount County Sheriff's Office, testified that when police entered Defendant's apartment, he saw "a major amount of blood around the apartment, on the Defendant. [He] [h]ad a major laceration to his arm and, plus, very groggy, out of it." Detective Henderson testified that he did not search the apartment, and the only purpose for entering the apartment was "[t]o take pictures of - the investigation of attempted suicide, of blood. Investigation process."

         The trial court denied Defendant's motion to suppress the warrantless search of Defendant's apartment. The trial court accredited the testimony of "both officers" Aycocke and Sanders. The trial court found that Defendant" opened the door of his own free will, . . . [and] it was apparent that he was in distress, that there was blood and a serious wound, that he needed medical attention[.]" The court concluded as follows:

[T]here were clearly exigent circumstances in the serious wound to the Defendant, which justified the officers' entry for the limited purpose of securing the scene and rendering aid to the Defendant, and securing and making the scene safe for the emergency medical personnel, and preserving photographic evidence of the attempted suicide, such exigent circumstances and indeed even a duty to enter and render aid.

         Dr. Darinka Mileusnic-Polchan, a forensic pathologist, performed an autopsy of the victim on September 11, 2009. She determined that the cause of death was "isolated multiple stab and incised wounds, which is in the category of sharp force trauma." She also listed "blunt force injuries and strangulation" as contributing causes. Dr. Mileusnic-Polchan noted "fine petechiae" in the eyes and lips, bruising of the neck muscles, and a fracture of the hyoid bone, which all indicate strangulation. She noted facial bruises and lacerations on the victim's head, which indicate blunt force trauma. Dr. Mileusnic-Polchan testified that the shape and pattern of the victim's injuries were consistent with a hammer found beside the victim's body. She photographed blunt and sharp force injuries to the victim's head that were consistent with the hammer and claw end of the hammer. She described the blunt force injuries on the victim's hands as "defense injuries." Dr. Mileusnic-Polchan believed that the photographs of the victim's injuries would be helpful to a jury's understanding of her testimony. She testified:

I would say yes, because it's a very complex case. It has a combination of different types of injuries. And in any forensic pathology involvement, the photographs are evidence and the - of course, for the jury we have to kind of keep a good balance between what's acceptable to them and what is not. But as a pathologist, I would have a hard time describing the different types of injuries, comparing the pattern with the weapon just by describing them. And I don't think just my description and talking would give them an accurate photograph - or mental image, so to speak, of the complexity of the case.

         The trial court weighed the probative value against the prejudicial effect of each autopsy photograph and concluded that certain photographs would be allowed into evidence because they would assist the jury in understanding testimony about the victim's injuries. Specifically, the trial court allowed the following photos: 1) a photo of the victim's eye, which showed petechiae as evidence of strangulation; 2) a photo of the extracted neck organs to show hemorrhaging, bruising, and fracturing in those areas; 3) a photo of the face and neck to show the various traumas to those areas; 4) photos of the left side of the victim's face and the victim's forehead to show the pattern and shape of the injuries; 5) a photo of a large laceration on the right side of the victim's skull and two close-up photographs of the back of the victim's head as evidence of multiple blows and to show patterned injury; 6) photos of the defensive wounds on the victim's right and left hands; 7) a photo of an incised wound on the right side of the victim's neck; 8) a photo of the victim's back and head to show the variety of trauma to those areas; 9) a photo of the body as it was found at the crime scene to show evidence of a struggle; and 10) a closer photo of the body at the crime scene to show blood flow and to aid the jury in understanding testimony about the victim's movements. The court ordered the State to crop or redact facial and vaginal portions of the photo showing the defensive injuries on the victim's right hand. The court excluded certain photos that the court found were "gruesome" or unnecessary to explain testimony, and of which the court found the prejudicial effect outweighed the probative value. Finally, the court allowed a video of the crime scene to show the size of the victim's apartment, but the court ordered the State to redact any portions of the video that show the victim's face and body close-up.

         June 12, 2012 hearing regarding admissibility of order of protection

         Dorothy McClure, Chief Deputy Clerk in Blount County, testified that she typed an order of protection for the victim in 2009. She testified that the victim was "[e]xcited, nervous, [and] scared." She testified that the victim gave her a handwritten statement that Ms. McClure used to type the order of protection. The victim wrote at the end of her statement, "Help me!!!"

         The trial court made the following findings and conclusions:

With respect to the 2009 order of protection, the Court notes first, as the State has argued, that the order of protection itself - and then I'm going to come back to, in a few minutes, the statement within the order of protection - is relevant and that they need to use it to carry their burden of proof because there is a fourth count in this criminal proceeding of aggravated assault, alleging that the Defendant committed bodily injury after a prior restraint by, in this case, an order of protection. So, in part, the order of protection is necessary just for the State to be able to carry its burden of proof with respect to Count 4.
I also think it's relevant with respect to Count 3, aggravated burglary. Because I think the fact that there's an order of protection saying that there was to be no contact is relevant to the issue of whether the Defendant entered the habitation without consent. So, I think it's relevant also to the third count.
Now, in addition, the Court finds that at issue in this first-degree murder case - and here we have alternative theories - first[-]degree murder and first-degree murder based upon felony murder. Motive is at issue; intent is at issue; premeditation is at issue. And I find that the order of protection is relevant to the relationship between the parties at the time of this alleged crime. I think it's also relevant to motive. I think it's relative to intent. I think it's relevant to the issue of premeditation. And I think it's relevant to the complete picture of the events that transpired.
So, I think based upon that, that there are material issues that exist other than conduct conforming with a character trait for the use of the order of protection. And I find that the order of protection is clear and convincing evidence related to those various issues.
And I also find for all of the reasons I've stated, including the fact just very simply that any prejudicial effect of the proof is outweighed by the probative value of the evidence and is necessary to support the State's burden of proof.

         The trial court ordered the redaction of certain statements in the order of protection. However, the trial court found that the probative value of the statements contained in the order of protection outweighed their prejudicial effect.

         August 16, 2012, hearing regarding admissibility of evidence pursuant to inevitable discovery doctrine

         Teeann Guy, the rental agent for Defendant's apartment, testified that she reviewed a rental application with Defendant before his tenancy. She testified that rentals at the Shamrock Motel were "by the week" and subject to a two-day eviction procedure. Defendant completed a rental application on August 28, 2009. Ms. Guy testified that she spoke to Defendant on the night of the incident. Defendant told Ms. Guy that he did not have his rental payment, but that he would pay on the following morning. Ms. Guy never received payment. Defendant was evicted after his arrest. Ms. Guy was responsible for cleaning apartments after they were vacated. She testified that she found a knife with blood on it under the mattress in Defendant's former apartment, and she called Detective Sanders. She called Detective Sanders again when she found drug paraphernalia in Defendant's former apartment.

         Defendant testified that he did not invite police into his apartment at the Shamrock Motel. Defendant testified that he had allowed a person named Jessica Dunbar to borrow his van before the incident. He testified that he did not give permission to police to search his van.

         The trial court denied Defendant's motion to suppress items recovered from his apartment. Although the trial court found that the search warrants obtained in this case were invalid, the trial court stated, "[t]here is not a doubt in my mind that the evidence that was seized at the apartment would have been discovered based upon the evidentiary hearing that we've conducted here today and what I've heard." The court found Ms. Guy to be "a very credible witness." The court found,

I think clearly had she found these handwritten notes and a picture of the victim taken from a couch in the apartment, had she found a bag containing clothing with what appeared to be blood on it, a picture of the victim on the bed, a black purse in the closet, a knife on the dresser, I don't think there's any question that she would have called the police and that they would have found these items pursuant to the very fact that she did call the police with respect to other items.

         Facts presented at trial

         At trial, a certified copy of the August 10, 2009 order of protection obtained by the victim against Defendant was admitted into evidence through the testimony of Chief Deputy Clerk Dorothy McClure. The petition for order of protection stated in part: "In 2009 [Defendant] hit [the victim] and toled [sic] her he would kill her and put her somewhere no one would find her. [Defendant] told her not be take an order of protection out on him, or she'd be sorry. Help me!!!" The victim was granted an ex parte order of protection prohibiting Defendant from contacting the victim and inflicting physical injury on her.

         Ms. McClure testified that, while at the clerk's office, the victim "was sitting against the wall, hiding." She testified that the victim "was afraid that somebody would come by and see her in there." Ms. McClure described the victim as "scared, nervous, [and] anxious."

         Patricia Lee Smith Myers worked with the victim at Rockford Manufacturing. She testified that when the victim spoke to her about Defendant, "[s]he'd be shaking and about in tears and she was scared. You could tell she was scared."

         Donette Morgan owned the apartment complex where the victim and Defendant rented an apartment in "Building Two." Ms. Morgan evicted them for failing to pay rent. She subsequently allowed the victim to rent a different apartment in "Building One." Ms. Morgan testified that the victim did not want Defendant to know that she was living there, and she "acted nervous and worried." Ms. Morgan was aware that the victim had an order of protection against Defendant, and she instructed her employees to call 911 if they saw Defendant on the property.

         James Eisele was the maintenance man at the apartment complex where the victim lived. On the night of September 10, 2009, Mr. Eisele saw Defendant at the complex. Defendant was walking towards the grass. Mr. Eisele called Ms. Morgan and told her that he had seen Defendant because Mr. Eisele knew that Defendant "wasn't supposed to be there." Mr. Eisele testified that he saw Defendant's van parked at Rose's Piano Shop, a short distance from the entrance to the apartment complex. A security video, showing images of Defendant at the apartment complex that night, was admitted into evidence. Defendant was carrying "a bag of some kind in his hand."

         Steven Anderson, a patrol sergeant with the Alcoa Police Department, responded to a call for a "welfare check" at the victim's apartment at 10:20 p.m. on September 10, 2009. Officer Anderson knocked on the victim's door, and there was no response. He obtained a key to the victim's apartment from Mr. Eisele's girlfriend, Elizabeth Casper. The apartment door was obstructed by a table, and "[they] had to force the kitchen table back to get the door open." Officer Anderson found the victim's body on the kitchen floor, and there was "[a] lot of blood" around the victim. In the back bedroom, Officer Anderson observed an open window and blood on the windowsill and window blinds. Officer Anderson "had to step over [the victim's body] to finish clearing [the apartment]." Officer Anderson found a hammer on the floor in front of the refrigerator, and he moved it to the couch because he "was concerned about [paramedics] coming in [and] stepping on the hammer." Officer Anderson testified, "I figured it was going to be a piece of evidence that was used in the crime." Officer Anderson also observed a flashlight on the floor beside the victim's foot. Officer Anderson testified that the claw end of the hammer appeared to have blood on it, and the injuries to the victim's face appeared to have been caused by a sharp object. Police also found a chisel outside the bedroom window of the victim's apartment.

         Lieutenant Paul Gilbert, of the Alcoa Police Department, was also dispatched to the area of the victim's apartment. He responded to the parking lot at Rose's Piano Shop, where Defendant's van was parked. The vehicle was registered to the victim. Lieutenant Gilbert then responded to the victim's apartment and made entry with Officer Anderson. Officer Hank Morris also assisted in making entry into the victim's apartment. A video of the crime scene was admitted into evidence through Officer Morris's testimony.

         Deputy Clyde Ingle, of the Blount County Sheriff's Office, arrived at the Shamrock Motel in response to a "BOLO" for Defendant's van at approximately 1:30 a.m. on September 11, 2009. When Deputy Ingle drove up, he saw "a male subject[, ]" who "took off running" into an apartment. Deputy Ingle found Defendant's van parked beside a dumpster at the apartment complex. He confirmed that the vehicle was the same vehicle in the BOLO. Deputy Ingle secured the premises until the SWAT team arrived at the scene.

         Rusty Aycocke, the Assistant Commander of the Blount County SWAT team, arrived at the Shamrock Motel at 2:40 a.m. on September 11, 2009. The SWAT team secured the perimeter of the scene and evacuated the apartments in the same building as Defendant's apartment building. While the SWAT team waited outside Defendant's apartment, "[t]he door to the apartment . . . opened up wide and [Defendant] himself opened the door." After the door opened, Aycocke saw Defendant sitting in a recliner chair inside the doorway, and he had blood on his arm, shirt, and pants. Aycocke testified that "it was clear that [Defendant] . . . was in distress and in need of medical attention." The SWAT team entered the apartment "to render aid to him and to check the apartment to make sure the apartment was safe for EMS to come and give care to [Defendant]."

         SWAT team member Matthew Gilmore testified that Defendant "had a severe wound to his left harm, he had blood all over." Police found a photograph of the victim and a handwritten note in Defendant's lap. The note read, "I loved Jan I could not live without her I'm sorry I did not deserve the order of protection." The second page of the note read, "I took 25 hydros to overdose. We both can see the end from here. She will go to heaven, I will go to hell. I love my mom. You should not let [sic] the order of protection when I did nothing wrong. It's not fair to keep someone away." Police later collected the following items from Defendant's apartment: a ...

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