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State v. Reed

Court of Criminal Appeals of Tennessee, Knoxville

May 11, 2017


          Assigned on Briefs July 26, 2016

         Appeal from the Criminal Court for Hamilton County Nos. 280904, 281407 Rebecca J. Stern, Judge.

         Defendant, Randall Kenneth Reed, was convicted by a Hamilton County Jury of four counts of the fraudulent use of a debit card, first degree premeditated murder, first degree felony murder, especially aggravated robbery, and theft of property less than $500.00. The trial court merged the premeditated murder conviction with the felony murder conviction and imposed a life sentence to be served concurrently with 25 years for especially aggravated robbery and 11 months, 29 days each for theft of property less than $500 and four counts of the fraudulent use of a debit card. The trial court further ordered the sentence to be served consecutively to a probation violation in an unrelated case. On appeal, Defendant argues as follows: (1) that the trial court erred by allowing Milo Geiger to testify that he agreed to take a lie detector test and that Defendant refused to take one; (2) that the trial court improperly admitted photographs of the victim; (3) that the trial court erred in failing to instruct the jury on the lesser-included offense of voluntary manslaughter; and (4) that the evidence was insufficient to support his convictions for first degree premeditated murder, first degree felony murder, and especially aggravated robbery. After a thorough review of the record, we reverse the judgments of the trial court and remand for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and Remanded

          Donna Miller, Chattanooga, Tennessee (on appeal); and Christina Mincy and Gerald Webb, Chattanooga, Tennessee (at trial) for the appellant, Randall Kenneth Reed.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William Cox, District Attorney General; and M. Neal Pinkston, Assistant District Attorney 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.



         I. Background

         James Donald Hutcherson testified that he was employed by Henderson, Hutcherson, and McCullough, a CPA firm located in Chattanooga. The victim, Jane Stokes, was the firm's head accountant. Mr. Hutcherson testified that the victim never missed work and always arrived early. He said that she was normally the first person at the office in the morning. On June 15, 2011, the victim did not arrive at work, although her calendar indicated that she was supposed to be there that day. Mr. Hutcherson testified that he asked another employee, Chris Davis, who was one of the victim's close friends, to call the victim's next door neighbor, Cynthia Price, to check on the victim.

         Mrs. Price testified that she and the victim became friends in 1995 when Mrs. Price moved next door to her. She was familiar with the victim's "morning ritual." Mrs. Price testified that she and the victim normally left for work "within minutes of each other" and "anywhere between 6:30, and quarter to 7." She normally knew if the victim was staying home for some reason because "that was an agreement between us since her husband died." Mrs. Price testified that she knew when the victim was up in the mornings because the light was normally on in her bedroom, and the shade was "mostly" down.

         Mrs. Price testified that on the morning of June 15, 2011, she left for work at approximately 6:35 to 6:40 a.m. She noticed that the light was on in the victim's bedroom and in the kitchen, and the bedroom shade was down. Mrs. Price testified that she later received a phone call from someone at the CPA firm concerning the victim's whereabouts. They knew that Mrs. Price had a key to the victim's house. Mrs. Price then called her daughter, who was at home, and asked her to go next door to the house and check on the victim.

         Patricia Steinway, Mrs. Price's daughter, testified that she woke up on the morning of June 15 at approximately 8:00 to 8:30 a.m. She later received a call from Mrs. Price who asked her to look out the door and see if the victim's car was still parked in the driveway. Ms. Steinway saw the victim's car. She then got the key to the victim's house and walked next door. She attempted to open the side door to the house but the screen door was locked, and the key would not open it. Ms. Steinway called out to the victim but did not get a response. She next walked to the back of the house and tried to open the doors to the utility room and the sliding glass doors that led to the dining room and kitchen, but they were also locked, and the key would not open them. At that point Mrs. Price called her, and Ms. Steinway asked her if the key would fit the front door. As Ms. Steinway attempted to use the key to open the front door, she noticed that the door was already unlocked, which was extremely unusual. While still on the phone with Mrs. Price, Ms. Steinway walked through the house to the victim's bedroom where she saw the victim lying on the floor. She then called 911.

         Officer Julius Johnson of the East Ridge Police Department testified that he was dispatched to the victim's residence located in the City of East Ridge. When he arrived, EMS personnel were already on the scene, and the victim was hooked up to an EKG monitor, but she was already deceased. Officer Johnson testified that the victim was lying on her back on the floor with her hands behind her back. Officer Johnson testified that there was plastic cellophane wrapped around the victim's head, and her hands were bound with black nylon zip ties that had been fashioned into handcuffs. These items were eventually cut from the victim's head and wrists, and Officer Johnson transported them, along with a box of cellophane wrap found in the victim's kitchen and a black nylon zip tie found on the victim's dresser, to the Tennessee Bureau of Investigation (TBI) Crime Lab.

         Officer Johnson testified that the victim's purse was sitting on her bed. Her wallet was lying beside the purse, and "a couple of cards were laying beside the wallet as well." The contents of the purse were scattered on the bed. Officer Johnson noted that the television was on in the bedroom along with a lighted make-up mirror. There were also some hair rollers lying on the floor. Officer Johnson testified that the doors under the kitchen sink were open, and the pantry door was also open in the kitchen. Officer Johnson took photographs of the scene and made a sketch of the victim's bedroom.

         Detective Daniel Stephenson of the East Ridge Police Department testified that he assisted Detective Gwen Cribbs in investigating the victim's murder. He arrived at the scene and walked through the residence. Detective Stephenson later went to search the residence which belonged to Defendant's mother and father. Detective Stephenson testified that the search was focused on the garage area of the home. He said that "[t]here was a hallway and then an adjoining bedroom with that hallway that connected to the garage." Detective Stephenson learned that the bedroom belonged to Defendant. There was a white bucket in the garage containing a package of zip ties. Detective Stephenson photographed and collected the zip ties, and they were sent to the TBI. Concerning items found in the garage, Detective Stephenson further testified:

This is a frame of a bicycle that is in the garage. And the handlebar attached to the frame. And the handles. Hanging from those handles are zip ties, black zip ties, that are connected together and then they're formed into like a makeshift handcuff design. I say that because we do similar things with the SWAT team as far as if we need makeshift handcuffs that's what . . .

         There was also a zip tie "in a tear-drop shape" found in a tool box, and there was a zip tie on the garage floor. There was also a bag of zip ties on top of the tool box. The bag was labeled as a twenty-count bag, and there were fourteen zip ties left in the bag. Detective Stephenson collected the zip ties from the bicycle, tool box, and floor, and they were sent to the TBI crime lab. He said that there were three different types of zip ties that were collected.

         Detective Stephenson testified that he found two gloves, boots, shoes, and "a winter ski mask type toboggan" in Defendant's bedroom. There was also a plastic Walmart bag on the couch and five additional zip ties lying underneath the bag. The zip ties and gloves were collected and sent to the TBI crime lab. Detective Stephenson testified that he also found a red hat and a red bandana "in the cavity of the nightstand."

         Detective Stephenson testified that he was present at the medical examiner's office during the victim's autopsy. He said that there was a zip tie on each of her wrists and "a middle connector." The zip ties were cut off the victim's wrists by the medical examiner and given to Detective Stephenson. Detective Stephenson noted that the zip ties appeared to be the same size as those found on the bicycle at the residence where Defendant lived.

         Chris Moffat testified that he owned Moffat Construction Company, and he had worked on the victim's house a number of times over the years. He said, "I actually did an addition on it probably 20 years ago and then did a lot of work on it after the April tornadoes in 2011." Mr. Moffat testified that the victim worked for his wife at the accounting firm, and he knew the victim very well.

         Mr. Moffat testified that Defendant began working for him in April of 2011. Defendant worked at the victim's house for five to six days helping to rebuild a fence. He also cleaned up some of her yard. Mr. Moffat testified that Defendant "left on a Wednesday and never returned to work." He wrote Defendant his last paycheck on Friday, May 27, 2011. Mr. Moffat testified that after the victim's death, he saw a photograph in the Chattanoogan, an on-line newspaper, from a bank where the victim's debit card had been used. He immediately recognized Defendant as the person in the photograph, and he called police.

         Sandy Kelly is the vice president of investigations at First Bank. She testified that the victim had an account with First Bank that had been opened at the downtown Chattanooga branch. Ms. Kelly testified that on June 15, 2011, several ATM transactions were made on the victim's account beginning at approximately 6:52 a.m. Some of the transactions were successful, and some were not. The first successful ATM withdrawal was for $300 with a $3 service charge. A second withdrawal of $200 was made, and there was a third withdrawal for $100. There were also some unsuccessful attempts to withdraw money. Ms. Kelly noted that the withdrawals were made at banks other than First Bank and would have required the victim's debit card and a PIN number.

         Mitch Webber is the regional security manager for SunTrust Bank in Chattanooga. His primary duty is fraud investigation. Police provided him with a date and a debit card number and asked him to search for transactions involving the card. Mr. Webber discovered that the card had been used at two SunTrust Bank locations. He identified four photographs of a walk-up transaction at a branch located on Brainerd Road. The withdrawal was made at 6:51:49 a.m. on June 15, 2011, in the amount of $200.00 with a $2.95 fee. Mr. Webber testified that an attempt at a second withdrawal was made on June 16, 2011, at the SunTrust branch located on Lee Highway. He again identified photographs of the attempted transaction beginning at 7:14:29 a.m.

         Amos Frazier is employed by Regions Bank in corporate security. He was asked by police on June 15, 2011, to search for a debit card number that had been used at Regions Bank. Mr. Frazier identified a series of photographs of an ATM transaction that occurred on June 15, 2011, at 2:24 p.m. at the Regions Bank branch located on Lee Highway in Chattanooga. The first transaction was for $40 with a $3 fee, and the second transaction was for $100 with a $3 fee. Mr. Frazier testified that an automobile was also captured in the background of the photographs. When asked which would be correct if the $40 withdrawal contradicted the victim's bank statements, Mr. Frazier replied, "I mean, as far as our records [they] would be correct on our end. Now, what was on the other bank, I would have no idea."

         Travis Wright is employed by First Tennessee Bank in corporate security. In June of 2011, he was asked by the East Ridge Police Department to search bank records for possible photographs and debit card transactions in the victim's name. Mr. Wright provided police with a series of six photographs of a transaction involving the victim's debit card that took place on East 23rd Street between 7:24 a.m. and 7:26 a.m. on June 15, 2011. The photographs depicted an individual with a white shirt on and a hat, and there was a white vehicle and another white "Suburban-type" vehicle shown in the background.

         Officer Josh Creel of the East Ridge Police Department testified that he assisted in the investigation of the victim's murder. On June 16, 2011, he received information from Detective Cribbs concerning a telephone number, and Officer Creel requested "to ping that number to find out what tower it was hitting on." He said that the number "was hitting in the area of Lee Highway and Shallowford Road." Officer Creel also had information from Mr. Moffat and motor vehicle records concerning a white Chevrolet Cavalier registered to Defendant. Officer Creel began searching around hotels in the area of Lee Highway and Shallowford Road. He found Defendant's car parked at the Travel Lodge on Shallowford Road. Officer Creel went inside the hotel and checked the registry. He learned that Defendant had rented Room 212 at the Travel Lodge on June 15, 2011, and checked in at approximately 10:00 a.m. The registration records indicated that Defendant paid for the hotel room in cash. Officer Creel was aware that Defendant lived at a residence on Stump Drive in East Ridge. Officer Creel called his supervisor who instructed him to "stand by with the vehicle and keep an eye on the room to make sure no one came or left." He also looked through the windows of the vehicle.

         Detective Johnson arrived on the scene approximately one and one-half hours later with a search warrant. Officer Creel and Detective Johnson searched Defendant's car and collected a set of rubber dipped gloves, two zip ties, a screw driver, and a roll of duct tape. Officer Creel and Detective Johnson also searched Room 212 of the Travel Lodge. They found a "white T-shirt with a red texture to it. It had been found in a laundry basket sitting beside the bed in room 212." The shirt appeared to be the same one worn by the suspect in the photograph of the walk-up ATM transaction on Brainerd Road. Defendant was not present when the room and car were searched because he was at the police department. Officer Creel was aware that the zip ties found in Defendant's car were the same size, type, and color as those found on the victim's wrists.

         Special Agent Mark Dunlap is a forensic scientist assigned to the serology DNA unit at the TBI Crime Lab in Nashville. He tested the middle connector of the handcuffs fashioned out of zip ties that were around the victim's wrists. The testing indicated the presence of human DNA. The partial DNA profile was consistent with a mixture of genetic material from the victim and a "male minor contributor." Defendant could not be excluded as a potential contributor of the DNA. Special Agent Dunlap also tested the cellophane wrap taken from the victim's head and face. A reddish brown stain on the wrap was swabbed and contained the victim's DNA. There was also an area of the wrap that was "wadded up." Special Agent Dunlap tested the area for "touch DNA from the person who handled that in that area." The DNA in that area of the wrap was "consistent with a mixture of genetic material from the victim and a male minor contributor." Defendant could not be excluded as the minor contributor. Special Agent Dunlap also noticed some discoloration on the cellophane wrap. He said, "It was area that was sort of flesh tone color consistent with what you would expect makeup to look like."

         Special Agent Dunlap examined the shirt collected from Defendant's hotel room. A discolored area on the front left sleeve of the shirt revealed the presence of a limited amount of human DNA. Special Agent Dunlap testified that the discolored area on the left sleeve of the shirt was "very similar in appearance to the discolored substance on that cellophane." He obtained a partial DNA profile which was consistent with a mixture of genetic material. The "major contributor to that DNA profile is consistent with [the victim]." Special Agent Dunlap noted that "all of the ST markers from the male minor contributor were inconclusive due to insufficient or degraded DNA."

         Agent Miranda Gaddis is a forensic scientist assigned to the "microanalysis for trace evidence unit" of the TBI. She examined all of the zip ties collected in the present case. Agent Gaddis testified that the zip ties collected from the victim's wrists, the victim's dresser, a package of zip ties from Defendant's garage, the couch in Defendant's bedroom, the bicycle, and Defendant's car were all eight-inch zip ties with "six indentions on all of the zip ties." She testified that all of the zip ties bore the same manufacturer's mark, and they all had a number followed ...

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