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State v. Goodwin

Court of Criminal Appeals of Tennessee, Jackson

June 7, 2017

STATE OF TENNESSEE
v.
ALEX GOODWIN AND JOEY LEE aka JOEYCURRIE

          Assigned on Briefs: August 2, 2016

         Appeal from the Criminal Court for Shelby County No. 1102877 W. Mark Ward, Judge.

         In this consolidated appeal as of right, Defendants Alex Goodwin and Joey Lee challenge their convictions of aggravated robbery, a Class B felony, see T.C.A. § 39-13-402, for which they received eleven and ten years' imprisonment, respectively. Both Defendants challenge the sufficiency of the evidence supporting their convictions. Defendant Goodwin argues that the trial court erred in (1) denying his motion to suppress text messages obtained from Defendant Goodwin's cell phone and (2) refusing to instruct the jury on facilitation as a lesser included offense of aggravated robbery. Defendant Lee argues that the trial court erred in (1) admitting into evidence a BB gun located remotely in time and place to the offense without any testimony to connect the weapon to the offense; (2) allowing an expert witness to interpret the meaning of slang terminology used by the co-defendant in the text messages; and (3) the cumulative effect of the errors committed during trial denied him a fair trial. Upon our review, we affirm the judgments of the trial court.

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

          C. Anne Tipton, Memphis, Tennessee, for the Defendant-Appellant, Joey Lee; Blake Ballin (at trial), Benjamin Catz (at trial), and Joseph A. McClusky (on appeal), Memphis, Tennessee for the Defendant-Appellant, Alex Goodwin.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Omar Z. Malik and Gregory Gilbert, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          CAMILLE R. McMULLEN, JUDGE.

         The victim, Latasha Jackson, had been in "a casual relationship" with Defendant Goodwin on Facebook for approximately a month before the instant offense. The first time she met Defendant Goodwin in person was the day after she told him she had cashed her income tax check. She spent that day running various errands with Defendant Goodwin, who was texting someone on his cell phone the entire time he was with the victim. Defendant Goodwin ultimately directed the victim to drive to a certain location. Once there, two men, one armed with a gun and later identified as Defendant Lee, approached the victim and demanded money. The men ultimately ran off, taking the victim's money, purse, jacket, and cell phone. Based on "suspicious statements" provided by Defendant Goodwin to the police, he was developed as a suspect in the robbery and charged with the instant offense. Defendant Lee was indicted following review of his cell phone communications with Defendant Goodwin on the day of the offense and the discovery of the victim's cell phone in his bedroom.

         Motion to Suppress Hearing.

         Defendant Goodwin filed a motion to suppress arguing that his initial detention violated the state and federal constitutions because it was not supported by probable cause. His motion also alleged that "his consent to search [his cell phone] was not voluntarily given" because it was given only after he was threatened with being placed "on a forty-eight hour hold."

         On February 19, 2014, the trial court conducted a hearing on Defendant Goodwin's motion to suppress. Sergeant Eric Kelly of the Memphis Police Department testified that he investigated the instant aggravated robbery on February 11, 2011, and he identified Defendant Goodwin in court. He responded to 3395 Wild Rye Lane, in the Village Green Apartments, in Memphis on the night of the offense. When he arrived on the scene, the victim was in her car with her children and Defendant Goodwin was seated in the back of a uniform patrol car. Sergeant Kelly explained that Defendant Goodwin was seated there because he had given other officers a false name. After speaking with the victim, Sergeant Kelly spoke with Defendant Goodwin, who advised him that he gave the officers a "bad name" because he thought he had a warrant. He then told Sergeant Kelly that "he was ready to tell the truth about what happened." Sergeant Kelly testified that Defendant Goodwin was considered a victim at the time he was transported to 201 Poplar to provide a statement.

         Prior to taking Defendant Goodwin's formal statement, Sergeant Kelly advised Defendant Goodwin of his Miranda rights, which he waived. The Advice of Rights Miranda Warning Waiver Form memorializing his waiver and Defendant Goodwin's formal statement were identified during the hearing. Although the transcript reflects that they were admitted as exhibits to the hearing, they are not included in the record on appeal.

         On cross-examination, Sergeant Kelly conceded that his supplemental report reflected that Defendant Goodwin was considered a "victim/possible suspect." He explained that this portion of the report was completed after the investigation. He further explained that Defendant Goodwin was located in the back seat of the patrol car because "it was typical procedure" to obtain victim statements separately. Sergeant Kelly later conceded that after obtaining information from the female victim, Defendant Goodwin was not free to leave the scene of the offense. Although Defendant Goodwin was not handcuffed once he arrived at 201 Poplar, he was not free to leave until after he provided his statement.

         Defendant Goodwin testified that when uniform police officers arrived on the scene on the night of the offense, he was immediately placed in the back of the patrol car. He explained that "he got a lady in the apartments" to call the police because they had just been robbed. Defendant Goodwin clarified that police asked him "what happened, " before he was placed in the patrol car. He told the police they had been robbed, but he did not know who did it. He said he was in handcuffs in the back of the patrol car for "hours" before he spoke to Sergeant Kelly. He explained that he had left his phone in the female victim's car, and Sergeant Kelly approached him in the patrol car and asked, "[I]s this your phone?"

         When Defendant Goodwin arrived at 201 Poplar, he was told he was a "suspect" and faced especially aggravated robbery charges. He said he was left in a room, handcuffed to a chair. He agreed that he signed the waiver form and explained

What was told to me was that he already had my phone. Either that I was going to let him keep my phone and he let me go to where he can search my phone or I won't, I won't let him get my phone and I go to jail and he'll get my phone anyway. That's what, that's what he told me.

         Asked what he thought would happen if he did not allow Sergeant Kelly to have his phone, Defendant Goodwin replied

That I would be going to jail. Because he wrote the statement, before he started asking me about the statement he put on there, he showed me what he was doing. He said I'm investigating you as a suspect and that's why I asked him, sir, why are you investigating me as a suspect and I'm a victim and I'm innocent. And he pointed out that that he was trying to make me a suspect. That's what made me feel threatened and scared because he told me that I was a suspect and I knew I wasn't a suspect.

         On cross-examination, Defendant Goodwin denied giving police a false name. He also denied telling the officers where to find the people he was alleged to have been there to meet. He also denied telling the female victim not to do anything and that he wanted her to drop him off at the mall.

         The trial court asked Defendant Goodwin a series of questions including, "When did you decide you didn't want to talk to the police?" Defendant Goodwin replied, "I never decided that I didn't want to talk to the police." The trial court pressed Defendant Goodwin and asked, "When did you want to stop cooperating with the police in investigating your own robbery?" Defendant Goodwin said, "I didn't. I never said that I didn't want to give a statement." Defendant Goodwin explained that he felt threatened when he became viewed as a suspect by the police. The trial court told the parties it wanted to hear from the patrol officers who placed Defendant Goodwin in the patrol car and reset the matter.

         On May 21 and May 22, 2014, the trial court held another bifurcated hearing on the motion to suppress. The victim testified that she met Defendant Goodwin through Facebook and had known him for approximately a month prior to the offense. She identified him in court. On February 11, 2011, the victim was with Defendant Goodwin in person for the first time. They went out to eat at Applebees, picked up her children from daycare, and she drove Defendant Goodwin to some apartments in East Memphis. She had money from her income tax check with her, which was almost $7, 000 in cash. She told Defendant Goodwin she was in possession of the money before she picked him up.

         She took Defendant Goodwin to one set of apartments, he got out, knocked on the door and no one answered. She then took him to another set of apartments. The entire time she was with him, Defendant Goodwin was texting with someone. He never indicated with whom he was texting. She explained that she was eventually robbed. She said:

Two people came up and one stood beside a light pole which is [Defendant Lee], on my side, behind the car. And the other one was standing on the other side, on the side that [Defendant Goodwin] was on. And he would get out to smoke and the person that was on his side asked him for a light and he would light it for him. And he did it, like, three times and like the last time they got into an altercation, I guess.

         The victim identified Defendant Joey Lee at the motion to suppress hearing. She said Defendant Lee came up on her side of the car, opened the door, pointed a gun at her back, and said, "Give me the money, B****." She repeatedly told Defendant Lee that she did not have any money, and Defendant Goodwin told her to "Give him the purse, give him the purse." The victim said that ultimately her purse was taken from under her seat and her jacket was taken from off the back of her seat. The victim's four children were in the car at the time of the offense. The victim said she eventually found her car keys, which Defendant Lee threw in the snow. She noted that Defendant Goodwin told her to "just leave, don't worry about it, go home, drop him off at the mall." She went back to the apartments, located a security guard and used his phone to call the police.

         Upon the arrival of the police, the victim described the perpetrator and eventually provided a written statement. She also told the police of her suspicion that Defendant Goodwin was somehow involved in the offense because he had been texting the entire time while with her. She was provided with a photographic line-up, from which she identified Defendant Lee. On cross-examination, she said that Defendant Goodwin got out of the car three times to talk to another unknown individual on the night of the offense. She explained that the first time Defendant Goodwin got out of the car was in response to the unknown individual knocking on the window and saying, "Hey man, I need a light." The second time Defendant Goodwin got out of the car, he smoked a cigarette with the unknown individual. The third time Defendant Goodwin got out of the car, an altercation, described as "tussling or fighting, or something occurred." The victim explained that although she did not see any physical contact, the other unknown individual "grabbed" Defendant Goodwin and put him back in the car.

         After the two men obtained the victim's belongings, they ran. Defendant Goodwin said, "Oh, my head, my head." The victim proclaimed they just robbed me, and Defendant Goodwin responded they robbed him too, referencing the $40 that the victim had given to him. She clarified that Defendant Goodwin remained with her seated on the passenger side of her car until the police arrived. Upon further clarification, the victim said she did not see Defendant Goodwin being taken out of her car the second time.

         Officer James Tedford with the Memphis Police Department was working from 2:00 p.m. to 10:00 p.m. on the day of the offense. He responded to a robbery call at 3395 Wild Rye Lane in Memphis, Tennessee. He testified that the scene officer advised that Defendant Goodwin said that he was meeting friends at the two apartments. In response, Officer Tedford went to the two apartment locations. The first apartment location was determined to be vacant. At the second location, the resident said she had no knowledge of Defendant Goodwin.

         Sergeant Kelly also responded to the scene. When he arrived, the victim was seated in her car and Defendant Goodwin was in the backseat of the patrol car. Defendant Goodwin was not handcuffed when Sergeant Kelly arrived on the scene. Sergeant Kelly told the officers to transport the victim and Defendant Goodwin to 201 Poplar to obtain their statements. Neither individual was in custody, considered a suspect, or under arrest at the time. Defendant Goodwin initially advised Sergeant Kelly that he had gone to dinner with his girlfriend on the opposite side of town, and that they were coming to that apartment complex in east Memphis to meet somebody to purchase some marijuana. Sergeant Kelly advised him that "his story didn't sound very believable, " presented him with an advice of rights form, and advised Defendant Goodwin of his Miranda rights. Defendant Goodwin appeared to understand his rights, waived his right to an attorney, did not appear to be under the influence of any drugs or intoxicants, and signed the form.

         Defendant Goodwin then recounted the statement he had previously told Sergeant Kelly. However, he added that he had been texting the individual they were to meet throughout the night. Defendant Goodwin's battery on his phone, which he alleged could verify his story, had no battery charge. Sergeant Kelly made attempts to locate a charger that fit Defendant Goodwin's phone but was unable to find one. Since they were unable to locate a phone charger, Sergeant Kelly asked Defendant Goodwin "if he had a problem with leaving the phone with him" to which Defendant Goodwin said no and gave him the phone. Defendant Goodwin was subsequently released, and his phone was tagged into evidence.

         On cross-examination, Sergeant Kelly acknowledged that the victim was allowed to go home and drop off her children while Defendant Goodwin was immediately taken to 201 Poplar. Sergeant Kelly further testified that had Defendant Goodwin asked to go home rather than 201 Poplar, "it would have been his option[.]" He further confirmed that some of his reports listed Defendant Goodwin as a "victim/possible suspect;" but he did not have enough evidence or "probable cause" to charge Defendant Goodwin with an offense that night. He agreed that he made handwritten notes on the night of the offense but could not recall where they were.

         The trial court, sua sponte, questioned the parties to determine the time frame involved. Defendant Goodwin provided his statement at "[a]bout 11:00 p.m." or almost midnight. He was transported to 201 Poplar by a uniform patrol officer, who did not testify at the hearing.

         Andre Pruitt, a sergeant with the Memphis Police Department at the time of the offense, testified that he was assigned the case the day after the offense or on February 12. Sergeant Kelly had advised him that he had received a signed phone consent form to search Defendant Goodwin's cell phone and that the victim had been robbed of $6, 500 while out on a date with a friend. He retrieved the phone from the property room and discovered text messages. The text messages were "just basically about a robbery." Although Sergeant Kelly advised him that they had consent to search the phone, Sergeant Pruitt also had obtained a search warrant to search the phone. The search warrant was admitted as an exhibit to the hearing. Asked whether he searched the phone after he obtained the search warrant, Sergeant Pruitt replied

Well, Sergeant Kelly had already told me that the consent was signed and I want to say that we started looking at it, then I was advised that we shouldn't do it without a search warrant, so I went on and got the search warrant and then I came back and continued looking through the phone.

         Sergeant Pruitt then searched the phone during the relevant time period and discovered text messages of value. He developed a photographic line-up, performed a background check on Defendant Goodwin to determine who he had been arrested with previously. Sergeant Pruitt identified the text messages he retrieved from Defendant Goodwin's phone, which were exhibited to the hearing. He confirmed that one of the suspects he developed was Defendant Lee, who was a past associate of Defendant Goodwin. Sergeant Pruitt went to Defendant Lee's home, obtained consent to enter, searched the home, and discovered the victim's cell phone in Defendant Lee's bedroom on the nightstand.

         On cross-examination, Sergeant Pruitt confirmed that there was a written consent to search form for Defendant Goodwin's cell phone; however, he did not bring it with him to the hearing. He explained that Sergeant Kelly had it prior to his involvement in the case. He confirmed that he actually saw the written consent form to search Defendant Goodwin's phone. He further explained that he obtained a search warrant for the phone because he was new to the bureau and a veteran officer told him to obtain the warrant. He prepared the affidavit in support of the search warrant. He recalled the chronology of events in the investigation: photographic line-ups were done at 2:06 and the warrant was signed at 3:00. He obtained Defendant Lee's name by conducting a criminal background check on Defendant Goodwin. He determined that Defendant Lee had been previously arrested with Defendant Goodwin. He confirmed that he had viewed Defendant Goodwin's phone prior to the line-ups and prepared two photographic line-up containing Defendant Goodwin's associates, both of which were shown to the victim. When he went to Defendant Lee's house, the victim had already identified Defendant Lee from the photographic line-up. He did not; however, have an arrest warrant or a search warrant.

         The defense argued that Defendant Goodwin's cell phone was obtained as a result of an illegal detention. Moreover, they asserted that even if the detention was not illegal, no consent was given by Defendant Goodwin to search his phone. Regardless of the testimony about the consent, the consent to search form was not offered into evidence. After considering the arguments, the trial court denied the motion, reasoning that the officers had probable cause to arrest Defendant Goodwin at the time he was released, even though they did not think they did.

         Trial.

         The trial was held February 9 through February 13, 2015. The victim testified, in large part, consistently with her testimony at the motion to suppress hearing. After she parked her car by an orange Camaro, as directed by Defendant Goodwin, she observed two men. One was by a light pole on her side of the car and the other was on Defendant Goodwin's side of the car. The man on Defendant Goodwin's side of the car asked him for a light, and Defendant Goodwin got out of the car to smoke a cigarette. When Defendant Goodwin returned to the car, the victim overheard him tell someone on the phone "be careful [']cause the police were in the apartments. They were at the front of the apartment." Defendant Goodwin then exited the car to smoke another cigarette and was assaulted by the man on the right side of her car. Defendant Goodwin returned to the victim's car, and the other man, she had previously seen near the light pole, pointed a gun at the small of her back.

         The man, later identified as Defendant Lee, said, "Give it to me, b****." The victim repeatedly told him that she did not have anything. She was willing to get out of the car and allow Defendant Lee to search her but he told her she "better not get out this damn car." The victim asked, "[Y]ou going to do this in front of my kids?" As the man continued to demand money from her, Defendant Goodwin told her to "just give him the purse." The victim's purse was located underneath her seat, not visible to anyone other than Defendant Goodwin, who was in the passenger seat. The victim said, "the next thing [she] knew, " the men were running away. The victim's keys, purse, coat, and cell phone were missing from her car. She described her phone as an "HTC My Touch."

         She later provided a statement to police concerning the offense, at which time she identified Defendant Lee from a photographic line-up. The advice of rights form and the photographic line-up were admitted into evidence at trial. Below Defendant Lee's photograph, the victim wrote:

This is the person that robbed me. Put a gun in my back and my neck and took $6500, my social security card, my kids social security card, my bank card, my purse, my - - and coat, my My Touch, (indiscernible) from me.

         The victim explained that she had recently purchased the phone that was taken from her in the robbery. She still had the box it came in, which was admitted as an exhibit at trial, and the serial number for the phone. She provided this information to the police and was present when they matched the serial number from the box to the serial number from the phone they recovered from Defendant Lee's home. Approximately $1500 and the victim's phone and purse were returned to her. She confirmed that someone hit Defendant Goodwin on the night of the offense, but he did not suffer any injuries.

         On cross-examination by Defendant Goodwin, the victim clarified that she told Defendant Goodwin that she had cashed her income tax check but did not tell him the exact amount of money she had received. She also confirmed that she gave Defendant Goodwin approximately $40 or $50 to pay a light bill. On redirect examination, the victim described the gun used in the robbery as a black "9 millimeter automatic ...


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