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State v. Buckner

Court of Criminal Appeals of Tennessee, Nashville

August 14, 2017

STATE OF TENNESSEE
v.
JONATHAN C. BUCKNER

          Assigned on Briefs April 26, 2017 at Knoxville

         Appeal from the Circuit Court for Houston County No. 2015-CR-3 Suzanne Lockert-Mash, Judge

         The Defendant, Jonathan C. Buckner, was convicted by a Houston County Circuit Court jury of theft of property valued at $1, 000 or more but less than $10, 000, a Class D felony. See T.C.A. § 39-14-103 (2014). The trial court sentenced the Defendant as a Range III, persistent offender to twelve years' confinement and ordered that his sentence be served consecutively to a sentence in an unrelated case. On appeal, the Defendant contends that the trial court erred (1) by failing to provide witnesses and prospective jurors proper instructions before jury selection, (2) by admitting inadmissible hearsay evidence, (3) by denying his two motions for a mistrial, (4) by overruling defense objections during the prosecutor's opening statement and closing argument, and (5) during sentencing. We affirm the judgment of the trial court.

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

          Chase T. Smith, Clarksville, Tennessee, for the appellant, Jonathan C. Buckner.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Ray Crouch, District Attorney General; and Talmage Woodall, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ. joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         This case arises from a December 9, 2014 incident in which the Defendant test drove an all-terrain vehicle (ATV) owned by Dylan Hutchinson. The Defendant was indicted for theft of property valued at $10, 000 or more but less than $60, 000, a Class C felony. At the trial, Mr. Hutchinson testified that he posted an online advertisement on Craigslist to sell his 2013 Polaris Razor ATV for $10, 500. Mr. Hutchinson purchased the ATV for $11, 500 on May 30, 2014. Photographs of the ATV and the bill of sale, reflecting the vehicle identification number and sale price, were received as exhibits. After he purchased the ATV, Mr. Hutchinson spent $7, 000 on upgrades.

         On December 9, 2014, at 7:00 a.m., the Defendant called Mr. Hutchinson regarding purchasing the ATV. The Defendant wanted to view the ATV immediately and told Mr. Hutchinson that he was leaving the state to "ride tomorrow" and needed to purchase another ATV because the Defendant's ATV was not operational. The Defendant offered $10, 000 cash during the telephone conversation, and Mr. Hutchinson accepted. The Defendant told Mr. Hutchinson he was from "Cumberland Furnace" and arrived at Mr. Hutchinson's home around 9:00 a.m. with Tracy Manning and a U-Haul vehicle. The Defendant did not provide his name to Mr. Hutchinson, but Mr. Hutchinson agreed to allow the Defendant to take the ATV for a test drive before paying for it because the Defendant wanted to ensure the transmission did not slip or become hot. Mr. Hutchinson told the Defendant to "take it up the driveway and come back down here, " but the Defendant drove the ATV off Mr. Hutchinson's property. The Defendant left his toboggan and sunglasses with Mr. Hutchinson, but Mr. Hutchinson denied looking at the toboggan or noticing an envelope of money inside the toboggan.

         Austin Black, Mr. Hutchinson's cousin, was present when the Defendant and Ms. Manning arrived. After the Defendant drove the ATV off Mr. Hutchinson's property, Mr. Black stayed with Ms. Manning, and Mr. Hutchinson left to find the Defendant. Mr. Hutchinson saw Erin Police Chief Moore when Mr. Hutchinson was attempting to find the Defendant, and Mr. Hutchinson explained that the Defendant had stolen the ATV. Police Chief Moore and Mr. Hutchinson drove to Mr. Hutchinson's home, and Police Chief Moore questioned Mr. Hutchinson, Mr. Black, and Ms. Manning. Mr. Black told the police that he did not see the Defendant and Mr. Hutchinson exchange money before the Defendant drove away on the ATV but that the Defendant gave his toboggan to Mr. Hutchinson before leaving on the ATV. Mr. Black recalled that before the Defendant left on the ATV, the Defendant mentioned living on "Buckner Loop, " but Mr. Black did not "get wherever [the Defendant] lived." Mr. Black did not talk to Ms. Manning and left the home after speaking to the police. At some point, Mr. Hutchinson called his father, Tommy Hutchinson, about the incident, and Tommy Hutchinson came to the home. After the police left the home, Dylan and Tommy Hutchinson left to continue looking for the Defendant and the ATV.

         Dylan and Tommy Hutchinson received information from Terry Buckner, Dylan Hutchinson's coworker, that the ATV could have been in the Cumberland Furnace area, and Dylan Hutchinson informed the police of the information and drove to Cumberland Furnace. The Hutchinson men found the Defendant and the ATV on Buckner Loop behind a home, but the Defendant drove the ATV into a field. Dylan Hutchinson informed the police that he had found the ATV, drove his truck into the field following the Defendant, and Dylan and Tommy Hutchinson got out of Dylan Hutchinson's truck. Tommy Hutchinson stood blocking the only exit to the fenced-in field, and the Defendant "came down the hill wide open" at Tommy Hutchinson. Dylan Hutchinson estimated the ATV's speed at sixty-eight miles per hour, which was the ATV's maximum speed. Tommy Hutchinson pulled out an unloaded pistol and inserted the magazine clip when it became clear the Defendant was not going to stop the ATV. Tommy Hutchinson fired the pistol twice, and the Defendant turned the ATV around, drove in the opposite direction, and "busted out of the fence" onto the roadway.

         By this time, Dylan Hutchinson's brother arrived in his truck and chased the Defendant but "lost" the Defendant during the pursuit. Tommy Hutchinson called the police to inform them of what had occurred, and all three Hutchinson men met at a nearby intersection and waited for Montgomery County Sheriff's Detective Moss to arrive. The detective told the men to wait at the intersection and drove away attempting to find the Defendant and the ATV. The detective returned a few minutes later following the Defendant and the ATV. The Hutchinson men had the roadway blocked with their trucks, but the Defendant did not stop and drove over a driveway and through another field. Dylan Hutchinson followed the Defendant, but the Defendant did not stop the ATV until Josh Bateman, Tommy Hutchinson's coworker, struck the ATV with a truck. Dylan Hutchinson got out of his truck, approached and grabbed the Defendant, and was told by the police to "back off."

         Tracy Manning testified that she went with the Defendant to Mr. Hutchinson's home because the Defendant said he was going to purchase an ATV for a friend, who wanted it for the friend's wife. She and the Defendant picked up the U-Haul truck from the Defendant's friend, and the Defendant drove the truck to Mr. Hutchinson's home. The Defendant agreed to pay her $50 for her time. She called and sent text messages to the Defendant's cell phone when she realized the Defendant had been gone too long on the "test drive." She identified herself to the police officers who came to Mr. Hutchinson's home but told the officers the Defendant's name was Jason. She thought she told the officers the Defendant's last name was Evits, but she was uncertain.

         Erin Police Officer Jamie Patterson testified that on the day of the incident, he was off duty in his personal vehicle when he saw the ATV traveling around sixty miles per hour on Main Street. He saw the Defendant drive the ATV recklessly, almost causing several motor vehicle accidents. Officer Patterson called Police Chief Moore about the ATV and provided information related to the direction in which the ATV traveled.

         Erin Police Chief Mark Moore testified that he received information about the ATV being driven recklessly and that he attempted to find it. Chief Moore stopped at "Sudden Service" and was approached by Dylan Hutchinson, who told him about the day's events and about Ms. Manning's remaining at Mr. Hutchinson's home. Police Chief Moore drove to Mr. Hutchinson's home. Ms. Manning told Police Chief Moore that the Defendant's name was Jason Evits, but Mr. Hutchinson said the photograph associated with Jason Evits' driver's license did not reflect the person who drove away on the ATV.

         Police Chief Moore and Houston County Sheriff's Deputy Hooper took Ms. Manning to the Houston County Sheriff's office for questioning. Police Chief Moore received a telephone call from Mr. Hutchinson, who reported finding the ATV and the Defendant. Police Chief Moore relayed the information to Montgomery County law enforcement officers, who found Mr. Hutchinson, the Defendant, and the ATV. A police pursuit began, and Police Chief Moore and Deputy Hooper left the Houston County Sheriff's Office and joined the pursuit. The Defendant was inside an ambulance when they arrived at the scene, and the Defendant was later released and taken into police custody. Police Chief Moore recalled the Defendant stated that he took the ATV but that he paid "some money" for it.

         Montgomery County Sheriff's Deputy Ethan Moss assisted the Houston County Sheriff's Department in locating the Defendant and the ATV. Deputy Moss turned on his blue lights after locating the ATV, but the Defendant "fled" the area. The Defendant waved at Deputy Moss during the pursuit, which lasted about fifteen minutes and ended with Josh Bateman's driving a truck into the ATV. The Defendant told Deputy Moss that the Defendant thought the police, Mr. Hutchinson, and Mr. Hutchinson's family were trying to kill him. A video recording from Deputy Moss's police car of the pursuit was played for the jury.

         The Defendant, who said he had pleaded guilty to reckless endangerment, robbery, and aggravated robbery in previous cases, testified that he was purchasing the ATV for a friend, Steve, who wanted the ATV for his wife. The Defendant said that he and Ms. Manning arrived at Mr. Hutchinson's home, that the men discussed the ATV, and that the Defendant mentioned having family in the Cumberland Furnace area. The Defendant was prepared to pay $8, 500, which was inside his jacket pocket. Mr. Hutchinson permitted the Defendant to drive the ATV, and the Defendant removed an envelope of cash from his jacket, placed it in a toboggan, and gave the toboggan to Mr. Hutchinson to hold until he returned from the test drive. The Defendant said Mr. Hutchinson told the Defendant to drive the ATV on Mr. Hutchinson's property, but the Defendant told Mr. Hutchinson that he wanted to drive it on the road and "open it up." The Defendant said Mr. Hutchinson did not "say no or anything" and denied attempting to drive away and not return.

         The Defendant testified that during his test drive, Ms. Manning sent him a text message telling him not to return to Mr. Hutchinson's home because the men claimed the Defendant had stolen the ATV. The Defendant called Ms. Manning, who informed him the police were at Mr. Hutchinson's home, and the Defendant ended the call without mentioning the $8, 500. The Defendant said that he did not return the ATV because of his previous experiences with the police and that he planned to abandon it somewhere and later inform Mr. Hutchinson of the location. The Defendant drove to his parents' home but did not hide the ATV inside the garage. The Defendant saw a truck, a passenger holding a pistol out of the truck's window, and heard a gunshot, prompting the Defendant to "take off" on the ATV. The Defendant drove into a field and was followed by the truck, and he said Tommy Hutchinson fired a gun three or four times at him. The Defendant denied driving the ATV directly toward Tommy Hutchinson. The Defendant was scared, drove away from the truck, and was ultimately hit by another truck. The Defendant said the incident was a misunderstanding about where he could drive the ATV.

         Upon this evidence, the Defendant was convicted of theft of property valued at $1, 000 or more but less than $10, 000. This appeal followed.

         I. Witness and Juror Instructions

         The Defendant contends that the trial court erred by failing to instruct trial witnesses not to sit in the courtroom gallery among the prospective jurors before jury selection began. The Defendant argues that a small adjacent room to the courtroom should have been used for trial witnesses to prevent witnesses from interacting with the prospective jurors on the first day of the trial. He argues, without citation to legal authority, that the interaction deprived him of his right to a fair trial. The State responds that the issue is waived because the Defendant failed to cite to legal authority in his brief and alternatively, that the Defendant has failed to show prejudice resulting from witnesses and prospective jurors being present inside the courtroom before the trial began.

         As a preliminary matter, the Defendant references a pretrial motion hearing in which the trial court granted his motion for "witness sequestration" in accordance with Tennessee Rule of Evidence 615. The Defendant argues that although the State knew that its witnesses were not to be present inside the courtroom, the witnesses were inside the courtroom until the prosecutor requested a bench conference, resulting in the trial court's requesting that trial witnesses stand and leave the courtroom. However, the record does not reflect any motion or trial court order relative to Rule 615. We note that the Defendant's brief cites neither to the relevant portion of the record regarding the motion, although he cites to three pages of the trial transcript relative to when the bench conference occurred before the trial began, nor to any legal authority supporting his argument that his right to a fair trial was denied. See Tenn. Ct. Crim. App. R. 10(b) ("Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.").

         In any event, the record fails to reflect that the defense objected to the manner in which the trial court conducted the proceedings. When the trial court came to order on the first day of the trial, the trial judge told the venire of prospective jurors to come forward from the gallery to be seated in the jury box when the juror's name was called by the court clerk. The judge noted the courtroom was small but that names would be called until the jury box seating was full with thirteen prospective jurors. After the court clerk called the first prospective juror's name, the prosecutor requested a bench conference. The bench conference was "had off [the] record, " and any statements made by the prosecutor, defense counsel, and the judge are not reflected in the transcript.

         After the bench conference concluded, the trial judge stated, "Any witnesses that are present would you please stand - witnesses for this case, so you're already standing." The prosecutor noted that Officer Patterson, the State's designated prosecuting officer, was also in the courtroom. The judge stated

Those of you who will be witnesses in this case I'm going to have to ask you to step out and stay outside of the presence of this Court until you are called in to testify. While you are outside or wherever you are do not discuss this case with anyone until completion of this case.
Once you are called in to testify, if you are excused, then you may sit in the courtroom to watch the proceedings; but you are still not to discuss your testimony with anyone until it is completed.
So if you will, if you will step outside until you are called. There's a table at the very end of the hall you can go back there and have a seat.

         The record reflects that the witnesses complied with the judge's instructions, and the court clerk resumed calling prospective jurors to enter the jury box.

         The record does not reflect that the defense objected to the witnesses being inside the courtroom. To the contrary, the prosecutor sought a bench conference just before the trial court instructed the witnesses to leave the courtroom. Furthermore, because the transcript does not reflect what was stated during the bench conference, this court is unable to determine what the parties discussed, whether the defense objected to the manner in which the trial court resolved the potential issue, or whether the defense alleged the Defendant's right to a fair trial had been denied because witnesses had been inside the courtroom gallery with prospective jurors. Because the record does not reflect that the defense objected, the issue is waived. See T.R.A.P. 36(a) ("Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error."). The Defendant is not entitled to relief on this basis.

         II. Hearsay

         The Defendant contends that the trial court erred by allowing Tommy Hutchinson and Police Chief Mark Moore to provide testimony relative to Dylan Hutchinson's statements at the time of the offense. He argues that the evidence was inadmissible hearsay and that the evidence violated his right to a fair trial. The State responds that the trial court properly allowed the testimony.

         Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tenn. R. Evid. 801(c). Hearsay is inadmissible unless it qualifies as an exception. Id. at 802. A trial court's factual findings and credibility determinations relative to a hearsay issue are binding upon an appellate court unless the evidence preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The determination of whether the statement in question is hearsay and whether a hearsay exception applies are questions of law that are reviewed de novo. Id.

         A. Tommy Hutchinson

         The record reflects that during Tommy Hutchinson's testimony, the prosecutor asked if he recalled his son, Dylan Hutchinson, calling him about the incident. Tommy Hutchinson recalled receiving a telephone call from his son around lunchtime. The prosecutor asked what Dylan Hutchinson said during the telephone call, and the defense objected on the basis of inadmissible hearsay. The prosecutor responded that Dylan Hutchinson had already testified, and defense counsel said, "That doesn't matter." The trial court overruled the objection and determined that Dylan Hutchinson had already testified and had been subject to cross-examination by the defense relative to what Dylan Hutchinson told his father during the telephone conversation. Tommy Hutchinson then testified that Dylan Hutchinson reported "that a guy . . . come to test drive his [ATV] . . . and hadn't returned" and that Dylan Hutchinson thought the person "stole it." Tommy Hutchinson testified that upon hearing this information, he told Dylan Hutchinson to call the police and that Tommy Hutchinson left work and drove to Dylan Hutchinson's home.

         The State argues on appeal that the statement was not offered for the truth of the matter asserted that the Defendant stole the ATV but rather, that the testimony was to show why Tommy Hutchinson came to his "son's assistance, " which is in essence an assertion that the testimony regarding the conversation was to show the effect the conversation had on Tommy Hutchinson. We disagree. The prosecutor did not respond to the hearsay objection that the testimony was to show the effect on Tommy Hutchinson. The prosecutor's response that Dylan Hutchinson had already testified shows that the testimony was offered for its truth. The trial court's statements support this conclusion, as well, and we note the court did not state that the testimony was not offered for its truth. Therefore, the testimony was hearsay in the manner it was offered. Furthermore, no exception to the rule barring the admission of hearsay evidence applied, rendering its admission erroneous.

         However, the admission of the testimony was harmless because Dylan Hutchinson had previously testified he called his brother and his father on the telephone to tell each of them that "somebody had stole[n] the [ATV]." Dylan Hutchinson identified the Defendant as the person who took the ATV during his testimony. Dylan Hutchinson also testified that his brother and father both left work, that Tommy Hutchinson came to Dylan Hutchinson's home, and that after the police left Dylan Hutchinson's home, Dylan and Tommy Hutchinson left to search for the Defendant and the ATV. Therefore, the record reflects that during Dylan Hutchinson's testimony, the jury was presented evidence that Dylan Hutchinson believed the Defendant had stolen the ATV and that he had relayed this information to his father, Tommy Hutchinson. We note that Dylan and Tommy Hutchinson were each subject to cross-examination. As a result, the Defendant is not entitled to relief on this basis.

         B. Police Chief Moore

         Relative to Police Chief Moore, the record reflects that during direct examination, Chief Moore stated that he received a telephone call from Dylan Hutchinson on the day of the incident. The prosecutor asked Chief Moore what Dylan Hutchinson said during the conversation, and the defense objected on the basis of hearsay. The court, without obtaining a response from the prosecutor, determined that the evidence was not being offered for its truth and that Dylan Hutchinson had already testified. Chief Moore was permitted to testify about Dylan Hutchinson's stating that he thought the Defendant had stolen the ATV. The State, again, argues on appeal that the evidence was not offered for its truth but rather to show the effect Mr. Hutchinson's information had on Chief Moore as it related to the police investigation, although this explanation was not provided at the trial.

         In any event, the record reflects that immediately after asking Chief Moore about the conversation, the prosecutor asked what Chief Moore did after receiving information from Mr. Hutchinson. This supports the trial court's determination that the testimony was offered to show the effect the information had on Chief Moore, specifically how Chief Moore investigated the allegation. The Defendant is not entitled to relief on this basis.

         III. Motions for a mistrial

         The Defendant requested two mistrials during the trial, which the trial court denied. The motions relate to a juror's observing the Defendant in a holding room during a trial recess and to a witness's testifying to information that was excluded by the court during a jury-out hearing. The State responds that the trial court properly denied the motions.

         A trial judge should declare a mistrial if manifest necessity arises. Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity occurs when "no feasible alternative to halting the proceedings" exists. State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981). "The granting or denial of a mistrial is within the sound discretion of the trial court." State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996); see State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990). This court will only disturb that decision if the trial court abused its discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990).

         A. Juror Encounter

         The record reflects that after the jury was selected and the Defendant pleaded not guilty, the trial court addressed various matters outside the presence of the jury. The defense requested a mistrial on the basis that a juror saw the Defendant in a holding area during a previous recess. Trial counsel told the court that the Defendant was sitting in the holding room when a juror, who was looking for water, looked inside the room and made eye contact with the Defendant. The court explained that the room at issue was a "holding cell with a regular door on it" with no sign designating the room's use. The court noted that the Defendant was dressed in "street clothes, " was not shackled or handcuffed, and was not being escorted from the room to the courtroom by police officers but rather by counsel. The court found that no evidence showed the Defendant was restrained or confined.

         The trial court identified the juror who was alleged to have seen the Defendant inside the room, and after an open courtroom discussion, the trial judge requested Youth Services Officer Lori Tifft testify about the incident. Upon examination by the court, Officer Tifft testified that her office was to the right of the relevant holding room. She said that as she walked up the stairs during a court recess, a juror stopped her and asked where the juror could find a bottle of water. Officer Tifft offered the juror water, which was inside the officer's office, and the officer and the juror walked to the officer's office. Officer Tifft said that her office door was open, that the juror waited at the door for the water bottle, and that the juror's back was toward the holding room, which had a small window covered with paper. Officer Tifft said the juror immediately entered the courtroom after receiving the water. Officer Tifft agreed that the window on the holding room door had been covered with paper at all times and that it was impossible for the juror to have seen through the window.

         On cross-examination, Officer Tifft said that the paper covered the entire widow on the holding room door, except for "a little gap on the side." She said she did not know at what the juror looked when Officer Tifft retrieved the bottle of water. She said, though, it took about two or three seconds to retrieve the water and hand it to the juror.

         The trial court found that no evidence showed the room appeared to be a "holding cell" because of the nature of the door and the absence of bars. The prosecutor and trial counsel examined the door and agreed that it did not have a door knob and that on the window, a one-inch gap on one side of the window ...


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