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State v. Patel

Court of Criminal Appeals of Tennessee, Nashville

August 25, 2017

STATE OF TENNESSEE
v.
KALPESH PATEL and PRATIKKUMAR V. PATEL

          Session: December 14, 2016

         Appeal from the Circuit Court for Rutherford County Nos. F-71339A & F-71339B David M. Bragg, Judge

         The Defendants, Kalpesh Patel and Pratikkumar V. Patel, were each convicted of one count of conspiracy to commit first degree murder, a Class A felony, and one count of solicitation to commit first degree murder, a Class B felony. See Tenn. Code Ann. §§ 39-12-102, -103, -107. The trial court merged the solicitation convictions into the conspiracy convictions and sentenced each Defendant to fifteen years as Range I, standard offenders. On appeal, the Defendants raise the following issues: (1) both Defendants contend that the evidence was insufficient to sustain their convictions for conspiracy to commit first degree murder; (2) both Defendants contend that the trial court erred in denying their motions to suppress evidence retrieved during warrantless searches of their cell phones; (3) Defendant Kalpesh[1] contends that the trial court erred by not sentencing him as an especially mitigated offender; (4) Defendant Kalpesh contends that a new trial is warranted based on newly discovered evidence impeaching the State's primary witness; (5) Defendant Pratikkumar contends that the State withheld exculpatory evidence; and (6) Defendant Pratikkumar contends that he received ineffective assistance of counsel from his trial counsel.[2] Following 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

          John H. Baker III (on appeal), William B. Bullock (at trial), and Heather Graves Parker (at trial), Murfreesboro, Tennessee, for the appellant, Kalpesh Patel.

          Manubir S. Arora (at motion for new trial hearing and on appeal), Sara S. Becker (at motion for new trial hearing and on appeal), Atlanta, Georgia; J. Alexander Little IV (at trial), Worrick G. Robinson (at motion for new trial hearing and on appeal), and Edward M. Yarbrough (at trial), Nashville, Tennessee, for the appellant, Pratikkumar V. Patel.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Jennings H. Jones, District Attorney General; Sarah N. Davis and John C. Zimmerman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         FACTUAL BACKGROUND[3]

         Christopher Robinson testified at trial that he was a construction worker living in Rutherford County and that he had never been arrested or in any kind of "criminal" trouble. Mr. Robinson further testified that he had known Defendant Kalpesh for six or seven years. Mr. Robinson explained that he had frequented one of Defendant Kalpesh's stores, that he got to know Defendant Kalpesh, and that he then began doing construction jobs at Defendant Kalpesh's stores and home. Mr. Robinson recalled that in September 2013, he was "doing a water line" at one of Defendant Kalpesh's stores when Defendant Kalpesh asked Mr. Robinson if he "would like to do some work for one of [Defendant Kalpesh's] cousins at another store." Mr. Robinson told Defendant Kalpesh that he "would be interested."

         On September 29, 2013, Defendant Kalpesh called Mr. Robinson and asked him to meet at the store to discuss the work with Defendant Kalpesh's cousin. When he arrived at the store, Defendant Kalpesh had Mr. Robinson go to "the back room" where Defendant Pratikkumar was waiting for them. Mr. Robinson testified that he had never met Defendant Pratikkumar before. Mr. Robinson claimed that Defendant Pratikkumar had a gun "[o]n his side" during their meeting and this made Mr. Robinson "real nervous." According to Mr. Robinson, Defendant Pratikkumar stated that he needed "someone to kill [his] wife" and that he would pay $50, 000 "to have it done." Mr. Robinson testified that he initially thought the Defendants "were joking around, " but Defendant Pratikkumar "kept going into details [about] how he wanted it done."

         Mr. Robinson explained that Defendant Pratikkumar wanted his wife shot and a "backup plan" in case "it could not go that route." According to Mr. Robinson, Defendant Pratikkumar wanted his wife killed "as soon as possible." Defendant Pratikkumar told Mr. Robinson that he would leave his house around 8:00 a.m., that he wanted his wife killed by 8:30 a.m., and that he "would come back and make sure the job was done." Defendant Kalpesh was to pay Mr. Robinson once Defendant Pratikkumar confirmed that his wife was dead. Mr. Robinson testified that Defendant Pratikkumar stated that his wife "had to be gone" and that Defendant Pratikkumar seemed "very excited" that his wife would soon be dead.

         According to Mr. Robinson, Defendant Pratikkumar provided Mr. Robinson with his wife's address, a description of her car, and her license plate number. Defendant Pratikkumar told Mr. Robinson that Defendant Kalpesh would provide him with a gun the next day. Defendant Pratikkumar also told Mr. Robinson that his "daughter would be asleep in [her] bedroom" and that Mr. Robinson was to shoot his wife and "let the little girl sleep." Mr. Robinson recalled that "[i]t didn't matter" to Defendant Pratikkumar if he killed Defendant Pratikkumar's wife or arranged for someone else to "as long as it was taken care of." Mr. Robinson was left with the impression that "[t]he only thing [Defendant Pratikkumar] wanted to make sure [of] was that [his wife] was dead."

         Mr. Robinson testified that Defendant Pratikkumar was "[k]ind of upset" when he suggested that Defendant Pratikkumar "get a divorce." According to Mr. Robinson, Defendant Pratikkumar stated "that he had two people in Gallatin that [were] going to take care of" killing his wife, but that he wanted Mr. Robinson "to do it" because Defendant Kalpesh trusted him. Mr. Robinson recalled that Defendant Kalpesh was in the room during this conversation with Defendant Pratikkumar and that Defendant Kalpesh was "shaking his head" in agreement with what Defendant Pratikkumar was saying.

         Mr. Robinson testified that he was "in shock" during his conversation with the Defendants. Mr. Robinson further testified that he told Defendant Pratikkumar that he "would make sure that it happened" in order to "buy time for" Defendant Pratikkumar's wife. Defendant Pratikkumar then left the store. According to Mr. Robinson, he asked Defendant Kalpesh why Defendant Pratikkumar could not just get divorced and Defendant Kalpesh told him that Defendant Pratikkumar's "family would disown him if [he] got a divorce." Mr. Robinson also claimed that Defendant Kalpesh told him that Defendant Pratikkumar "had this planned for a long time." Mr. Robinson testified that he then left the store and went to work without telling anyone about what had happened because he "thought it was a joke."

         The next morning, September 30, 2013, Defendant Kalpesh called Mr. Robinson and asked to meet him in the parking lot of a Sam's Club in order to pay him for a previous construction job. Defendant Kalpesh did not tell Mr. Robinson that Defendant Pratikkumar would also be there. Mr. Robinson parked his truck and, after a few minutes, Defendant Kalpesh parked his van on one side of the truck and Defendant Pratikkumar parked his van on the other side of the truck. A recording from the Sam's Club's video surveillance system depicting the parking lot at approximately 9:30 a.m. on September 30, 2013, was played for the jury. Mr. Robinson identified his truck and the Defendants' vans on the surveillance video. According to Mr. Robinson, Defendant Kalpesh got out of his van and got into Defendant Pratikkumar's van. A short time later, Defendant Kalpesh called Mr. Robinson and told him that Defendant Pratikkumar wanted to talk to him.

         According to Mr. Robinson, Defendant Kalpesh got out of Defendant Pratikkumar's van holding "a sack." Mr. Robinson testified that when he got in Defendant Pratikkumar's van, he asked "what was in the bag, " and Defendant Pratikkumar responded that he had given Defendant Kalpesh "$50, 000 in cash." Mr. Robinson further testified that Defendant Pratikkumar told him that Defendant Kalpesh was taking the money "to trade that cash in" at a different bank so "it would not be traced back to the bank" it was withdrawn from. Mr. Robinson claimed that Defendant Pratikkumar then "started describing everything that he wanted done." Defendant Pratikkumar gave Mr. Robinson a picture of his wife, and Mr. Robinson used his cell phone to take a picture of it. Defendant Pratikkumar also gave Mr. Robinson his address, a description of his wife's car, and "her tag number." Mr. Robinson testified that he wrote all of this information down on a piece of paper.

         Mr. Robinson claimed that Defendant Pratikkumar said that he wanted his wife killed the next morning. According to Mr. Robinson, Defendant Pratikkumar told his wife that a "handyman" would be coming to their house that morning to make some repairs. Defendant Pratikkumar instructed Mr. Robinson to shoot his wife in their bedroom and to "throw stuff around" so it would look "like a robbery gone bad." Mr. Robinson further claimed that Defendant Pratikkumar told Mr. Robinson to let his daughter "sit there and cry" if she woke up during the murder. Mr. Robinson further testified that he and Defendant Pratikkumar discussed having "another person" commit the murder. Mr. Robinson claimed that he agreed to arrange the killing without "getting [any]thing out of it."

         Mr. Robinson testified that he told Defendant Pratikkumar that he would "make sure that it got done" and went back to his truck. As Defendant Pratikkumar drove away, Mr. Robinson wrote down Defendant Pratikkumar's license plate number and a description of the van on the same sheet of paper that he had previously written down the information about Defendant Pratikkumar's wife on. Mr. Robinson testified that he then went to one of Defendant Kalpesh's stores. According to Mr. Robinson, Defendant Kalpesh gave him a box containing $15, 000 in cash. Mr. Robinson also claimed that Defendant Kalpesh stated that he had not bought a gun, that he wanted Mr. Robinson "to purchase the gun, " and that he would give Mr. Robinson "a couple thousand dollars for the gun after it was all said and done." Defendant Kalpesh then allegedly instructed Mr. Robinson to dispose of the gun after the murder by throwing it in a river.

         Mr. Robinson testified that, after the events of that morning, he believed the Defendants were serious about having Defendant Pratikkumar's wife killed. Mr. Robinson called a local attorney, Rick Mansfield, and told him about his conversations with the Defendants. Mr. Mansfield had Mr. Robinson call another local attorney who was a former prosecutor and had contacts with the Tennessee Bureau of Investigation (TBI). As a result of these conversations, Mr. Robinson was contacted by TBI Special Agent Caleb Utterback. Agent Utterback met with Mr. Robinson at one of Mr. Robinson's jobsites. Mr. Robinson gave Agent Utterback the box containing $15, 000 and the piece of paper with the information he had written down during his meeting with Defendant Pratikkumar at Sam's Club. Mr. Robinson also showed Agent Utterback the picture of Defendant Pratikkumar's wife that he had taken with his cell phone.

         Later that day, Defendant Pratikkumar called Mr. Robinson. Mr. Robinson did not answer the phone and contacted Agent Utterback. Agent Utterback arranged to meet Mr. Robinson in the parking lot of a local store, so Mr. Robinson could call back Defendant Pratikkumar and their conversation could be recorded. Defendant Pratikkumar did not answer his phone when Mr. Robinson called him, but he called Mr. Robinson back a short time later. This conversation was recorded and played for the jury at trial. Mr. Robinson started the conversation by confirming the license plate number of Defendant Pratikkumar's wife's car. The following exchange then occurred:

[Mr. Robinson]: [Okay], what time did you want me to be at Almaville Market tomorrow?
[Defendant Pratikkumar]: Um, you mean after you finish the work?
[Mr. Robinson]: Yeah, after the work[']s finished. I mean he's going to be doing the work, but what time do you want me there at the store?
[Defendant Pratikkumar]: Oh, you can meet anytime. I mean as soon as you call me from the store, the work is done; your work is done too.
[Mr. Robinson]: [Okay], so, and [Defendant Kalpesh] does have the rest of the money sitting there, right?
[Defendant Pratikkumar]: Yep . . . .
[Mr. Robinson]: [Okay], I mean, uh
[Defendant Pratikkumar]: I mean as soon as you know on your phone that it's done. You know? Then [Defendant Kalpesh] will take care of it. He'll get it before he gets there.
[Mr. Robinson]: [Okay], I just wanted to make sure, buddy, because my man is asking me, and I just need to make sure that everything's lined up and set to go. But you are sure you want this done?
[Defendant Pratikkumar]: What did you say?
[Mr. Robinson]: I said, you are sure that you want this done? Cause once I hang up it's over with. Come tomorrow at [8:30 a.m.] it's done.
[Defendant Pratikkumar]: Yes, I want everything done by [8:29 a.m.], not even [8:30 a.m.] . . . everything should be done.
[Mr. Robinson]: [Okay], you want it done by [8:30 a.m.]?
[Defendant Pratikkumar]: That's it. No back up now.
[Mr. Robinson]: [Okay], well, I'm not going to back out. What time are you going to be leaving the house?
[Defendant Pratikkumar]: [8:00 a.m.].
[Mr. Robinson]: [8:00 a.m.]. [Okay], well, everything is lined up, everything is set to go. I will not talk to you [any] more [un]til tomorrow. And once it's done, ah, make sure the money is there because my man's not going to play around.
[Defendant Pratikkumar]: That's it. You don't need to worry about the rest of the thing. As I say, once this work [is] done [the] right way, the way I want it, you will remember that day. I will always take care of you nicely . . . .
[Mr. Robinson]: [Okay], buddy, I do appreciate it, I'm fixing to get off here and, uh, I will talk to you tomorrow.
[Defendant Pratikkumar]: Yeah, I just need you to be 100%, that's what I need.
[Mr. Robinson]: 100%, you've got 110% of me.
[Defendant Pratikkumar]: That's it man. Alright man.
[Mr. Robinson]: Alright, bye.
[Defendant Pratikkumar]: Bye.

         Shortly after the first conversation ended, Defendant Pratikkumar called Mr. Robinson again wanting to make sure that he had "the address and everything." Mr. Robinson confirmed Defendant Pratikkumar's address and the description of Defendant Pratikkumar's wife's car. Then, the following exchange took place:

[Mr. Robinson]: I did, [okay]. That's what I wanted to make sure of so everybody's on the right page, and we asked you --
[Defendant Pratikkumar]: You are my handyman for my new store, [okay]? We are trying to build a counter. And, uh, we are cool and everything and you can invest in it.
[Mr. Robinson]: [Okay].
[Defendant Pratikkumar]: So make sure you do my work, [okay]?
[Mr. Robinson]: Does your wife know that the handyman is going to be there to work on the doors and the floor in the morning?
[Defendant Pratikkumar]: Yes, sir.
[Mr. Robinson]: [Okay], and the baby is supposed to be asleep, right?
[Defendant Pratikkumar]: Yes.
[Mr. Robinson]: [Okay], that's all I need to make sure of buddy. ...

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