Session February 8, 2017
by Permission from the Court of Criminal Appeals Circuit
Court for Bedford County No. 17626 Forest A. Durard, Jr.,
granted this appeal by the State of Tennessee to consider
whether the trial court erred by allowing the jury in this
case to deliberate late into the night and early morning on
the last day of trial before convicting the defendant of
first degree murder and conspiracy to commit first degree
murder. The Court of Criminal Appeals granted the defendant
relief on this issue, reasoning that absent a showing of
unusual circumstances, late-night trial proceedings should be
avoided and that such circumstances were not presented in
this case. We accepted this appeal to examine this issue and
clarify the applicable standard of review on appeal.
Following our review, we conclude that the Court of Criminal
Appeals erred in concluding that the trial court's
conducting late-night trial proceedings requires reversal of
the defendant's convictions. Accordingly, the Court of
Criminal Appeals is reversed and the judgments of the trial
court are affirmed.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; Andrew C.
Coulam, Assistant Attorney General; Robert J. Carter,
District Attorney General; and Richard A. Cawley and Michael
D. Randles, Assistant District Attorneys General, for the
appellant, State of Tennessee.
Christopher P. Westmoreland, Shelbyville, Tennessee, for the
defendant, Susan Jo Walls.
A. Page, J., delivered the opinion of the court, in which
Jeffrey S. Bivins, C.J., Cornelia A. Clark, and Holly Kirby,
A. PAGE, JUSTICE.
trial of this matter began on Monday, May 5, 2014. The trial
continued through the week until Thursday afternoon, May 8.
After closing arguments, the trial court stood in recess for
approximately two hours when the defendant suffered a medical
emergency. When the proceedings resumed, the trial court
instructed the jury around 6:30 p.m., and the jury retired to
deliberate. As detailed below, multiple interactions occurred
among the trial judge, the attorneys, and the jury during
this time. The jury returned a verdict at 1:05 a.m. the
following morning. The Court of Criminal Appeals granted the
defendant relief on the issue of late-night court
proceedings, State v. Walls, No.
M2014-01972-CCA-R3-CD, 2016 WL 1409836, at *13-14 (Tenn.
Crim. App. Apr. 7, 2016), perm. app. granted (Tenn.
Aug. 18, 2016), and the State filed a Tennessee Rule of
Appellate Procedure 11 application for permission to appeal,
arguing that the Court of Criminal Appeals erred in its
ruling. We granted the application to consider whether,
inter alia, the trial court erred in permitting the
jury to deliberate into the late night and early morning
FACTS AND PROCEDURAL HISTORY
August 8, 2012, Bedford County Sheriff's Deputy Tim Fox
responded to a report of a theft on Enon Church Road in
Bedford County. Upon his arrival, he encountered the
defendant, Susan Walls, and her daughter Dawn Walls standing
at the mailbox. There, he learned that the victim, Larry
Walls, Sr., was inside the residence, deceased. Deputy Fox
performed a cursory check of the residence and observed the
victim on the floor of a bedroom. He described the scene as
"pretty gruesome." Blood was on the walls, the
floor, and the furniture around the victim.
Bureau of Investigation ("TBI") Special Agent Caleb
Utterback also responded to the scene in Bedford County
pursuant to a request from the Bedford County District
Attorney for the TBI to handle the investigation. Based upon
his experience, he thought that the crime scene appeared
"staged." Special Agent Utterback listened to the
recording of the 9-1-1 call in his vehicle. The defendant had
placed the call, but Dawnhad to finish the call because the
dispatcher could not understand the defendant. He agreed that
the recording struck him as "odd." The call had
been dispatched as a theft; neither the defendant nor Dawn
conveyed any information about a deceased person at the
residence. Also, Dawn gave her alibi for the day to the
dispatcher, which presented a "huge red flag" to
Special Agent Utterback.
the TBI's investigation, they discovered that the
victim's death had been the result of a murder-for-hire.
Several witnesses, including Dawn, her sisters Aelisa Stacy
and Melissa Walls, her brother Larry Walls, Jr., and others,
described the victim as having been an "evil man"
who had been extremely physically abusive to both the
defendant and their children and sexually abusive to Dawn.
Over the years, many of the victim's family members had
commented offhandedly that they wished he were dead but never
to the point of plotting his death.
Memorial Day Weekend 2012, the victim and the defendant
traveled to Antioch, a suburb of Nashville, to spend the
night at Dawn's apartment. Dawn shared the apartment with
her boyfriend, Derrick McClain; her roommate, Chrissy
Twilley; and Ms. Twilley's boyfriend, Jason Starrick.
During the weekend, Dawn, the defendant, and Mr. Starrick
discussed how much money killing the victim would cost and
various methods that could be employed.
mid-July, the defendant visited her daughter Aelisa at the
residence of Aelisa's boyfriend, Joseph Williams. The
defendant had puffy eyes as though she had been crying, and
it appeared to Mr. Williams that someone had struck her. The
defendant told Mr. Williams that the victim had hit her, that
"she was tired of it, " and that it "was the
last time he was ever going to hit her." The defendant
remarked that "she had it taken care of and that she had
some guys that was [sic] going to come down and slit his
one week later, Dawn spoke with Mr. Starrick again and
discussed his "tak[ing] care of [the victim]" for
$400.  The defendant acquiesced and told Dawn
that she would pay half of the sum. A plan was formulated for
Dawn and the defendant to take Aelisa and her four children
to a Chuck E. Cheese's restaurant to provide an
opportunity for Mr. Starrick to kill the victim at his home.
The plan was discussed five or six times before it was
night before the murder, August 7, 2012, several people were
present at the home of the victim and the defendant. Dawn and
the defendant had a discussion about why everyone was there.
They said that the murder would occur the following day,
August 8. At some point, Dawn informed Mr. Starrick that the
back door of the residence was always unlocked. Dawn
indicated that she wanted to take Aelisa's son to Chuck
E. Cheese's because the school year would begin soon.
That night, Dawn, Aelisa, Ms. Twilley, Mr. Starrick, Sean
Gerheardt, and Aelisa's four children drove in two cars
to Dawn's apartment in Antioch to spend the night.
Everyone except Mr. Gerheardt spent the night there. Dawn
paid Mr. Starrick $70 in cash and also provided him with a
debit card and personal identification number so that he
could purchase the necessary items to carry out the murder.
The defendant did not contribute any money to Mr. Starrick.
following morning, Mr. Gerheardt returned to the apartment,
and he and Mr. Starrick left the apartment around 6:15 a.m.
They used Dawn's debit card that morning at a Mapco gas
station and at Walmart, where they purchased ammonia and two
sets of rubber gloves. The defendant arrived at Dawn's
apartment around 10:00 a.m. Mr. Gerheardt and Mr. Starrick
returned thereafter; they were wearing black clothes, and Mr.
Gerheardt had some blood on him. Mr. Starrick removed a
long-sleeve shirt that was wet. When the two men entered the
apartment, Ms. Twilley observed "tissue or matter"
on the side of Mr. Starrick's face and a bloody
fingerprint on Mr. Gerheardt. They entered a bathroom,
cleaned up, and exited with a plastic garbage bag. Mr.
Starrick returned Dawn's debit card, and she drove to
Mapco to obtain money from the teller machine to spend at
Chuck E. Cheese's. When she returned from Mapco, Mr.
Gerheardt and Mr. Starrick were in the parking lot placing a
black trash bag into Mr. Starrick's truck. They told Dawn
that "it was done." Later that day, the defendant,
Dawn, Aelisa, and the children drove to Shelbyville.
they arrived in Shelbyville, Dawn and the defendant took
Aelisa and her children to Melissa's house. They had
planned this in advance because the defendant did not want
Aelisa and her children to see the victim or the crime scene.
Dawn and the defendant went to get ice cream for all of the
children from the defendant's house. When their trip took
longer than expected, Aelisa called to see why they were
delayed. The defendant told Aelisa what had happened to the
the defendant and Dawn initially gave statements in which
they disclaimed any involvement, they both subsequently
provided statements in which they accepted responsibility and
explained the events leading up to and surrounding the
victim's murder. In addition to the confessions, the
State's evidence at trial included forensic evidence,
which matched the victim's blood with blood found on Mr.
Starrick's long-sleeve shirt that was recovered from the
apartment and with blood found on the belt Mr. Starrick was
wearing when he was arrested. The medical examiner opined
that the victim died by "multiple modality, " any
of which were potentially fatal and all of which contributed
to his death: blunt force trauma to the head, and stab wounds
to the heart, lung, and liver. Jason Starrick and Sean
Gerheardt were located, with the assistance of Ms. Twilley,
and arrested; the defendant and Dawn were arrested and
charged with criminal responsibility for the first-degree
premeditated murder of the victim and conspiring with each
other, Mr. Starrick, and Mr. Gerheardt to commit said murder.
The defendant was found guilty and was sentenced to
concurrent terms of life in prison and twenty-one years,
defendant appealed her conviction and sentence on several
grounds. Walls, 2016 WL 1409836, at *1. In the Court
of Criminal Appeals, the defendant argued, inter
alia, that the evidence was insufficient to support her
convictions, that the trial court erred by allowing the jury
to deliberate late into the night, and that the trial court
erred in several other rulings. Id. The Court of
Criminal Appeals reversed the defendant's convictions
based on the late-night jury deliberations but affirmed the
convictions on all other grounds. Id.
Court, the State filed a Tennessee Rule of Appellate
Procedure 11 application for permission to appeal, arguing
that the intermediate appellate court erred in reversing the
defendant's convictions based on the jury's
late-night deliberations. We granted the application to
consider whether "a trial court's decision to extend
jury-trial proceedings into the late-night hours [is]
reviewed for abuse of discretion or . . . de novo without a
presumption of correctness" and whether "[a]bsent
evidence of attorney or juror fatigue, . . . the trial court
violate[s] the defendant's constitutional rights to due
process and a fair trial by permitting the jury to continue
its deliberations late into the night." To decide this
issue, we must first consider whether the defendant properly
preserved the issue in the absence of a definitive ruling by
the trial court and a failure to renew the motion during the
course of the late night proceedings.
matter requires us to review the proceedings that were
conducted in the trial court contemporaneously with the
late-night proceedings as well as what transpired during the
hearing on the motion for a new trial.
p.m. on May 8, 2014, the defendant began experiencing health
problems. A paramedic was summoned, and he indicated that the
defendant's blood pressure was 210/120, which he
described as "[v]ery high, stroke high." A deputy
suggested that they should transport the defendant to a
hospital, and the paramedic agreed. After the defendant's
removal from the courtroom, the trial court mentioned
instructing the jury in her absence, and defense counsel
thereupon objected to "any further action without [his]
client here." The State suggested that they "just
wait a little while and see if her blood pressure comes back
down and then proceed." Thereafter, the following
conversation occurred on the record:
DEFENSE COUNSEL: I think . . . the General may be correct
there. And based on my experience, I've never been in the
hospital where it took twenty or thirty minutes for a turn
around, especially not when your blood pressure is that high.
They always want to make sure that whatever they've
administered that you don't drop too low and that kind of
thing. So if it's going to be two hours, which sounds
like a long time, two hours. Especially, then to come back in
after two hours, if she's even here, we're going to
have another thirty, forty minutes based on what we expect
the charge to be and then they're going to start
deliberating at seven o'clock at night?
THE COURT: Yeah, it's going to take me thirty, forty-five
minutes to read this charge. DEFENSE COUNSEL: It sounds to
me, based on where we are, is that the best thing to do would
be to adjourn until tomorrow and start fresh in the morning.
I don't have a problem dismissing the juror that needs to
go to Knoxville. I have no problem at all.
further discussion ensued. The defendant returned from the
hospital, and with her present, the trial court instructed
the jury beginning at 6:30 p.m. The jury began deliberating
at 7:13 p.m. The jury sent a question to the trial court at
10:41 p.m. The trial court and attorneys were still
discussing the appropriate answer when the jury sent word
that they were hungry and wanted something to eat. The clerk
ordered pizza for the jury, and at 11:13 p.m., the trial
court sent the ...