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State v. Odum

Court of Criminal Appeals of Tennessee, Knoxville

November 20, 2017

STATE OF TENNESSEE
v.
THOMAS PAUL ODUM

          Assigned on Briefs September 19, 2017

         Appeal from the Criminal Court for McMinn County No. 14-313 Andrew M. Freiberg, Judge

         Defendant, Thomas Paul Odum, was indicted for first degree felony murder, first degree premeditated murder, conspiracy to commit aggravated burglary, aggravated burglary, burglary, theft of property valued at more than $1000, and possession of a firearm by a convicted felon. Prior to trial, the State filed a notice of intent to seek the death penalty and dismissed the first degree premeditated murder charge. At the close of the State's proof, the trial court granted a motion for judgment of acquittal with respect to the burglary charge. The jury ultimately found Defendant guilty of felony murder, conspiracy to commit aggravated burglary, aggravated burglary, theft of property valued at more than $1000, and possession of a firearm by a convicted felon. Following the penalty phase, the jury sentenced Defendant to life without the possibility of parole. The trial judge separately sentenced Defendant to an effective sentence of five years for the remaining convictions, to be served consecutively to Defendant's life sentence. Defendant appeals, arguing that (1) the trial court erred by denying the motion to disqualify the District Attorney's Office prior to trial; (2) the trial court erred by denying the motion to suppress Defendant's statement; (3) the evidence was insufficient to support the convictions; and (4) the sentence was excessive. For the following reasons, we affirm the judgments of the trial court.

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

          Richard Hughes, District Public Defender; Donald Leon Shahan, Jr. (at trial and on appeal), and Bryan Hoss (at trial), Assistant District Public Defenders, for the appellant, Thomas Paul Odum.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Stephen Crump, District Attorney General; and Heather Higginbotham, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         Factual and Procedural History

         On July 4, 2014, Tyler Womack, the victim, walked from the home he shared with his grandmother, Vicky Lee Womack, to a home across the street to borrow an air compressor from his neighbor, Art Ingram. When the victim did not return promptly and failed to respond to several text messages from Ms. Womack, she walked over to the Ingram property to look for her grandson. She found the victim lying dead on the ground next to an old car with a bag over his head. He had been shot once through the eye.

         Eventually, Defendant, Amanda Britnell, and Martha Thompson were developed as suspects and were ultimately arrested. In August of 2014, all three defendants were indicted by the McMinn County Grand Jury for conspiracy to commit aggravated burglary, aggravated burglary, burglary, theft of property valued over $1000, first degree felony murder, and first degree murder. Defendant was also indicted for one count of possession of a firearm by a convicted felon.

         In November of 2014, the State filed a notice of intent to seek the death penalty against Defendant, citing the following aggravating circumstances: (1) Defendant was previously convicted of one or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person; (2) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of Defendant or another; and (3) the murder was knowingly committed, solicited, directed, or aided by Defendant, while Defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.[1] Prior to trial, the trial court dismissed the first degree premeditated murder charge upon motion by the State.

         Joseph Hoffer was appointed by the McMinn County General Sessions Court to represent Codefendant Britnell. In March of 2015, after Codefendant Britnell's preliminary hearing, but prior to Defendant's trial, Mr. Hoffer was hired by the Tenth Judicial District Attorney's Office. Codefendant Britnell received new counsel when Mr. Hoffer took this position. The District Attorney's Office implemented strict screening measures in April of 2015 to prevent Mr. Hoffer from having any interaction with Defendant's case. In April of 2015, Defendant filed a motion to disqualify the District Attorney's Office on the basis of Mr. Hoffer's involvement in the case.

         The trial court held a hearing on the matter. At the conclusion of the hearing, the trial court denied the motion, finding that even though an actual conflict of interest existed, there was no damage or irreparable injury. Specifically, the trial court determined that the District Attorney's Office implemented adequate screening procedures and safeguards prior to Mr. Hoffer joining the office. The trial court also determined that the evidence established that Mr. Hoffer did not share any confidences that he was privy to as a result of his limited representation of Codefendant Britnell. In other words, the trial court determined that the State met its burden by clear and convincing evidence. The trial court entered a written order denying the motion. Defendant filed a motion in the trial court seeking permission for an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. The trial court denied the motion. Defendant then filed a motion for reconsideration of his previous motion to disqualify the District Attorney's Office, and the trial court again denied the motion. Defendant filed an application for permission to appeal to this Court pursuant to Tennessee Rule of Appellate Procedure 10. This Court denied the application for permission to appeal on the basis that there was no proof that the trial court "so far departed from the accepted and usual course of judicial proceedings as to require immediate review." State v. Thomas Paul Odum, No. E2016-00342-CCA-R10-CD (order Feb. 26, 2016) (quoting Tenn. R. App. P. 10(a)). The Tennessee Supreme Court subsequently denied the application for permission to appeal. See State v. Thomas Paul Odum, No. E2016-00342-SC-R10-CD (order Apr. 11, 2016).

         In November of 2015, Defendant filed a motion to suppress his statement. In the motion, Defendant complained that "through coercion, law enforcement agents continued to question him" after he asked for a lawyer in violation of his 5th and 14th Amendment rights. After a hearing, the trial court determined that Defendant was in custody but voluntarily chose to answer questions after being advised of his rights. Specifically, the trial court found that Defendant asked for a lawyer and the interviewers immediately stopped questioning Defendant. Shortly thereafter, Defendant reinitiated the interview by engaging the interviewers in conversation about the crime. Defendant was again advised about his rights before giving a statement. The trial court denied the motion to suppress.

         Trial Testimony

         When the victim was eight years of age, he moved in with his grandmother, Ms. Womack, in rural Athens, Tennessee. Mr. Ingram lived across the street from the Womacks and often invited the victim to spend time at his home. Mr. Ingram's property and home were filled with old cars, guns, hunting equipment, a camper, and various other items.

         Mr. Ingram knew Defendant. Shortly before the victim's death, Mr. Ingram had agreed to allow Defendant to perform 50 hours of work on a Nissan 300ZX in exchange for a 1972 GMC pickup truck. Defendant came by the Ingram property to discuss his work schedule on June 30 and worked approximately five hours that day. Mr. Ingram informed Defendant that he would be out of town for the remainder of the week visiting his girlfriend in Ringold, Georgia, and that Defendant could return the following Monday to work on the vehicle. Mr. Ingram did not give Defendant permission to work on the vehicle or be present at the house while he was out of town.

         Before he left that day, Defendant told Mr. Ingram that he wanted to swap a bicycle for two antique Owlhead pistols described as "wall-hangers" owned by Mr. Ingram. Mr. Ingram went inside the house. Defendant followed him inside without being invited. Though they did not make the exchange that day, they discussed a potential swap.

         On Friday, July 4, Ms. Womack asked the victim to take her car across the street to Mr. Ingram's home to borrow an air compressor to put air in one of her tires. She was aware that Mr. Ingram was out of town, so she sent him a text message asking his permission to use the air compressor. Mr. Ingram gave the victim permission to enter his property, and the victim walked over to Mr. Ingram's around 12:40 p.m.

         Ms. Womack became concerned when the victim did not return in a prompt manner. At first, she thought that maybe Mr. Ingram was home and the victim had engaged him in conversation. Ms. Womack looked outside to see if she could see the victim coming back toward the house. She heard a "bang." Ms. Womack sent a text message to the victim asking him "what was that bang?" Because it was the Fourth of July, Ms. Womack assumed that she had heard fireworks. When the victim did not respond, she sent several additional text messages to him. The victim still did not respond. Ms. Womack walked outside and yelled for the victim. She eventually walked across the street to Mr. Ingram's property to search for her grandson. She found him lying on the ground next to an old car. There was a bag over his head. He had been shot one time in the head. Ms. Womack, hysterical, called 911 to report the shooting.

         Around that same time, Margaret Mashburn, Ms. Womack's next door neighbor, was sitting on the front porch of her house talking to her daughter. Ms. Mashburn saw a person walk in front of the Ingram house and then "look[] up behind it like she was seeing maybe if a car or somebody was coming down the driveway." She then saw the person walk down the driveway and continue down the road. Ms. Mashburn thought that the person walking in Mr. Ingram's front yard "looked like a girl."

         Deputy Timothy J. Davis, Jr., of the McMinn County Sheriff's Office was the first officer to respond to the 911 call. He was dispatched to Mr. Ingram's home on a report of a "possible suicide." He encountered Ms. Womack, "running out into the yard towards the road, pointing [the officers] towards the back of the home." She was "hysterical, " "really manic, " and had blood on her hands from trying to administer first aid to the victim. Deputy Davis found the victim "against a car, slumped over." Deputy Davis described the victim as having an "impact site from a firearm to his right eye" and there being "quite a bit of blood." There was a "bag partially over the head" of the victim and an impact site on the vehicle.

         According to the Medical Examiner, Dr. Christopher Lochmuller, the victim died as a result of a single gunshot to the right eye. The entrance wound contained "searing, " which indicated that the muzzle of the gun was held either very close to the skin or was in contact with the skin at the point of impact. Dr. Lochmuller opined that the victim's head was covered by the nylon bag and that the muzzle of the gun was touching the bag at the time the victim was shot.

         Sergeant Joseph Paul Johnson arrived on the scene shortly after Deputy Davis. The officers worked together to secure the scene, taking note that Mr. Ingram, the property owner, was not home. Officers saw a still for making moonshine, several bottles of morphine and lidocaine, needles, and other drug paraphernalia around the home as well as several firearms inside the home. It appeared that one of the outbuildings and a camper located at the residence had been forcibly entered. Detective Blake Witt of the McMinn County Sheriff's Office was one of the officers on the scene that day. As part of the crime scene investigation, he recovered a cigarette butt from the driveway. DNA on the cigarette butt found in the driveway matched the Defendant's DNA. Three other cigarette butts located in the driveway, on the kitchen table, and on the back porch matched the DNA of Codefendant Thompson.

         Several days after the victim's death, Detective Witt met with Mr. Ingram. During the interview, Mr. Ingram explained that he hired Defendant to work at his property prior to the victim's death. He also identified many items that were missing from his property after the victim's death, including guns, scopes, ammunition, bottles of wine, camcorders, DVD players, knives, arrows, crossbows, and swords as well as other items. The interview with Mr. Ingram led to Defendant being developed as a suspect.[2]

         The sheriff's office began to receive reports from people who located some of the missing items. Police eventually executed a search of the residence of Maggie Britnell, the mother of Codefendant Britnell. At the residence, officers found a number of Mr. Ingram's missing items. Defendant arrived at the Britnell home while the officers were executing the search and was taken into custody.

         At the time of his arrest, Defendant was in possession of a six-shot Ruger Superhawk .44 Magnum pistol with five rounds in the cylinder and one round missing. At the police station, Defendant initially signed a waiver of rights form and agreed to speak with officers. When Defendant learned he was being accused of murder, he asked for an attorney. The officers immediately ceased the interview. Within seconds, ...


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