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State v. Patterson

Supreme Court of Tennessee, Nashville

November 30, 2017

STATE OF TENNESSEE
v.
KEVIN PATTERSON AKA JOHN O'KEEFE VARNER AKA JOHN O'KEEFE KITCHEN

          Session October 11, 2017

         Appeal by Permission from the Court of Criminal Appeals Circuit Court for Coffee County No. 41631F Walter C. Kurtz, Sp. Judge, sitting by designation

         We granted this appeal to determine whether deficiencies in the State's timely filed notice of intent to sentence the defendant to life imprisonment without the possibility of parole as a repeat violent offender entitle the defendant to relief via the plain error doctrine. We conclude that, although imperfect, the timely filed notice fairly informed the defendant of the State's intent to seek enhanced sentencing and triggered the defendant's duty to inquire into the errors and omissions. Furthermore, the defendant has failed to establish that the deficiencies in the notice adversely affected his substantial rights-a necessary criterion for obtaining relief via the plain error doctrine. Accordingly, we reverse in part the Court of Criminal Appeals' judgment, insofar as it set aside the defendant's sentence of life without parole and remanded to the trial court for resentencing, and we reinstate the judgment of the trial court in all respects.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed in Part; Judgment of the Trial Court Reinstated

          Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Brent C. Cherry, Senior Counsel; and Craig Northcott, District Attorney General, for the appellant, State of Tennessee.

          John E. Nicoll, District Public Defender (on appeal); and Daniel Marshall, Nashville, Tennessee (at trial), for the appellee, Kevin Patterson aka John O'Keefe Varner aka John O'Keefe Kitchen.

          Cornelia A. Clark, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

          OPINION

          CORNELIA A. CLARK, JUSTICE

         The only issue in this appeal is the sufficiency of the notice the State provided to the defendant, John O'Keefe Varner, [1] of its intent to sentence him as a repeat violent offender to life imprisonment without the possibility of parole under the three strikes law. Tenn. Code Ann. § 40-35-120(i)(2) (2014 & 2017 Supp.). Therefore, we forgo a detailed recitation of the proof offered at trial to support the defendant's convictions of attempted second-degree murder, aggravated assault, and being a felon in possession of a firearm and recite the following summation for context.

         The victims, Brandi Frazier and Scott Wilfong, visited their friend Donald Brewer in early February 2013. Mr. Brewer lived near the defendant, and the defendant's girlfriend drove Ms. Frazier to a liquor store in the defendant's truck. When they returned, the defendant pulled his girlfriend from the vehicle by her hair and struck her. Ms. Frazier got out of the truck, shouting and cursing at the defendant. Ms. Frazier and Mr. Wilfong had never met the defendant before that day. The defendant approached Ms. Frazier in an aggressive manner with his arm raised, and she hit him twice on the side of his head with a bottle of rum to stop his advance. Mr. Wilfong then intervened, and he and the defendant exchanged angry words, but the altercation ended when Mr. Wilfong and Ms. Frazier returned to their friend's nearby home. The entire incident lasted only five or ten minutes, and Mr. Wilfong gave it little thought afterwards, believing everything had calmed.

         Mr. Wilfong's belief proved incorrect. On February 9, 2013, Mr. Wilfong and Ms. Frazier visited the home of J.D. Martin and Heather Gilbert to talk about ways to raise bail money for their mutual friend, Mr. Brewer, who had been arrested and jailed. During their visit, Mr. Brewer's estranged wife, Natalie Brewer, and the defendant arrived uninvited at the home. Ms. Brewer, a longtime friend of Ms. Gilbert, entered the home without invitation, approached Ms. Frazier, who had called Ms. Brewer a snitch earlier in the day, and began swearing and behaving aggressively.

         According to Mr. Wilfong's testimony, the defendant remained outside but knocked on the door and told Mr. Wilfong they had "unfinished business." Interpreting the comment as a reference to the earlier argument, Mr. Wilfong went outside "prepared to fight, " believing from the defendant's tone that they "were probably about to be in a confrontation." Once outside, Mr. Wilfong, who was unarmed, saw that the defendant had a handgun. Inexplicably, Mr. Wilfong declared that he "wasn't scared of the gun" and "motioned toward [the defendant] as if to hit him." The defendant "leaned back and shot at the same time." The bullet struck Mr. Wilfong in the right hip. Both men "froze for a split second, " but when the defendant raised and aimed the gun a second time, Mr. Wilfong ran into the nearby woods.

         Hearing the gunshot, Ms. Frazier ran outside and saw the defendant standing and pointing the gun toward the woods. When the defendant turned the gun on her, Ms. Frazier retreated toward Ms. Gilbert's vehicle, which was parked nearby. The defendant lowered his weapon and ran past Ms. Frazier, striking her in the face as he passed with enough force to knock her over the hood of Ms. Gilbert's car. The defendant kept running, got into his truck, where Ms. Brewer was already waiting, and drove away from the scene.

         The victims called 911 not long after the incident, but the police were unable to locate the scene that evening and did not investigate until the next day. In March 2013, the Coffee County Grand Jury indicted the defendant with attempted first-degree murder of Mr. Wilfong and aggravated assault of Ms. Frazier. However, the defendant fled to Las Vegas, Nevada, after the incident, and he was not apprehended until a year and a half later.

         After his apprehension, on January 1, 2015, the State filed a document titled "Notice of Prior Convictions, " which stated:

The State of Tennessee by and through the Office of the District Attorney General, Fourteenth Judicial District, pursuant to [R]ule 609(a)(3) of the Tennessee Rules of Evidence and T.C.A. § 40-35-202(a) to give the defendant notice of the following convictions that the State will seek to introduce to impeach the defendant's testimony, and/or to enhance the defendant's punishment. The State of Tennessee also hereby gives notice to the defendant of its intent to seek to have him declared as a Repeat Violent Offender pursuant to T.C.A. § 40-35-120:

Date

Conviction

County, State

12/28/1985

THEFT

CALIFORNIA

02/10/1987

POSS OF FIREARM

CALIFORNIA

03/20/1987

CONSPIRACY

CALIFORNIA

07/04/1990

AGG ASSAULT

SHELBY CO., TN

01/24/1992

FAC 2ND DEGREE MURDER

SHELBY CO., TN

08/26/1993

POSSESSION OF WEAPON

SHELBY CO., TN

05/03/1994

2ND DEGREE MURDER

SHELBY CO., TN

         In April 2015, a superseding indictment was issued charging the defendant with attempted first-degree murder of Mr. Wilfong, aggravated assault of Ms. Frazier, and being a felon in possession of a firearm. The defendant's trial occurred July 14-16, 2015. At the beginning of the trial, the parties entered a written stipulation that the defendant had been convicted in Haywood County prior to February 2013 of a felony involving the use of force, violence, and a deadly weapon, and that the conviction prohibited the defendant from possessing a firearm. The State relied upon this stipulation to prove the charge that the defendant ...


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