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State v. Young

Court of Criminal Appeals of Tennessee, Knoxville

December 7, 2017

STATE OF TENNESSEE
v.
LISA KAY YOUNG Time P.M. Sender Recipient Message Content

          Assigned on Briefs June 27, 2017

         Appeal from the Criminal Court for White County No. CR-6528C David A. Patterson, Judge No. M2016-01149-CCA-R3-CD

         The Defendant, Lisa Kay Young, appeals as of right from her convictions for one count each of first degree premeditated murder, second degree murder, and aggravated assault. The Defendant contends (1) that the trial court erred by refusing to admit statements by Miranda Brown, one of the Defendant's co-defendants; and (2) that this court should vacate or merge the Defendant's convictions for second degree murder and aggravated assault with her conviction for first degree premeditated murder. Following our review, we conclude that the trial court erred in preventing the Defendant from admitting Ms. Brown's statements as evidence and that this error was not harmless. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial. With respect to the Defendant's remaining issue, we will address that issue so as not to pretermit it. See State v. Parris, 236 S.W.3d 173, 189 (Tenn. Crim. App. 2007) (following a similar procedure).

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

          Michael J. Rocco, Sparta, Tennessee, for the appellant, Lisa Kay Young.

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Phillip A. Hatch and Bruce MacLeod, 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 Robert L. Holloway, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         This case arises from the murder of the victim, Jill Farley, on February 9, 2014. The following day, Miranda Brown and Brian Logan were arrested for the victim's murder. The Defendant was arrested almost a year later on January 5, 2015, when police officers found incriminating text messages from February 9, 2014, on one of the Defendant's cell phones. The White County Grand Jury indicted the Defendant for one count each of first degree premeditated murder, first degree felony murder, and aggravated robbery. See Tenn. Code Ann. §§ 39-13-202, -402. The trial court addressed a motion in limine on April 25, 2016, and a jury trial began on April 26, 2016.

         Motion in Limine Hearing

         Prior to trial, the State filed a motion to exclude out-of-court statements made by Miranda Brown regarding the murder of the victim. The Defendant argued that there were portions of a statement Ms. Brown gave to police on February 10, 2014, that were exculpatory for the Defendant. These statements included Ms. Brown's assertions that, using the Defendant's cell phone, she contacted the victim and set up a meeting with her on February 9, 2014. Furthermore, Ms. Brown told the investigating police officers that the Defendant was not involved in the events that transpired on February 9, 2014.

         Ms. Brown was called to testify. However, she invoked her right under the Fifth Amendment to remain silent. The trial court determined that Tennessee Rule of Evidence 804 applied to these statements and that Ms. Brown was unavailable because "she [was] exempted on the grounds of privilege from testifying concerning subject matter of the declarant's statement." The trial court further explained that the pivotal issue was determining whether Ms. Brown's statements were a declaration against interest. The trial court concluded that Ms. Brown's statements were not statements against interest but rather inadmissible hearsay and ruled that the Defendant would not be able to admit these statements at trial.

         Jury Trial

         Kevin Friedberg testified that he was working as the manager of "the Dollar General on Roberts Matthews Highway on February 9, 2014." Mr. Friedberg said that he went outside into the parking lot around 7:45 p.m. that evening. As he walked around collecting carts, he noticed "a white vehicle parked right up front towards the store." When asked what else he observed, Mr. Friedberg stated,

When I looked in the direction of this vehicle, that's when I noticed a lot of commotion. There w[ere] three individuals in the vehicle, one in the driver[']s seat, one in the front passenger, and one in the back seat. The individual in the back seat was, there was a lot of movement, there was a lot of bouncing from directly behind the driver[']s seat to the middle of the back seat and then back and forth. That's what caught my attention, so I started to walk toward the vehicle. I then noticed that the person in the back seat with all the moving around actually was doing a swinging motion towards the person in the driver[']s seat. Overhead actual swinging. I could tell that that person was hitting the person in the driver[']s seat, so I continued to walk behind the vehicle. I walked towards the passenger side, but I was still in the rear. And at that point, the front passenger side door opened and a lady exited the car.

         Mr. Friedberg said that he "looked face to face" with the woman "for a brief moment." He explained that the woman he saw was "shorter than [he] was" and had "brownish blond" or "dirty blond" hair. After exchanging a look with this woman, Mr. Friedberg "decided to walk away from the vehicle back to [his] original standing position."

         Mr. Friedberg also said that he noticed a "van parked back into the parking lot[.]" Mr. Friedberg identified a photograph of the van he saw that evening, and it was entered into evidence. Mr. Friedberg said that after noticing the parked van, he began walking back towards the store. He stated,

I turned around and looked back towards the car to see what was going on at that point. At that time, the back driver[']s side door was open and there was a man exiting the car. He was standing with that door open. I saw him shut the door and walk around to the open door on the front passenger side.

         Mr. Friedberg described the man as having "short white hair" and "a brown Carhart[t] type jacket." Mr. Friedberg said,

I watched [the man] walk around the back of the vehicle to the passenger side. At that point I do remember someone reaching into the vehicle and that would have been like the front seat. And then that's when, I'm assuming I turned away at that point, because the next visual I have is those individuals have gone and the van is leaving the parking lot.

         When asked if he remembered the color of the van, Mr. Friedberg replied that it was "a light colored minivan." Mr. Friedberg stated that the van left the scene traveling "at a really fast speed." Mr. Friedberg went back inside the store and "tried to take an inventory of the people that were in the store, the customers." He explained that he wanted to determine "who had been in there long enough to maybe be partnered up to that white car, trying to see who was leaving, who wasn't[.]" Mr. Friedberg asserted that he "wasn't satisfied with letting it go [be]cause [he] didn't know anything else, but obviously [he] had seen something that . . . made [him] feel very uncomfortable."

         Mr. Friedberg testified that after being in the store for approximately fifteen minutes, he decided to walk outside and check on the white car again. He stood on the sidewalk near the front door of the store and observed that "the windows were fogged up, " and assumed that "whoever was in there" was okay because the fog on the windows indicated that the person was breathing. Mr. Friedberg returned to the store and continued "kind of watching people" inside. He said that after approximately forty-five minutes, the white car remained in the parking lot and he walked back outside. Mr. Friedberg said that he approached the vehicle and

saw the female that was in the front driver[']s seat, she was slumped over towards the door and I could see [the] side of her . . . head[, ] and it was covered in blood. There was blood trailing down her face and onto her shoulder.

         Mr. Friedberg said that he "realized it was indeed the worst" and returned to the store where he "had pinpointed somebody that was in the store the length of time that [he] could relate to the car being there." Mr. Friedberg told this woman what he had seen, and the two went outside to the vehicle. Mr. Friedberg explained that the woman began screaming the victim's name, that she opened the car door, and that he heard the victim make "a slight moan" and heard "a very definite gasp for air." Mr. Friedberg also testified that the woman told him that the woman's purse had been stolen. Mr. Friedberg then called 9-1-1.

         Officer Mike Honaker testified that he was employed with the Sparta Police Department and that he was working "in that official capacity on February 9[], 2014 into the late hours and February 10[], 2014 early morning hours." He said the other officers were "on [the] lookout for a green Plymouth minivan" and that they found the vehicle on "Bochman Way." Officer Honaker said that officers pulled over the van and that the van's driver "pulled in the Midway [M]otel." Officer Honaker said that he arrived at the motel at approximately the same time. He stated that the tag number on the van belonged to Miranda Brown. Officer Honaker said that he got out of his car and approached the van. He asked the driver, Brian Logan, to "step out of the vehicle" and detained him. Officer Honaker described Mr. Logan as "shorter" with "short sandy hair." He also said that Mr. Logan was wearing "light color overalls." Another man was in the "front passenger seat" of the vehicle with Mr. Logan. When asked if anyone else was present "at the scene that evening[, ]" Officer Honaker said that Ms. Brown and the Defendant "had come out of a motel room[.]"

         Agent Dan Friel testified that he was employed as a special agent with the Tennessee Bureau of Investigation (TBI). He explained that it was his duty to supervise crime scenes. Agent Friel said that he was working in that capacity on February 9, 2014, and that he responded to a crime scene at the Dollar General Store in White County. Agent Friel viewed a photograph of a "white Toyota Corolla" previously marked as an exhibit and identified it as the vehicle he found at the Dollar General Store on February 9, 2014. Agent Friel testified that he observed "a large amount of blood on the seat, on the back seat, in between the back seats, " and blood "around the . . . odometer, the speedometer, the front dash, and a little bit on . . . the roof of the vehicle." He also saw a "Motorola cellular phone" and "a purse" in the driver's seat. Agent Friel said that he found blood on the outside of the phone and that he was able "to access that phone" or "get into that phone so to speak." Agent Friel testified that he confirmed the phone belonged to the victim. Also, he determined that text messages had been sent from the victim's phone to telephone number 8572.[1] Agent Friel testified that the last text message sent from the victim's phone was at "[a]pproximately 7:47 p.m." and that the Defendant's name was on the screen as the contact to whom the text message was sent. Agent Friel also testified that after examining the blood spatter in the car and reviewing Mr. Friedberg's statement, he determined that the person who struck the victim was sitting "directly behind her in the vehicle." Agent Friel said that he obtained a swab of blood from inside the vehicle and determined that the blood belonged to the victim.

         Agent Friel also testified that during his investigation, he obtained a description "of the van that was seen leaving the [D]ollar [General S]tore parking lot." He said that it was "a dark colored minivan." Agent Friel also had the opportunity to "review surveillance images from the . . . gas station next to the Dollar [General] Store." Agent Friel said that on the surveillance video, he saw the victim's "white Toyota Corolla pulling into the Dollar General Store" at 7:44 p.m. After viewing a still photograph taken from the surveillance video, Agent Friel testified that the photograph depicted "a dark colored . . . Plymouth Voyager minivan backing into the parking area." Agent Friel then viewed a photograph of "that van . . . leaving the parking lot." He said that based upon the time stamps on the recording, "the minivan back[ed] into the Dollar General at 7:47 [p.m.]" and "le[ft] at 7:51 [p.m.]." Agent Friel said that the information he learned from the surveillance video was consistent with Mr. Friedberg's statement. Agent Friel said that it was approximately 4:00 a.m. when the minivan was "pulled over at the Midway Motel." Agent Friel traveled to the Midway Motel and saw "Brian Logan and [another man] sitting . . . on the ground" and "Miranda Brown and [the Defendant] standing in front of Room 19." He described Mr. Logan as "a little guy . . . probably five three, five four." Agent Friel said that Mr. Logan was "wearing some brown coveralls" and "a jacket" and had "short blond hair." Agent Friel also noticed that there were "little specks of blood . . . on his coveralls."

         Agent Friel testified that he spoke with the Defendant at the Midway Motel. He stated that the Defendant was located "in Room 19 of the Midway Motel[, ]" along with her children and Ms. Brown's children that evening. According to Agent Friel, the Defendant told him that she had been staying at the Midway Motel and confirmed that her "telephone number was . . . 8572." Agent Friel explained that he asked the Defendant about that telephone number "because [8572] was the last phone number that texted" the victim. Agent Friel testified that the Defendant informed him that she had a second telephone with the number 7566. The Defendant also told Agent Friel that she "didn't even know who [the victim] was" and that Ms. Brown "took her phone" with the 8572 number. The Defendant also told Agent Friel that Ms. Brown drove a "green Plymouth Voyager minivan."

         Agent Friel testified that during his investigation, he requested "the preservation of [the] cellular phone records." Specifically, he obtained records for telephone numbers 8572, which belonged to the Defendant, and 8213, which belonged to the victim. Agent Friel testified that he was also able to determine that the telephone number 6022 belonged to Ms. Brown. Using the records obtained from Verizon for February 9, 2014, Agent Friel created a spreadsheet containing text messages using those telephone records, and this was entered into evidence. The following chart depicts the content of these text messages[2]:

         Time Sender Recipient Message Content

Time P.M.
Sender
Recipient
Message Content

7:44

8572

Defendant's

phone

7570 Unknown

Midway room 19\n YERT !!

7:49

8572

Defendant's

phone

8213

Victim's

phone

I dont know what up with you but you need to answer me tell me sometim i got 800 dollar wish you could meet me\n YERT !!

7:50

8213

Victim's phone

8572

Defendant's

phone

Do u have the 260 u owe me

7:53

8572

Defendant's

phone

8213

Victim's

phone

Yeah i do and plus more all together now I have 1200 so i let you know when I on my way I am up mount rite now so I be a few\n YERT !!

7:54

8213

Victim's phone

8572

Defendant's

phone

Hurry cause I got to go to crissville

8:18

8213

Victim's phone

8572

Defendant's

phone

How long you gonna be

8:18

8572

Defendant's

phone

8213

Victim's

phone

Hour and half\n YERT !!

8:19

8213

Victim's phone

8572

Defendant's

phone

I see u when i get back then

8:23

8572

Defendant's

phone

8213

Victim's

phone

It may not be that long can you come this way now and my lady will meet you now please she got 1200 take off what ever and give her the rest\n YERT !!

8:28

8572

Defendant's

phone

8213

Victim's

phone

Let me know k she ready on way\n YERT !!

8:29

8213

Victim's phone

8572

Defendant's

phone

Meet me at dollar store by chevron. How long. I'm leaving now

8:30

8572 Defendant's phone

8213 Victim's phone

She be there in 10 her van\n YERT !!

8:37

6022

Ms. Brown's

phone

8572

Defendant's

phone

I think I should do this

8:38

8572

Defendant's

phone

6022

Ms. Brown's

phone

Ask him to make sure he can k and you just get out to talk to her yall talk about it and go from there\n YERT!!

8:40

6022

Ms. Brown's

phone

8572

Defendant's

phone

He got a hammer says he do it but look nervous

8:44

8572

Defendant's

phone

6022

Ms. Brown's

phone

K tell him do it fast\n YERT !!

8:46

8213

Victim's phone

8572

Defendant's

phone

Where u at

8:46

6022

Ms. Brown's

phone

8572

Defendant's

phone

Gettin off exit

8:46

8572

Defendant's

phone

8213

Victim's

phone

She fixin to pull up I tex her\n YERT !!

8:47

8572

Defendant's

phone

6022

Ms. Brown's

phone

She there let me know\n YERT !!

8:47

8213

Victim's phone

8572

Defendant's

phone

Who's she

8:52

6022

Ms. Brown's

phone

8572

Defendant's

phone

Done

8:53

8572

Defendant's

phone

6022

Ms. Brown's

phone

Oh lord yall did \n YERT !!

8:54

6022

Ms. Brown's phone

8572 Defendant's

phone

Yes. An I think she dead

8:56

8572

Defendant's

phone

6022

Ms. Brown's

phone

He can watch the kids while me and you run somewhere ok we give him sometim ok I tell him when yall get here are you ok \n YERT !!

8:59

6022

Ms. Brown's

phone

8572

Defendant's

phone

Yes mama I am

9:07

6022

Ms. Brown's

phone

8572

Defendant's

phone

Bout pull in


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