Court of Criminal Appeals of Tennessee, Nashville
Session February 14, 2017
from the Circuit Court for Montgomery County No. 40700673
William R. Goodman, III, Judge
Stephano Lee Weilacker, was found guilty by a Montgomery
County jury of especially aggravated kidnapping and
aggravated robbery. He received an effective twenty-year
sentence to be served consecutively to a previous sentence.
In this, Defendant's third direct appeal, he argues: that
the evidence was insufficient; that the trial court permitted
a reversible constructive amendment to the indictment; that
the trial court erred by failing to instruct the jury as
provided by White; that the trial court erred by
denying his motion to suppress evidence found in his vehicle;
that the State committed prosecutorial misconduct during
closing arguments, and that consecutive sentencing was
improper. We find that all of Defendant's issues, except
for the issues concerning the amendment to the indictment and
the jury instruction, have been previously addressed by this
court in Defendant's two prior appeals and cannot be
reconsidered. We find that the issue concerning the
indictment is waived and that the trial court was not
required to instruct the jury in accordance with
White. Therefore, Defendant's convictions are
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Richard C. Strong, Nashville, Tennessee, for the appellant,
Stephano Lee Weilacker.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; John Wesley Carney, Jr.,
District Attorney General; and Robert Nash, Assistant
District Attorney General, for the appellee, State of
T. Woodall, P.J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
T. WOODALL, PRESIDING JUDGE.
Defendant's third direct appeal in this case. The facts
of this case, as found by this court in Defendant's first
direct appeal, State v. Stephano L. Weilacker, No.
M2010-00497-CCA-R3CD, 2011 WL 743416, at *1-2 (Tenn. Crim.
App. Mar. 3, 2011), which will be referred to as
Weilacker I, are as follows:
On June 30, 2006, the Triangle Kwik Stop in rural Montgomery
County was staffed by Brandi Perry. Ms. Perry observed two
young men come into the store. One of them was armed with a
pistol. The man pointed the gun at her, then pointed the gun
at Frank Lavarre, a vendor who was stocking a display at the
store. The man demanded money and cigarettes. He ordered Mr.
Lavarre to lie on the floor. Ms. Perry complied with the
request, handing over money and cigarettes. The man then shot
Mr. Lavarre in the leg.
The men left the market and jumped into the back of a large
white car. Ms. Sandra Lewis, who was shopping next door at
the Food Lion, saw two young African-American men leave the
market laughing and running. Ms. Lewis was alarmed by the
situation, so she wrote down the license plate number of the
car and called the police.
Several days later, Appellant and David Selby were arrested
while riding in Appellant's white Mercury Grand Marquis.
Police Officer Scott Beaubien initiated a traffic stop of
Appellant's vehicle. The weapon used in the Triangle Kwik
Stop robbery was found in the car. Mr. Selby's
fingerprints were found on the pistol.
Appellant, Jacobi K. Allen, and David Selby were indicted by
the Montgomery County Grand Jury for aggravated robbery and
especially aggravated kidnapping for their involvement in the
Triangle Kwik Stop robbery.
At trial, Mr. Selby testified that Appellant called him on
the day of the robbery and asked him to ride around with him
and to go buy some fireworks. Appellant was driving his white
Mercury Grand Marquis. When Mr. Selby got into the car, he
stated that there were two other younger African-American
males in the back seat. As the group passed the Triangle Kwik
Stop market, Appellant asked the men in the back seat if they
wanted to make a little money. Appellant told them what to do
and provided a pistol to the men. After the men robbed the
market, the money and cigarettes were divided between
Appellant and the two men. Mr. Selby admitted that his
fingerprints were found on the pistol that was used in the
robbery. He explained that when police initiated the traffic
stop of the vehicle, Appellant handed Mr. Selby the weapon.
Mr. Selby then handed the weapon back to Appellant, who
placed it under the seat.
Appellant presented the videotape from the store security
camera in support of his defense. The videotape showed that
the armed robbery was committed by two men other than
Weilacker I, at *1-2.
Weilacker I, Defendant argued that the evidence was
insufficient to support his convictions; that the trial court
failed to properly charge the jury with lesser-included
offenses; and that the trial court improperly ordered
consecutive sentencing. This court determined that the trial
court improperly ruled on an untimely motion for new trial.
This court noted that trial counsel had filed for an
extension to file the motion for new trial, but it was filed
more than thirty days after the entry of the judgments. This
resulted in Defendant's notice of appeal also being
sufficiency and sentencing issues were considered on the
merits. In his sufficiency argument, Defendant argued that
the accomplice testimony of co-defendant David Selby was not
sufficiently corroborated. This court summarized the
corroborating evidence and determined that the "jury
clearly determined that the evidence introduced at trial
corroborated Mr. Selby's testimony and independently
connected [Defendant] with the crimes." Id. at
*5. As for sentencing, this court found that the length of
Defendant's sentences of ten years for aggravated robbery
and twenty years for especially aggravated ...