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Johnson v. State

Court of Criminal Appeals of Tennessee, Knoxville

February 8, 2018

MAURICE JOHNSON
v.
STATE OF TENNESSEE

         Appeal from the Criminal Court for Bradley County No. 12-CR-554 Don R. Ash, Senior Judge

         Maurice Johnson ("the Petitioner") appeals the Bradley County Criminal Court's denial of post-conviction relief from his convictions of three counts of first degree felony murder, for which he was sentenced to life without parole. On appeal, the Petitioner contends that he was denied the effective assistance of counsel based on trial counsel's failure to: (1) adequately investigate potential witnesses; (2) adequately investigate two witnesses who testified at trial; (3) prepare the Petitioner for testimony; (4) object to irrelevant and prejudicial evidence relating to the Petitioner's drug dealing and "the Sweetwater fight"; (5) question co-defendant Twanna Blair about her statement to police that the perpetrators were white men; and (6) adequately protect the Petitioner's appellate rights. The Petitioner asserts that he is entitled to relief based on these claims individually and based on the cumulative effect of these errors. The Petitioner additionally asserts that the post-conviction court erred by denying relief "in the face of structural error." Following a thorough review, we affirm the judgment of the post-conviction court.

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

          Joshua Hendrick, Knoxville, Tennessee, for the appellant, Maurice Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior Counsel; Stephen D. Crump, District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         Trial

         This case arises from the 1999 shooting deaths of Orienthal James ("OJ") Blair, Cayci Higgins, and Dawn Rogers in Cleveland, Tennessee. State v. Maurice Johnson, No. E2010-01142-CCA-R3-CD, 2011 WL 3586557, at *1 (Tenn. Crim. App. Aug. 16, 2011), perm. app. denied (Tenn. Dec. 14, 2011).[1] Following an investigation spanning nine years, the Petitioner and two co-defendants, Michael Younger and Twanna "Tart" Blair, were indicted for conspiracy to commit especially aggravated robbery, especially aggravated robbery, and three counts of first degree felony murder.[2] Id. The co-defendants' cases were severed, and the State filed a notice of its intention to seek the death penalty as to the Petitioner. Id. The Petitioner proceeded to trial first, in August 2009, with the Honorable Amy Reedy, former Judge of the Criminal Court for the Tenth Judicial District, presiding at trial.[3] Id.

         On direct appeal, this court summarized the facts presented at trial as follows:

On the morning of February 14, 1999, Twanna Blair placed a call to Bradley County 911, informing them that she had been shot and that three other people had been killed. Officers responded to the scene, a townhouse in Cleveland, and discovered three victims lying on the living room floor. Emergency personnel rendered aid to Twanna Blair, who was found in the upstairs of the townhouse. The three victims were all deceased as a result of gunshot wounds to the head and/or neck.
Eric Hampton was a detective with the Cleveland Police Department and was the lead investigator into the triple homicides for some time until he relocated to Alabama several years later. Upon arriving at the scene, Det. Hampton observed that the kitchen door had been forcibly opened and that there were items on the kitchen floor, including a knife, a cordless phone, and black wire "flex" ties. He further described the condition of the townhouse as follows: "There did not appear to be anything disarrayed or ransacked, . . . and upstairs was pretty much, if I can remember correctly, several bedrooms and nothing gone through or looked to be ransacked as well."
Raymond DePriest, formerly with the Tennessee Bureau of Investigation ("TBI") and employed with the Nashville Police Department as the Forensic Quality Assurance Manager at the time of trial, testified that, at the end of processing a crime scene, the TBI "always" conducted a search for contraband. Agents look "through every drawer, every cabinet in the house, . . . go through the washer and dryer just looking for any evidence that may be present[.]" After searching the Cleveland townhouse, agents did not find any evidence of controlled substances being present in the residence.
TBI Special Agent Luke Mahonen, a detective with the Cleveland Police Department at the time of the murders, testified that, on February 14, 1999, he responded to the triple homicide call and shot the initial crime scene video. Agent Mahonen described what he would typically look for at a crime scene: "One would have looked for items of value missing, items of value being present, ways that entry could have been made, whether the doors were locked or unlocked, signs of struggle, wallets, purses, things of that nature, currency, jewelry, things of value." When asked if he recalled finding any money at the scene, Agent Mahonen replied, "I don't recall, no."
The TBI sent a mobile crime scene unit to the townhouse to collect any possible forensic evidence. Agents recovered numerous items from the residence: clothing found at the top of the stairs belonging to Twanna Blair, wire ties, a cordless phone, a kitchen knife, a beer bottle near the back door, a "latch plate" from the back door, a fired .22 caliber bullet, fired and unfired .22 caliber cartridge cases, and a 9mm caliber bullet. DNA testing on blood samples recovered from inside the house revealed that the three victims or Twanna Blair were the sources of the samples. Only one unidentified sample was found inside the house, DNA present on a stamp, and it was never matched to anyone.
As result of the ensuing investigation, officers learned of an altercation between the [Petitioner] and OJ Blair just two days prior to the murder. Tamara Rhea testified that, on the evening of February 12, 1999, she threw a party at her residence in Sweetwater and that about 100 people were in attendance.
Reginald Constant, OJ's cousin, testified that he was in custody being held as a material witness and that he had no criminal charges. Mr. Constant stated that he was at the February 12 party in Sweetwater, where he saw OJ Blair and the [Petitioner] involved in an altercation. Mr. Constant and several others "broke up" the fight. While standing in the yard, the group heard gunshots. According to Mr. Constant, the [Petitioner] then pulled out his gun and pointed it toward the porch. Mr. Constant said to the [Petitioner], "No, man it ain't even worth it, " to which the [Petitioner] replied, "You are going to let them shoot at me and I can't shoot back." Mr. Constant responded, "Man, that's my cousin." The [Petitioner] then got in his vehicle and left. Mr. Constant stated that he was never afraid of the [Petitioner] because he had known the [Petitioner] for nineteen years and did not think he would shoot him. After the [Petitioner] left, Mr. Constant also left the party before the police arrived.
Charles Brewster, Jr., was also in custody, being detained for the purpose of testifying at the [Petitioner's] trial. Mr. Brewster was likewise in attendance at the February 12 party, where he witnessed two females get into a physical altercation. Mr. Brewster testified that he saw the
[Petitioner] and OJ Blair get into a verbal argument, overhearing the two men doing a "bunch of cussing[.]" When he again saw the [Petitioner] on Saturday afternoon following the party, the [Petitioner] said to him "[t]hat he had handled the situation. He retaliated and handled the situation."
Desmond Deane Benton also testified about his recollection of the February 12 party. He recalled that the [Petitioner] and OJ Blair were "in each other's face. They was [sic] arguing and then all of the sudden they grabbed each other and they rolled out the front door off the porch onto the concrete, the driveway . . . . They started fighting and then shots broke out." According to Mr. Benton, when the shots were fired, everybody ran. Mr. Benton opined that OJ Blair was winning the fight.
Mr. Benton left the party and went to his girlfriend's house. Sometime later that evening, he returned to Tamara Rhea's apartment and saw Michael Younger at the trunk of his car, loading bullets into the clip of a black handgun. Mr. Benton stated that he had never seen the [Petitioner] with a gun.
After shots were fired at the party, officers were called to the scene, which, according to Officer Kenny Wilkins with the Sweetwater Police Department, was known for its drug activity. As Officer Wilkins was traveling to the scene, he encountered Ke[rr]y Rogers, who had been shot at the party. Officer Wilkins stayed with Mr. Rogers until emergency personnel arrived to assist him. Despite a lengthy investigation, no one was ever charged with Mr. Rogers' shooting.
While Officer Wilkins waited with Mr. Rogers, other officers continued to the scene "where the party had taken place." Once at the party, the officers arrested the [Petitioner] and took him to the local jail for questioning.
On February 14, 1999, around 2:00 a.m., Stacy Ann Clabough left The Party Zone, a club in Chattanooga, after Twanna Blair, OJ Blair, and Dawn Rogers failed to meet her there. When she returned to Cleveland, she went by the victims' townhouse to see why they had failed to attend. She knocked on the front door, and Twanna Blair answered. Twanna Blair told her that everyone was asleep, so Ms. Clabough returned to her car and left. As she was leaving the complex, she heard "a noise or something" that "caught [her] attention[.]" She turned to see someone sitting inside a dark, maroon vehicle. While she did not know the [Petitioner] at that time, she was able to later identify him as the man inside the car; she claimed she was able to remember the [Petitioner's] face due to the "shock." At the time of trial, Ms. C[la]bough was incarcerated for violating her probation on a prescription fraud conviction. Ms. Clabough also admitted that she had given several inconsistent statements to the authorities, that she had two forgery convictions, and that she had a tattoo commemorating OJ Blair's birth date.
Amy Lonas and the [Petitioner] were in "a friend with benefits relationship" in February 1999. Ms. Lonas, then eighteen years old, stated that, on the evening of the 12th, she was present at the party with the [Petitioner] and Michael Younger. She testified that she saw the [Petitioner] with a gun that evening and, according to Ms. Lonas, the [Petitioner] "always had a gun." When OJ Blair and Twanna Blair arrived at the party, the [Petitioner] said to Ms. Lonas, "They could die right there." Ms. Lonas and others told the [Petitioner], "No, don't do nothing like that." Ms. Lonas, who was underage and drinking and doing "a lot" of drugs, went back inside the house. After she heard gunshots, she left the party to avoid the police and returned to her apartment that she shared with Tiffany Gray.
At approximately 2:00 a.m. on February 13, the [Petitioner], Michael Younger, and Jason McGaughey came to Ms. Lonas' apartment. All of the men were intoxicated, and Younger hit the front door so hard it fell off the hinges. Ms. Lonas stated that her apartment complex was "run down" and that the door was not in good condition at the time. Ms. Lonas became upset because she did not want to have to tell her roommate about the door. Mr. McGaughey stayed to fix the door.
According to Ms. Lonas, the [Petitioner] was agitated while he was at her apartment, and the men stayed approximately one and [a] half to two hours. While there that morning, Ms. Lonas and the [Petitioner] engaged in conversation. When discussing where the [Petitioner] was headed once leaving her apartment, he said that "he was going to get his money back." Ms. Lonas then asked the [Petitioner] "how much dope did you front him." The [Petitioner] replied that "it was none of [her] business." The men left the apartment on foot. The following day, February 14, Ms. Lonas learned of the triple homicide from the television news.
Around 7:00 or 8:00 a.m. on February 15, Ms. Lonas was taking out her trash, when she saw the [Petitioner]. Although the [Petitioner] was hostile, they again engaged in conversation. Ms. Lonas was upset with the [Petitioner] because he had been having sex with another woman. When talking about where he had been, the [Petitioner] said that "he had took care of it, . . . that he went to go get his money back, . . . he had done something real bad, . . . he was going to have to go away for a little while." The [Petitioner] described his arrival at the townhouse to Ms. Lonas: "Twanna knew he was coming, they knocked on the door like the police to get in the door, . . . that it was only OJ in that house." According to the [Petitioner], OJ pulled a gun on him first so he had to shoot in "self-defense." The [Petitioner] told Ms. Lonas that OJ was alive when he left the apartment and that, afterwards, he threw his gun in the Loudon County rock quarry. The [Petitioner] warned Ms. Lonas that she should "never tell anybody anything" about what he had told her or he would kill her. The two got into "an irate argument" and decided to no longer be friends. Ms. Lonas agreed to never tell anyone about what the [Petitioner] had told her.
Ms. Lonas admitted that she had criminal convictions for criminal impersonation in 1998 and shoplifting in 1999. According to Ms. Lonas, she had since "changed [her] whole life" beginning in 2006. Ms. Lonas stated that she was now in college, studying medical assistance and medical billing, and had been a Certified Nurse's Assistant for the past three years. The police "found" her in 2006, and she then told the truth about what she knew about the murders. However, on cross-examination, Ms. Lonas acknowledged additional convictions for passing a worthless check and leaving the scene of an accident in 2006 and a simple possession charge in 2008.
Ranessa Macon testified that the [Petitioner] visited her on Sunday morning February 14. He woke her up, asked her to sit on the couch, and told her he had killed someone. After hearing the news, the [Petitioner] and Ms. Macon just stood in the middle of the room and hugged each other. She did not ask any further questions of the [Petitioner] about what he had done. She admitted that, back in 1999, she was "using drugs pretty heavily[.]"
Tamara Rhea spoke with the [Petitioner] a few days after the shootings, and the [Petitioner] was apologetic about fighting at Ms. Rhea's party. Ms. Rhea asked the [Petitioner] about the shootings, inquiring, "Did you have anything to do with that?" The [Petitioner] jokingly said, "You never know."
Approximately a week or two prior to the party in Sweetwater, the [Petitioner] told Analesha Harper that he had been beaten and robbed, but he did not know the perpetrator. The [Petitioner] again visited Ms. Harper sometime after the February 12 party. He told her that an altercation happened at the party, that OJ Blair "was there, " and that he was drunk at the time. According to Ms. Harper, the [Petitioner] did not know who robbed him a few weeks prior to the party in 1999.
The [Petitioner] again visited Ms. Harper in early 2006 and, according to Ms. Harper, the [Petitioner] was upset because the television news had linked him to the murders. When Ms. Harper was asked if the [Petitioner] ever told her at a later date "who he thought had something to do with" the robbery that happened just a week or two prior to the party, she replied, "When I asked him about the murders he was like the guy OJ remember, that was the guy that I had the fight with[.]" Ms. Harper asked the [Petitioner] if he had anything to do with the murders, and he told her "no." Ms. Harper stated on cross-examination that she did not believe the [Petitioner] ever knew who robbed him in 1999.
Vanessa Latham testified that, in February 1999, she was having a relationship with the [Petitioner], that they "messed around for a long time." Ms. Latham was in attendance at the party at Tamara Rhea's house. Ms. Latham caught the end of the fight between OJ Blair and the [Petitioner]. To Ms. Latham, it looked like OJ Blair was "whipping" the [Petitioner]. When she heard gunshots, she went to a neighbor's house.
After the murders, Ms. Latham talked with the [Petitioner] in "Jake's parking lot"; they were "just chilling[.]" The [Petitioner] asked Ms. Latham if she knew "that guy from Cleveland, " to which she responded affirmatively, and the [Petitioner] then said "we did that." Ms. Latham became upset because she had heard that one of the girls was pregnant. After she got upset, the [Petitioner] said that "the fucking bitch shouldn't have had her ass there[.]" He then threatened to kill Ms. Latham if she ever told anyone about what he had told her. Ms. Latham stated that she did not believe the [Petitioner] about the killings, that she did not know him to be a bad person, and that she did not know "if he was joking around or not."
Several years later, Ms. Latham was contacted by the police. She claimed that the authorities were threatening to put her in jail and take her kids away if she did not cooperate, so she agreed to make a recorded phone call to the [Petitioner]. Detective Duff Brumley of the Cleveland Police Department, who had taken over the investigation of the triple homicides after Det. Hampton's departure, was present when Ms. Latham placed the call to the [Petitioner]. According to Det. Brumley, in the first phone call, the [Petitioner] was "very reluctant to speak, was evasive, and asked Ms. Latham to go to a pay phone and call him or to a secure phone because he was afraid that his phone had been wire tapped." They then went to a pay phone, and Ms. Latham again phoned the [Petitioner]. A recording of this call was played for the jury. During the phone call, the [Petitioner] stated, "Now, Vanessa, listening [sic] to what I'm saying. Regardless of what me and you talked about nobody is going to know but me and you. Do you understand that?"
Stacy Marvin King testified that he had known the [Petitioner] since they were teenagers. Mr. King was incarcerated at the time of trial and had been since March 2006. Mr. King testified that, in February 2006, he was on his way home from work, when he stopped at an Applebee's restaurant in Athens to eat. There he saw the [Petitioner], and the two men spoke about the triple homicides in Cleveland in February 1999. According to Mr. King, the [Petitioner] was "agitated with regard to the talk on the streets." The [Petitioner] said to Mr. King that "he wanted to resolve a problem he had, which was an individual still being alive and talking about events surrounding the murder." That individual was Twanna Blair.
While talking at Applebee's, the [Petitioner] described the murders to Mr. King. The [Petitioner] told him that, upon entry into the residence, he fired a shot at OJ Blair, killing him. The [Petitioner] continued, "[W]e heard a noise upstairs, we got the individuals upstairs, " and "they were shot with the intent of not leaving anyone alive[.]" According to Mr. King, the [Petitioner] stated that his "negative situation . . . was only going to get worse" if he "didn't take out Ms. Blair[.]"
Mr. King acknowledged that he had been incarcerated many times; his current incarceration due to a federal firearms charge. He had multiple convictions for selling cocaine and firearm possession and had violated his probation several times. Mr. King confirmed that the federal prosecutor had filed a "5K1" motion on his behalf, stating that Mr. King had provided "substantial cooperation." Upon this motion, a federal judge can reduce a defendant's sentence.
Mark Blair testified that he was locked up in the Monroe County Jail in February 1999. He testified that he spoke with the [Petitioner] by telephone during that time, and the [Petitioner] told him "that he had killed some people." On another occasion, he and the [Petitioner] were walking around the track at the jail and talking, and the [Petitioner] informed him that, when he got out of jail, he was going [to] "put down a demo[.]" Mark Blair replied, "When you get out, . . . them youngsters ain't going to let you come out there and regulate or nothing." The [Petitioner] then said, "I ain't worried about what them youngsters think, . . . if they get in the way I will do them just like me and Money did down in Cleveland." According to Mark Blair, Michael Younger was also known as "Money." The [Petitioner] extrapolated to Mark Blair that he "handled the matter in Cleveland" after getting into a fight with OJ Blair at a party in Sweetwater. Mark Blair acknowledged that he had [a] significant criminal history, including convictions for firearm possession, selling cocaine, aggravated assault, and evading arrest. He stated that he contacted the authorities with this information and confirmed that he did hope to receive some favorable treatment based on his cooperation.
In 2001, Agent Mahonen began working with the TBI. Agent Mahonen obtained a wiretapping order for the [Petitioner's] cellular phone, and he had recorded over 300 of the [Petitioner's] telephone calls. Agent Mahonen selected one phone call in particular to play for the jury; it was an incoming call, placed from Jewelry Television, Incorporated, made on February 14, 2006, at 10:47 a.m. Agent Mahonen believed that the [Petitioner] was convicted of federal drug charges based upon information obtained during the wiretap of the [Petitioner's] phone. Agent Mahonen also agreed that, on more than one occasion, the [Petitioner] gave blood samples, hair samples, and fingerprints to the authorities.
In the years after the murders, TBI Special Agent Terry Arney, an expert in firearms identification, had been unable to match the cartridge cases or bullets from the scene to any particular weapon. Testing continued as late as 2007.
Following testimony from twenty-five witnesses, the State concluded its proof. The [Petitioner] then made a motion for judgment of acquittal on all counts. The court dismissed the conspiracy charge, but the other counts were to be submitted to the jury. The [Petitioner] then submitted proof in his defense.
Jason Juan McGaughey testified on behalf of the [Petitioner]. He confirmed that he had drug convictions and a criminal history spanning approximately eighteen years. Mr. McGaughey testified that he did not attend the party in Sweetwater. He did recall a visit to Ms. Lonas' apartment when he "messed her door up and she was tripping about her friend was going to put her out because the door was messed up." McGaughey testified that he was accompanied by Michael Younger, but the [Petitioner] was not with him on that occasion. Mr. McGaughey fixed the door, and they left.
The [Petitioner] testified and gave his version of the events. He admitted that, at the time of the murders, he sold drugs and had sexual relationships with a lot of women. The [Petitioner] denied any involvement in the murders.
According to the [Petitioner], he supplied the alcohol for Tamara Rhea's party on the evening of February 12, 1999. He did not take his gun to the party, and he did not know OJ Blair prior to the party. He had heard that some "people from Cleveland had arrived at this party[.]" The [Petitioner] claimed he was watching two women fight when someone punched him in the back of the head. He turned to see three or four people hitting him and, as he was attempting to ward of the blows, the fight moved into the yard. One person "just kept coming" at him. Someone then fired a gun, and his attacker ran into the house. He did not recognize any of the men who attacked him.
The [Petitioner] was arrested after officers arrived at the scene of the party, and he was transported to the police station. Officers tested his hands for gunshot residue but did not find any, and the [Petitioner] was never charged with any offense connected to the party. After being released from the police station, the [Petitioner] walked to the hospital to see who had been shot. A lot of people from the party had gathered at the hospital, and he learned Kerry Rogers was the individual who had been shot. The [Petitioner] and others waited until Mr. Rogers was released from the hospital. The [Petitioner] then returned to the party, which had moved "two doors down from where the party" had originally begun. He drank and talked with people for two to three hours following his return.
The [Petitioner] testified that, after the killings, he gave two statements to the police. When the police questioned him a third time, he refused to cooperate. He confirmed that, several years later, he was in federal prison with Mark Blair and that they talked "all the time." The [Petitioner] denied ever making any incriminating statements to Mark Blair. After his release from federal custody, he did give a third statement to police. He also gave his fingerprints and DNA sample to authorities.

Id. at *1-8. After a jury trial, the Petitioner was convicted of three counts of first-degree felony murder and one count of especially aggravated robbery, and he was sentenced to life without the possibility of parole for each of the felony murder convictions and to twenty-five years for especially aggravated robbery. Id. at *1. This court affirmed the Petitioner's convictions and sentences for first degree felony murder but reversed and dismissed the especially aggravated robbery conviction. Id. Thereafter, the Tennessee Supreme Court denied the Petitioner's application for further review.

         Defendant Younger's case

         In order to put a number of the Petitioner's post-conviction issues into proper context, we must also consider the procedural history in co-defendant Michael Younger's case. Defendant Younger's trial began in May 2010. On July 17, 2010, Defendant Younger filed a Motion for Interlocutory Appeal in this court. In granting Defendant Younger's Motion for Interlocutory Appeal, this court explained:

Prior to and during trial, [D]efendant [Younger] filed two motions to dismiss the indictment, arguing prosecutorial misconduct in the form of Brady violations. One of the violations concerned the State's failure to turn over evidence of a State's witness, Anita Wilson, facing multiple charges for check fraud. The trial court found that violation egregious enough to order defense counsel to report the prosecutors to the Board of Professional Responsibility and the prosecutors to self[-]report the violation. Nevertheless, the court denied the [Defendant Younger's] motion to dismiss the indictment. As trial progressed, the State, on redirect examination, asked a witness, Pam Upton, a question about [Defendant Younger] being a "drug dealer, " which question had been specifically prohibited by the trial court prior to trial during a Rule 404(b) hearing. When [Defendant Younger] objected, the prosecutor admitted he "decided" to ask the question based upon the defense's cross[-]examination of the witness. [Defendant Younger] again requested the trial court dismiss the indictment. The court recognized the State's error but refused to dismiss the indictment. At that point, [Defendant Younger] requested a mistrial, arguing that the defendant had been "goaded" into making the request by the State's continued bad behavior. The trial court found that the "improper testimony [about Defendant Younger's and the Petitioner's drug dealing] was directly solicited by the [S]tate's question" against the trial court's ruling prohibiting that line of questioning. The court further noted that there was little proof in the record linking [Defendant Younger] with the crime. The court found that a curative instruction would be insufficient to mitigate the error, stating, "I can't put the prejudicial proof back in the mouth of the witness." Accordingly, the trial court granted [Defendant Younger's] motion for mistrial.

See State v. Michael Younger, No. E2010-01541-CCA-R9-DD (Tenn. Crim. App. Oct. 11, 2010) (order granting interlocutory appeal).

         In late June 2010, the State informed Defendant Younger's attorneys about an investigation into improper actions by Detective Duff Brumley.[4] The actions which led to the investigation and, ultimately, Detective Brumley's firing were unrelated to the instant case. However, a letter from the District Attorney's Office to Defendant Younger's attorneys also referenced the following:

In an unrelated matter, and in light of these recent events, I must also relate to you a conversation that I had with Detective Brumley some weeks before our 404(b) hearing in Bradley County in this case. Detective Brumley contacted me late in the evening and informed me that he had some really great news. He said that he had been talking with a "little birdy, " and he knew how we could get into evidence a person's prior statement, even if they now claim memory loss. I knew of no such extant rule of evidence that would allow us to do so. Detective Brumley told me the exact Rule of Evidence number and subpart, read it to me, and explained that it was a brand new Rule of Evidence. He further said that his "little birdy" said she did not know why the State had not sought to use this new Rule of Evidence in the State's previous cases, as it had been passed prior to that trial. He said at the time that she did not give him the Rule number, but that she said it was a new rule and the only significant new rule passed that year. From there, Detective Brumley stated that he looked it up on the web search engine Google. Although Detective Brumley would not tell me the name of his "little birdy" friend who gave him this information, he did reveal that it was a female who was intimately aware of the state's case, all motions that had been filed by the state, all motions that had not been filed by the state, and who was aware of the passage of new Rules of Evidence.

         Following these revelations, the State filed a Motion to Enter Nolle Prosequi ("Motion to Nolle") in Defendant Younger's case on October 19, 2010. The State's motion alleged:

1. The prosecuting officer in this case, [Detective] Duff Brumley, is currently under investigation for actions taken in his official capacity as a Cleveland Police Department officer. [Detective] Brumley has been terminated from his employment by the Cleveland Police Department.
2. In the course of the current investigation of [Detective] Brumley, three prior instances have been found which call into serious question [Detective] Brumley's credibility as a witness.
3. The first instance involved a prior homicide investigation wherein [Detective] Brumley testified under oath that he turned over recorded statements of a suspect directly to an Assistant District Attorney General. However, in subsequent interviews, [Detective] Brumley gave inconsistent answers about who received the recorded statements. Ultimately it was determined that [Detective] Brumley did not give the recorded statements directly to an Assistant District Attorney General as he claimed under oath.
4. The second instance involved a federal court [c]ase, United States v. Tiffany Little, wherein Magistrate Judge Carter in a written -- opinion detailed numerous inconsistent statements made by [Detective] Brumley in his sworn testimony. These inconsistent statements included material facts that were important to a fair determination of the issues in the case and ultimately resulted in Magistrate Carter finding that he could place no confidence in the accuracy of [Detective] Brumley's memory. The case was subsequently dismissed.
5. In the current case, Anita Wilson, a key witness, has given a statement to counsel for the defense that [Detective] Brumley coerced her into claiming that [Defendant] Younger confessed to the murders. Counsel for the defendant brought this to the State's attention along with the fact that Ms. Wilson was held on a fugitive from justice warrant at [Detective] Brumley's direction. Subsequent investigation has found that Ms. Wilson was in fact held on a fugitive from justice warrant even though she was not wanted in another state. Her detention on a fugitive from justice charge was illegal. It certainly could be inferred that the illegal detention was intentional to give [Detective] Brumley additional leverage in taking the coercive actions that Ms. Wilson now maintains happened.
6. Ms. Wilson had given a prior statement in 2004 to Lieutenant Mark Gibson of the Cleveland Police Department. In that statement, Ms. Wilson makes no mention whatsoever of [Defendant] Younger confessing to the crimes in question. The presence of this prior inconsistent statement lends credence to Ms. Wilson's claims that she was coerced to give her latest statement incriminating [Defendant] Younger.
7. Following the previous trial of [Defendant] Younger which ended in a mistrial, [Detective] Brumley returned several pieces of evidence to the Cleveland Police Department. Rather than return the items to the evidence room as he should have done, [Detective] Brumley left the items in his office which was not locked. As such, the chain of custody is irrevocably broken as to those items.
8. The State of Tennessee cannot in good faith call [Detective] Brumley to the stand to testify in this matter as his credibility as a witness has been severely compromised.
9. Finally, and most disturbing, is approximately one hundred and seventy-one (171) telephone calls between [Detective] Brumley and Judge Amy Reedy, the presiding judge, during the time this case was progressing through the court system. A ...

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