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State v. Richardson

Court of Criminal Appeals of Tennessee, Jackson

February 9, 2018


          Assigned on Briefs July 11, 2017

          Appeal from the Criminal Court for Shelby County No. 13-01971 Glenn Ivy Wright, Judge

         Following a jury trial, the Defendant, Stephan Richardson, was convicted of aggravated robbery, aggravated burglary, employment of a firearm during the commission of a dangerous felony, and unlawful possession of a handgun by a convicted felon. On appeal, the Defendant contends that (1) the trial court erred by failing to suppress his statement because the "officers unreasonably delayed booking [him] in order to" secure his statement and because his statement was involuntarily given; (2) his conviction for employing a firearm during the commission of a dangerous felony is invalid because the indictment failed to specify the predicate dangerous felony; and (3) the trial court erred by refusing to sever or bifurcate the unlawful possession of a handgun by a convicted felon offense from the other three counts, thereby, preventing him from receiving a fair trial.[1] Following our review, we affirm the Defendant's convictions for aggravated robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon. However, because the jury was charged with a nonexistent crime regarding the employment of a firearm during the commission of a dangerous felony conviction, we reverse that conviction and remand that count for a new trial.

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

          Brett B. Stein (at trial and on appeal) and Robert Golder (on appeal), Memphis, Tennessee, for the appellant, Stephan Richardson.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin E.D. Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Charles Summers III, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.




         This case arises from the November 29, 2012 home invasion of the residence of Candid Sanders ("the victim") and Darrell Peterson located in Memphis. Due to the Defendant's participation in the home evasion, a Shelby County grand jury returned a four-count indictment against the Defendant, charging him with aggravated robbery (count one), aggravated burglary (count two), employing a firearm during the commission of a dangerous felony (count three), and being a convicted felon in possession of a handgun (count four). See Tenn. Code Ann. §§ 39-13-402, -14-403, -17-1307, -17-1324. After a jury trial on May 2 and 3, 2016, the Defendant was found guilty as charged. Thereafter, the trial court sentenced the Defendant to eight years for the aggravated robbery conviction, three years for the aggravated burglary conviction, ten years for the employing a firearm during the commission of a dangerous felony conviction, and three years for being a convicted felon in possession of a handgun. The three-year aggravated burglary sentence and ten-year employing a firearm during the commission of a dangerous felony sentence were to run consecutively to one another, otherwise all sentences were to run concurrently, resulting in an effective thirteen-year sentence.

         A. Motion to suppress the Defendant's statement.

         Prior to trial, the Defendant filed an omnibus motion seeking suppression of his statement that he gave to police following his arrest pursuant to a warrant. In the motion, the Defendant argued as follows:

It is the [D]efendant's position that it is the policy, practice, and procedure[] of the Memphis Police Department that upon arresting an individual, they put the fictitious charge of "hold for investigation." The intent of this policy, practice[, ] and procedure[] is to secure a statement from the [D]efendant before formally booking and processing the [D]efendant. Once the [D]efendant is formally booked and processed, he must be brought before a committing magistrate. Once the [D]efendant is brought before a committing magistrate, the [D]efendant can, then, invoke his Fifth [A]mendment rights. This would foreclose any opportunity of statements being given to the arresting officers. In other words, the purpose and intent of the delay, is to secure incriminating evidence from a [D]efendant before he is formally charged and brought before [the] committing magistrate. The [D]efendant would respectfully submit that such a statement is in violation of due process.

         A hearing was held on the motion. At the outset of the hearing, defense counsel contended,

[T]he proof will show [the Defendant] will testify that after he was booked and processed when they took him up to the office to talk to him, they had asked [the Defendant] questions . . . before giving him his formal Miranda [r]ights[, ] which basically gave them the proper information to ask the questions they did. So . . . based upon what he told them informally before his Miranda [r]ights, they were in a much better position to go ahead and . . . ask him these formal questions[.]

         Thereafter, Memphis Police Department ("MPD") Sergeant Kevin Brown testified that the Defendant was arrested on December 18, 2012, pursuant to a warrant. According to Sergeant Brown, the Defendant arrived at the Robbery Squad Office after 4:00 p.m. that day, and because the lead investigator, Sergeant Eric Petrowski, was "gone for the day[, ]" Sergeant Brown interviewed the Defendant. Sergeant Minga also participated in the interview.[2]

         Sergeant Brown described the initial phase of his interview process:

We introduce ourselves. . . . We normally ask do you need anything[.] We always provide water, restroom. If you need some food, we find you food. . . . Then once we introduce ourselves, we may speak briefly just nothing in regards to the case. And once we get ready to speak in regards to the case, we advise the Miranda [r]ights [and] . . . the Waiver of Rights form is presented.

         According to Sergeant Brown, "these [were] the general practices" of the Robbery Squad Office, in addition to also being Sergeant Brown's usual practices.

         Sergeant Brown explained that, prior to advising an interviewee of their Miranda rights, he inquired if that person was literate, was under the influence of any drugs, or was sick. He proceeded to advise the interviewee of their Miranda rights, had them read the rights aloud, and had them sign the Waiver of Rights form indicating whether they wished to speak with him. Sergeant Brown followed this procedure at the beginning of his interview with the Defendant, and at 5:01 p.m., the Defendant signed the Wavier of Rights form indicating his willingness to speak with Sergeant Brown without an attorney present. The Defendant also initialed each individual right on the form, and the form contains the following provision: "No promises or threats have been made to me and no pressure, force, or coercion of any kind has been used against me." Additionally, Sergeant Brown averred that he did not threaten the Defendant during the interview and that he "tried to be as casual as possible" with the Defendant. Furthermore, Sergeant Brown did not recall the Defendant's being hostile at any point in the interview.

         Sergeant Brown was given a copy of the Defendant's statement to review. Sergeant Brown explained that the document was "a formalized written version" of the Defendant's interview. Sergeant Brown detailed how the statement was prepared: first, the Defendant gave an "oral statement"; the Defendant was again advised of his Miranda rights before the statement was reduced to writing; the Defendant initialed that he understood these rights; the statement was typed in a question-and-answer format by Sergeant Brown; and the Defendant reviewed the statement for accuracy before signing the document.

         On cross-examination, Sergeant Brown testified that, if an individual is arrested pursuant to a warrant, he or she will usually be interviewed before being "booked and processed in the jail"; moreover, based upon Sergeant Brown's best recollection, that procedure was followed in this case. According to Sergeant Brown, the Defendant was arrested "by uniform patrol officers" and was brought to the Robbery Squad Office under the direction of the lead investigator. Sergeant Brown denied that the Defendant was brought to the Robbery Squad Office first in order to gain "a tactical advantage by [obtaining] a statement" from the Defendant, clarifying that "[s]ometimes [the interview] takes place because we need to find out who suspect Number 2 is."

         Sergeant Brown was aware at the time of the interview that the Defendant had been identified in a photographic lineup by the victims and that the victims had given statements. Although it was the lead investigator that prepared the warrant in this case, Sergeant Brown was confident that it was issued with probable cause for the Defendant's arrest. Defense counsel then inquired,

And then that he had probable cause but notwithstanding that fact, [the Defendant] was not booked and processed into the jail. And you just correct me if I'm wrong because once he's booked and processed in the jail, then he has a right to . . . go to a committing magistrate and have a [p]reliminary [h]earing. I mean have an arraignment. Is that basically correct?

Sergeant Brown replied, "Well, the judicial procedures that the commissioners and the pretrial individuals, I can't get into their policy. But the lead investigator does have the discretion to have an individual brought to the office prior to being booked into the jail." Sergeant Brown confirmed that, after the Defendant gave his statement, "he was taken to and turned over to the Shelby County Sheriff."

         Defense counsel then asked Sergeant Brown about the MPD's booking and processing procedures, and the State objected on relevancy grounds. Defense counsel responded by citing State v. Bishop, 431 S.W.3d 22 (Tenn. 2014), and County of Riverside v. McLaughlin, [3] 500 U.S. 44 (1991), as standing for the proposition that, when a suspect is arrested and detained, he or she can only be held for booking and processing and not "for the specific reason of securing other evidence" and that any statement obtained during this illegal detention is inadmissible as fruit of the poisonous tree. According to defense counsel, if probable cause supported the arrest, then "the first thing you got to do is take them . . . for booking and processing." The trial court permitted this line of questioning to continue.

         Sergeant Brown acknowledged that the Defendant's interview was not video- or audio-recorded. However, according to Sergeant Brown, the "supervisor" listened and watched interviews via a monitor "to make sure that everything [was] okay." In Sergeant Brown's opinion, it was not necessary to take a video.

         Sergeant Brown was then asked about specifics during the initial phase of the Defendant's interview. Defense counsel asked, "So . . . when [the Defendant] got in there, . . . who made the first word? Did [the Defendant] say what am I here for? Or did you . . . or one of the other officers say you're here for whatever reason?" Sergeant Brown responded, "I cannot speak on . . . who spoke first. I can state the normal practice is for us to introduce oursel[ves] when we walk into the room." Sergeant Brown stated that he did "the same thing every time" he interviewed a suspect, and he reiterated that it was "not [his] practice to speak about [the] case[, ] period[, ]" until the individual was advised of his or her rights. Sergeant Brown affirmed that he did not tell the Defendant the type of crime involved or that the Defendant had been identified prior to his issuing Miranda rights to the Defendant.

         MPD Sergeant Eric Petrowski testified that he was the lead investigator assigned to this case, that he spoke with the victims in this matter, and that the Defendant had been identified as a perpetrator. Based upon his investigation, Sergeant Petrowski went before a commissioner on December 17, 2012, and secured an arrest warrant for the Defendant. According to Sergeant Petrowski, the Defendant was arrested the next day by the Shelby County Fugitive Bureau. Sergeant Petrowski was asked, "When you issue an arrest warrant are there multiple ways defendants are brought into custody?" He replied,

Yes. We would put out a flyer within our own department that this person is an actual wanted party. And in turn I think I left a note with Fugitive either on the warrant or by email that if [the Defendant is] located[, ] I'd like to be notified so he could be interviewed.

         On cross-examination, Sergeant Petrowski testified that the "flyer" was sent out to the entire MPD and that the flyer requested Sergeant Petrowski be notified upon the Defendant's arrest. Additionally, Sergeant Petrowski agreed that "the purpose" of the flyer was to "go ahead and obtain a statement from the [D]efendant to help [the] case." Moreover, Sergeant Petrowski testified that it was no longer the MPD's practice to place "a hold for investigation" status on an arrestee after he or she had been booked and processed.

         Sergeant Petrowski was then presented with the arrest warrant for the Defendant. According to Sergeant Petrowski, the warrant provided that the Defendant was arrested on December 18 at 9:09 a.m. Sergeant Petrowski confirmed that, following the Defendant's arrest, he would have been taken to the county jail. Also, it appeared from the arrest warrant that the Defendant was "physically" at the jail about an hour later, shortly after 10:00 a.m. However, Sergeant Petrowski did not recall what time he was notified that day of the Defendant's arrest.

         The Defendant testified that he was driving "to a corner store" on the morning of December 18, 2012, when he was arrested by several police officers in "[u]nmarked cars." According to the Defendant, the police officers stopped his car, placed him in the back of a police car, and took him to the county jail. The Defendant believed he arrived at the jail earlier than 10:00 a.m., sometime "[b]etween 7:30 and nine."

         According to the Defendant, the officers "dropped [him] off" at "intake" when he arrived at the jail. The Defendant stated that "the first person [he] saw in intake" told him "what [he was] there for[.]" In addition, he was instructed to "have a seat, " and they began "[p]rocessing him into the system." He was asked his "name, address, date of birth and all, " and his responses were typed into the computer. According to the Defendant, the intake process lasted "[j]ust a few minutes[, ]" and he was then placed in a jail cell for "a couple of hours" before being questioned in the Robbery Squad Office by Sergeants Brown and Minga.

         The Defendant testified that, while en route to the Robbery Squad Office, the officers spoke with him briefly "but nothing pertaining to the case." Once inside the interrogation room, the officers introduced themselves to the Defendant and "spoke briefly about the case." The Defendant kept asking the officers why he was there, and the officers reluctantly told him that he "was picked out of a photo lineup for a robbery because of a tattoo" on his left arm. According to the Defendant, he was also asked if he knew the victim, and he responded that he did not. The Defendant stated that this discussion took place before he was advised of his Miranda rights or signed the Waiver of Rights form. The Defendant agreed that, once given his Miranda protections, he gave a formal statement. He further confirmed that he was allowed the opportunity to correct his statement.

         On cross-examination, the Defendant acknowledged that he reviewed the Advice of Rights with Sergeant Brown and that he understood those rights prior to giving his written statement. The Defendant also agreed that he had a chance to review his formal written statement and that he signed the document without making any corrections.

         The attorneys then argued the motion. The prosecutor noted that the Defendant "was arrested under a warrant" and that "[t]here was no hold for investigation." The prosecutor then averred,

We have an interview that was given pursuant to that arrest. The [D]efendant of course had a chance to invoke his rights. It was voluntary in nature. Therefore, under any law under the Fourth Amendment, under any law I can conceive of this was an admissible statement given by the [D]efendant. And, again, . . . I have no opportunity to respond to case law or argument because it is not included in the motion.

         Defense counsel replied by citing Bishop, McLaughlin, and State v. Huddleston, 924 S.W.2d 666 (Tenn. 1996), as support for the "pretty well-known" assertion that, "once there's probable cause[, ] you can't hold, detain anybody for the specific purpose of securing further evidence[.]" Defense counsel continued:

[T]he proof in this record is that he was arrested, given the proof- the inference most favorable to the State, he reached the Shelby County [jail] for booking and processing at 10 in the morning, and the statement was given three hours[4] later. He testified there was-they booked and processed and the person that booked and processed him was typing in the computer. . . .

         Defense counsel then noted Sergeant Petrowski's testimony that a flyer was sent out to the entire MPD to "hold for interview" upon the Defendant's arrest and that the Defendant was so held. Defense counsel also noted that contradictory testimony was given by the Defendant and Sergeant Brown regarding whether the Defendant was given proper Miranda warnings. Defense counsel persisted:

I think they held him for three hours and lo and behold after he gives the statement, incriminating statement, then they say he's booked and processed. But the proof in the record is by the arrest report he was arrested at 10 o'clock in the morning and booked and processed. So they can't have it both ways.
And I would submit if the proof backs up what [the Defendant] says he was booked and processed on a warrant already showing probable cause, I think from then on you have to-that any hold on him, you know, for the purpose of securing a statement, i.e. hold for an interview is certainly during the-during an illegal detention and is exactly the issue that Huddleston addresses . . . .

         By written order, the trial court subsequently denied the Defendant's motion to suppress his statement as transcribed by Sergeant Brown. The trial court first determined that the Defendant voluntarily, knowingly, and intelligently waived his Miranda protections when he signed the Waiver of Rights form. The trial court then addressed the Defendant's argument "that there was a delay in taking [him] to a magistrate pursuant to [the Tennessee Rules of Criminal Procedure] and []Huddleston, . . . and []McLaughlin, " and concluded that the Defendant was not entitled to relief. The trial court reasoned that, "[i]n Huddleston, the Tennessee Supreme Court found a delay of [seventy-two] hours violated the requirements of [Tennessee] Rule [of Criminal Procedure] 5[, ]" but that the Defendant, to the contrary in this case, "was arrested on a warrant as opposed to a warrantless arrest." The trial court continued, "[T]he [D]efendant was properly booked and processed through the jail procedure immediately and shortly thereafter taken to the Robbery Squad Office."

         B. Motions regarding counts three and four.

         In the same omnibus motion wherein he sought suppression of his statement, the Defendant also requested dismissal of counts three and four. Regarding count three, employing a firearm during the commission of a dangerous felony, the Defendant cited to State v. ...

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