Court of Criminal Appeals of Tennessee, Nashville
Session Date: January 17, 2018
from the Criminal Court for Smith County No. 2012-CR-250
Brody N. Kane, Judge
Douglas McArthur Wilson, was indicted for attempted first
degree murder in 2012. After a jury trial, Defendant was
convicted of the lesser included offense of attempted second
degree murder. The trial court sentenced Defendant to ten
years in incarceration. After the denial of a motion for new
trial, Defendant presents a multitude of issues on appeal.
After a thorough review of the record and applicable
authorities, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
O. Bellar, Jamie D. Winkler, and Samantha L. Key, Carthage,
Tennessee, for the appellant, Douglas McArthur Wilson.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Assistant Attorney General; Tom P. Thompson,
District Attorney General; and Jack Bare and Javin Cripps,
Assistant District Attorneys General, for the appellee, State
Timothy L. Easter, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr.,
TIMOTHY L. EASTER, JUDGE
and Procedural Background
evening of September 23, 2012, emergency medical personnel
were summoned to a home in rural Smith County based on a
report of a stabbing or cutting.
their arrival, they found Timothy Bennett, the victim, at the
home of Judith Brown. He was bleeding profusely from a large
gash in his neck that extended nearly from one side of his
neck to the other. The victim was transported via helicopter
to Vanderbilt Hospital in Nashville for treatment. He
survived. Defendant was arrested and transported to the
police station that night. The next morning, Defendant was
read his Miranda rights and questioned by police.
The interview room was equipped with video recording
equipment, which recorded the interaction between Defendant
and the police. As a result, Defendant was eventually
indicted by the Smith County Grand Jury for one count of
attempted first degree murder.
Hearing on Motion to Suppress
March of 2013, Defendant filed a motion to suppress the
statement given to police the day after the incident. The
trial court held a hearing on the motion on April 8,
2013. At the hearing, the trial court heard
testimony from Shannon Hunt, a Lieutenant with the Detective
division of the Smith County Sheriffs Department. Lieutenant
Hunt was on call the night of the incident and responded to
the scene from his residence. When Lieutenant Hunt arrived on
the scene, the victim was already being transported by
helicopter to Nashville and Defendant was in custody in the
back of a patrol car.
Hunt attempted to talk to Defendant when he arrived on the
scene but Defendant was "heavily intoxicated on alcohol
or pills" and "could barely stand".
Defendant's family informed the officer that Defendant
was on medication, but the officer was not certain how many
pills Defendant had taken or what kind of pills Defendant had
taken. Lieutenant Hunt "didn't think it would be
fair ... to talk to him at that time, " so he made the
decision to postpone the interview of Defendant to a later
time. Defendant was transported to and held at the Smith
County Sheriffs Department.
approximately 9:12 a.m. the next morning, Lieutenant Hunt
assessed Defendant's condition and believed that
Defendant "didn't appear intoxicated." In fact,
Lieutenant Hunt explained that "[i]f [Defendant] had
something left over in his system at the time [he] talked to
[Defendant] that morning, it didn't appear."
Lieutenant Hunt believed that Defendant
"understood" his rights and what was going on that
morning. During questioning by Lieutenant Hunt, Defendant
"explained the prior night in detail."
testified at the suppression hearing. He explained that at
the time of his arrest, he was taking allergy medicine,
antibiotics, an anti-inflammatory, and Xanax. Defendant
insisted that "three or four days" prior to the
incident, he had refilled a prescription for "ninety of
the Xanax." Defendant explained on the night of
September 23, he drank eight beers and took "all"
of the Xanax, which would have amounted to approximately
eighty pills. Defendant claimed that he was taken to the jail
and placed "in a cell with not even a bathroom."
Defendant claimed that he was not taken to the hospital, and
that he did not "remember [the interview] at all."
trial court reviewed the videotaped interview and issued an
oral ruling denying the motion to suppress. In the ruling,
the trial court noted that Defendant was clearly "in
custody" at the time of the interview. The officers
present during the interview "fully advised"
Defendant of his Miranda rights. The trial court
noted that Defendant "clearly did not sign a
waiver" but that Defendant was "very cooperative,
never refused to answer [any] questions, [gave] no indication
at all that he didn't want to talk or tell his side of
the story, and at no time did he ever ask for a lawyer even
though he was advised of that particular right." The
trial court noted Defendant's "cooperative, "
"spontaneous" answers to questions, and determined
that Defendant knowingly and voluntarily waived his rights.
The trial court observed that Defendant never requested a
lawyer and that the statements were voluntary.
September of 2014, for reasons unclear to this Court,
Defendant filed a second motion to suppress the statement.
The second motion to suppress raised basically the same
issues as the first motion to suppress. The record contains
neither a transcript from a hearing on this motion nor an
order disposing of this motion. However, at trial, defense
counsel renewed the motion during the testimony of Lieutenant
Hunt when the State attempted to introduce the videotape of
the interview. At that time, the trial court upheld "the
ruling [the original trial judge] previously made [on the
motion to suppress]."
victim was twenty-two years old at the time of the incident.
He explained that there were three houses on a "family
compound" down the gravel road where the incident
occurred. The first house belonged to Ruth Bedgood,
Defendant's mother-in-law. Defendant's house was in
the center. Defendant lived at the house with his stepson,
Kate Cortez, Jr.; Mr. Cortez's girlfriend; and Deborah
Wilson, Defendant's wife. Mrs. Wilson was the sister of
Judith Brown, whose house was the last house on the road. The
victim was unemployed and lived with Judith Brown. Several
other people lived at the Brown residence, including Stetson
Brown, Erica Brown, Larry Stump, and Trisha Brown. The victim
had been living there a few months and was
"acquainted" with Defendant; he explained that they
did not have "much of a relationship" but had not
had any conflicts.
victim helped Defendant split wood on several occasions. The
victim had a blue "mohawk" at the time of the
early evening of the incident, the victim was "getting
wood" for a bonfire for Erica Brown's birthday. The
victim had a "couple of beers" around 7:00 p.m.
Stetson Brown helped the victim get the fire started. The
victim admitted that he had "used drugs" in the
past but denied taking any medication or drugs the night of
the incident other than drinking a few beers. That night, the
victim planned to "have a good time" and "hang
out" by the bonfire.
victim recalled that he was "sitting on a rock" by
the bonfire. He had a machete with him that night that he
"used to cut stuff up for the bonfire." Apparently,
the victim routinely carried a machete around with him. The
victim described the machete as a "regular store bought
machete" about "two feet long" that he bought
at Walmart a few weeks prior to the incident. According to
the victim the machete was about forty to fifty feet away
from where he was sitting.
the fire was started, several of the people left to go to the
store to get more alcohol. The victim was sitting at the fire
drinking a beer, "waiting on [his] friends to come back
with some drinks, and [Defendant] just come up behind and
slit - - cut [his] throat." The victim testified that
Defendant got him in a "choke hold, like [he] was going
to be in [a] headlock." Then, the victim "felt
something warm and wet go down [his] chest and . . . noticed
it was blood." The victim claimed that there was no
verbal exchange between him and Defendant prior to the
Brown was inside her house at the time of the incident. When
she came outside during the bonfire she "saw [the victim
and Defendant] brawling, " or what she thought was
"brawling, " because it looked like Defendant
"was kind of on top of [the victim]." She ran
outside and grabbed Defendant and asked him "what's
going on." The victim was able to recall that Judith
Brown removed Defendant from the victim. Judith Brown saw
Defendant run around to the back of the house. Judith Brown
admitted that she and the victim were drinking that night and
even described herself as "drunk."
Judith Brown separated the two men, the victim ran into the
house, thinking that he was "going to die." The
victim collapsed when he got inside. The next thing the
victim recalled was being placed on a stretcher. At trial,
the victim showed his scar, which extended from behind his
right ear all the way around his neck, stopping under his
chin on the left side of his neck. He complained that he
still had no feeling in half of his face as a result of the
victim identified a knife from the area surrounding the
bonfire as a knife that he saw "[p]robably a few days
before the incident" at Defendant's house. The
victim denied Defendant's allegations that he was
throwing cans out of a car trying to hit people.
cross-examination, the victim denied that he attempted
suicide four days prior to the incident and denied that he
reported to medical personnel a day or two after the incident
that he had "seven different personalities"
including "an Irish guy, a gay guy, two guys you
don't want to mess with, a little kid" and other
personalities that he could not recall. In fact, the victim
denied "seeing a psychologist or psychiatrist." The
victim admitted that he did not remember taking pain
medication the day of the incident but that it was possible
that he took pain medication. When questioned, the victim
agreed that he was a peaceful person. The victim did not
recall Defendant telling emergency medical personnel that the
incident occurred because Defendant thought the victim was
flirting with his wife. The victim also did not recall
Defendant touching him prior to the attack.
Wesley Hiett with the Smith County Emergency Medical Services
("EMS") was one of the first responders on the
scene. He found the victim inside Judith Brown's home
lying on his "right side holding [a piece of cloth or
towel to] his throat." There was a "large amount of
blood on the floor." With the help of one of the police
officers on the scene, Mr. Hiett was able to place a spine
board under the victim and roll him to his back. When the
towel was removed from the victim's neck a "very
large laceration [was visible], " which spanned from
"jawline to jawline." The victim was obviously in
shock but was otherwise awake and alert. Mr. Hiett and
several other officers had to drag the victim to the door of
the house before carrying him outside to be placed on a
stretcher. Mr. Hiett described the victim as a
"large" man. The victim was taken by ambulance to a
helicopter for transport to Vanderbilt hospital.
Dusty Hailey was dispatched to the scene upon a report of an
"altercation involving a knife." When he received
the call, he notified EMS and took two deputies with him.
Sergeant Hailey arrived at Judith Brown's house where he
found the victim on the floor in "a very large pool of
blood." The victim identified Defendant as the
Hailey assisted Lieutenant Shannon Hunt and Kit Jenkins in
processing the scene. Sergeant Hailey located a knife next to
the fire pit. He also collected the victim's bloody
clothing from the hospital. Sergeant Hailey placed the
clothing in a paper bag and took the clothing to his office
to dry before it was sent to the Tennessee Bureau of
Investigation ("TBI") for processing.
Jenkins helped to process the crime scene by taking
photographs and collecting evidence. Blood was found near the
fire pit and a trail of blood led to the house. A knife was
found near the fire pit. The blood on the knife matched the
victim. The handle of the knife contained DNA from three
individuals, with the major contributor profile being a
mixture of the victim's DNA and an unknown male. The
unknown male DNA matched the DNA profile obtained from a blue
sweatshirt belonging to Defendant.
the victim was transported from the scene, Defendant emerged
from the woods. He was taken into custody and transported to
the police station but was not questioned because he appeared
to be heavily intoxicated. The next morning, Defendant was
questioned by Lieutenant Hunt and Detective Jenkins.
Defendant did not appear impaired at that point and spoke
freely to the officers. At trial, Defendant renewed his
motion to suppress the videotape of the interview. The trial
court upheld the prior ruling denying the motion to suppress.
videotape of the interview was played for the jury. During
the videotape, Defendant is asked if he knows why he is in
jail. Defendant responds that he "cut a fat piece of
shit." Defendant then informed the officers that his
stepson told him that the victim was throwing bottles and
cans out of a car at old people. This made Defendant
"angry, " so he decided to "teach [the victim]
testified at trial. Defendant was forty-nine years old at the
time of trial. He suffered from a heart murmur, arthritis,
and knee pain. Defendant had one "artificial knee."
Defendant explained that he was unemployed at the time of the
incident but held a regular job at the time of trial.
Defendant also often worked in the neighborhood farming and
cutting wood. Defendant recalled a time prior to the incident
when the victim asked to help cut wood. Defendant taught the
victim to "split wood" and described the victim as
"excited" to learn this skill. On one particular
occasion, the victim got overheated while they were working
together so Defendant gave him a glass of water. Defendant
continued to work and, after a few minutes, "looked
around" and did not see the victim. Defendant found the
victim inside his house "sitting against"
Defendant's wife, who was "laid out" on
"pain medication" because she had a broken leg.
Defendant asked the victim to get up. The victim got up and
sat down next to Mr. Cortez's girlfriend. Defendant asked
the victim to go outside.
night of the incident, Defendant described it as a
"normal night." He knew that the neighbors were
going to have a bonfire. Around 8:00 or 8:30 p.m. that night,
he got a call from Erica Brown asking for help in lighting
the bonfire. Defendant walked next door and saw the victim
sitting in front of the fire. The victim had cut his hair
into a mohawk and dyed it blue. Defendant thought it was
"kind of funny, " so he "played with [the
victim's] hair." According to Defendant, everyone
was having a good time, laughing and enjoying the evening.
Defendant noticed "a lot of beer cans and a lot of
drinking going on" and that a few of the people were
underage. He made the underage people go inside the house.
Defendant turned around and saw the victim laughing. The
victim asked Defendant "what?" Defendant told him
he "shouldn't be going around and throwing trash out
of there because in our neighborhood it's a small
community." At this point, Defendant claimed the victim
"got mad and stood up." Defendant did not know if
the victim was kidding or not so Defendant "reached
up" and "pinched his chest" and "took a
s, tep back." The victim "grabbed" a machete
that was "sticking out of the ground" and came
toward Defendant. At that point, Defendant grabbed for the
machete because he thought the victim "was going to cut
[him] with it." Defendant recognized it as the
victim's machete. Defendant "tackled" the
victim and claims that he did not "know what happened in
the struggle." He recalled being pulled off of the
victim and being hollered at to stop. As Defendant left, the
victim was facing the other way. The victim turned around and
yelled that he was "sorry" for touching
Defendant's wife. Defendant saw the victim "run
around the house" to the front door. Defendant went
home. When he got there he discovered that he had blood on
his hand. He was "overwhelmed" because he had lost
his job "because of his knees, " he had bills, his
wife had a broken leg, and he thought that he hurt the
victim. Defendant grabbed his jacket and his "pill
bottles" and ran to the barn. By the time he got to the
barn there was an ambulance arriving on the property.
Defendant took the "entire bottle of Xanax" before
surrendering to police. Defendant did not recall giving a
statement to police and could not recall "parts" of
"the hearing" [police interview].
conclusion of the jury trial, Defendant was found guilty of
the lesser included offense of attempted second degree murder
and, after a sentencing hearing, was sentenced to ten
years' incarceration. Defendant filed a motion for new
trial, in which he memorialized multiple complaints about his
trial. The trial court held a hearing on the motion, at which
Defendant presented the testimony of several witnesses. The
trial court denied the motion after the hearing. Defendant
filed a timely notice of appeal.
appeal, Defendant raises the following issues for our review:
(1) whether the trial court improperly denied the motion to
suppress; (2) whether the trial court erred in admitting
clothing and a weapon into evidence where the State failed to
establish chain of custody; (3) whether the trial court
improperly excluded the victim's Facebook posts; (4)
whether the trial court improperly excluded medical records
of the victim; (5) whether the trial court erred in admitting
the videotape of Defendant's statement; (6) whether the
trial court erred by permitting the jury to view the
videotape multiple times; (7) whether the trial court
properly instructed the jury with respect to the videotape;
(8) whether the trial court erred by refusing to grant a
mistrial after the videotape malfunctioned; (9) whether the
trial court erred by restricting Defendant's examination
of witnesses; (10) whether the evidence was sufficient to
support the verdict; (11) whether the trial court erred in
denying a mistrial after improper jury conduct; (12) whether
newly discovered evidence warrants a new trial; (13) whether
the trial court improperly denied the motion for judgment of
acquittal; (14) whether court personnel influenced the
verdict; (15) whether the trial court improperly instructed
the jury on flight; and (16) whether the sentence was
Denial of the Motion to Suppress
argues that the trial court erred in denying the motion to
suppress his statement. Defendant insists that he has
"no recollection" of the interview or waiver of
rights due to his high level of intoxication and, therefore,
the trial court should have granted the motion to suppress.
The State, on the other hand, argues that there is "no
merit" to Defendant's claim.
reviewing a trial court's ruling on a motion to suppress,
this Court will uphold the trial court's findings of fact
"unless the evidence preponderates otherwise."
State v. Bell, 429 S.W.3d 524, 528 (Tenn. 2014)
(citing State v. Climer, 400 S.W.3d 537, 556 (Tenn.
2013)). Witness credibility, the weight and value of the
proof, and the resolution of conflicts in the proof "are
matters entrusted to the trial court as the trier of
fact." Id. at 529. "The party prevailing
in the trial court is entitled to the strongest legitimate
view of the evidence adduced at the suppression hearing as
well as all reasonable and legitimate inferences that may be
drawn from that evidence." State v. Binette, 33
S.W.3d 215, 217 (Tenn. 2000) (quoting State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996)). The trial court's
resolution of questions of law and application of the law to
the facts are reviewed de novo with no presumption of
correctness. State v. Day, 263 S.W.3d 891, 900
(Tenn. 2008). On appeal, the losing party bears the burden of
demonstrating that a trial court's decision concerning a
motion to suppress was erroneous. State v. Harts, 7
S.W.3d 78, 84 (Tenn. Crim. App. 1999). "[I]n evaluating
the correctness of a trial court's ruling on a pretrial
motion to suppress, appellate courts may consider the proof
adduced both at the suppression hearing and at trial."
State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
the state and federal constitutions guarantee an accused the
right to the assistance of counsel and the right against
self-incrimination. The Fifth Amendment to the United States
Constitution guarantees that "[n]o person . . . shall be
compelled in any criminal case to be a witness against
himself." Article I, section 9 of the Tennessee
Constitution similarly provides that "in all criminal
prosecutions, the accused . . . shall not be compelled to
give evidence against himself." The test for
voluntariness under the Tennessee Constitution is broader and
more protective of individual rights than under the Fifth
Amendment. State v. Smith, 933 S.W.2d 450, 455
(Tenn. 1996). The Sixth Amendment to the United States
Constitution provides: "In all criminal prosecutions,
the accused shall enjoy the right... to have the Assistance
of Counsel for his defence." See Gideon v.
Wainwright, 372 U.S. 335, 339 (1963) (holding that Sixth
Amendment right to counsel in criminal proceedings applies to
states through Fourteenth Amendment). Similarly, Article I,
section 9 of the Tennessee Constitution provides: "That
in all criminal prosecutions, the accused hath the right to
be heard by himself and his counsel." Tennessee courts
have consistently interpreted the right to counsel under
Article I, section 9 of the Tennessee Constitution as
identical to the Sixth Amendment right to counsel. See
State v. Willis, 496 S.W.3d 653, 702-03 (Tenn. 2016),
cert, denied, 137 S.Ct. 1224(2017).
made during the course of a custodial police interrogation
are inadmissible at trial unless the State establishes that
the defendant was advised of his right to remain silent and
his right to counsel and that the defendant then waived those
rights. Miranda v. Arizona, 384 U.S. 436, 471-75
(1966); see also Dickerson v. United States, 530
U.S. 428, 444 (2000); Stansbury v. California, 511
U.S. 318, 322 (1994). A defendant's rights to counsel and
to remain silent may be waived as long as the waiver is made
voluntarily, knowingly, and intelligently. Miranda,
384 U.S. at 478; State v. Middlebrooks, 840 S.W.2d
317, 326 (Tenn. 1992). The voluntariness of a confession
"remains distinct from Miranda." Climer,
400 S.W.3d at 568 (citing Dickerson, 530 U.S. at
434-35). In order to determine the voluntariness of a
statement, a court must "examine the totality of the
circumstances surrounding the giving of a confession,
'both the characteristics of the accused and the details
of the interrogation.'" Climer, 400 S.W.3d
at 568 (quoting Dickerson, 530 U.S. at 434));
see also Monts v. State, 400 S.W.2d 722, 733 (Tenn.
1966). Factors relevant to this determination include:
the age of the accused; his lack of education or his
intelligence level; the extent of his previous experience
with the police; the repeated and prolonged nature of the
questioning; the length of the detention of the accused
before he gave the statement in question; the lack of any
advice to the accused of his constitutional rights; whether
there was an unnecessary delay in bringing him before a
magistrate before he gave the confession; whether the accused
was injured[, ] intoxicated[, ] or drugged, or in ill health
when he gave the statement; whether the accused was deprived
of food, sleep[, ] or medical attention; whether the accused
was physically abused; and whether the suspect was threatened
Id. (alterations in original) (quoting State v.
Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996)); see
State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000)
(recognizing that no single factor is necessarily
determinative). With respect to a defendant's impairment,
"intoxication does not render a confession invalid if
the evidence shows that the defendant was capable of
understanding and waiving his rights." State v.
James David Johnson, No. W2006-01842-CCA-R3-CD, 2008 WL
540505, at *5 (Tenn. Crim. App. Feb. 6, 2008) (citing
State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App.
1985)), no perm. app. filed; see also State v. Anthony
Porrazzo, No. E2014-02335-CCA-R3-CD, 2015 WL 9259996, at
*5-6 (Tenn. Crim. App. Aug. 18, 2015), perm. app.
denied (Tenn. May 5, 2016).
case, the record does not support Defendant's claim that
his statement was involuntarily given. We have reviewed the
videotape of the statement. Defendant, who attended high
school until the tenth grade, was provided with
Miranda warnings and orally waived his rights. He
expressed familiarity with Miranda based on his
prior interaction with authorities. Defendant was not sick or
injured during his interview. There is no evidence that
Defendant was abused or deprived of food or sleep prior to or
during the relatively short interview. Although Defendant
claimed to be heavily intoxicated because he was under the
influence of "a bottle" of Xanax, his demeanor and
speech belied that contention. Defendant coherently answered
the questions. Though not Shakespearean, Defendant was polite
and able to provide fairly detailed descriptions of his
actions that evening. In fact, officers recognized Defendant
was intoxicated when he was arrested and waited until around
9:00 a.m. the next morning to initiate the interview. In our
view, the circumstances surrounding the statement support the
trial court's determination that Defendant knowingly and
voluntarily waived his rights. Defendant is not entitled to
relief on this issue.
Introduction of Clothing and Weapon into Evidence
challenges the trial court's refusal to exclude the
physical evidence, namely his clothing and the alleged
weapon, on the basis that the chain of custody was not
properly established by the State. Moreover, Defendant claims
that "no reliable DNA evidence linked the alleged weapon
to Defendant" and that the State should not have been
permitted to ask Defendant about the DNA evidence on
cross-examination. The State disagrees, pointing to the
testimony of TBI Agent Charly Castelbuono to substantiate the
chain of custody. The State also argues that Defendant was
not asked to testify about DNA evidence, rather he was asked
by the State if he was "surprised" to hear that the
blood on a sweatshirt seized from Defendant matched the blood
on the handle of the knife.
not acknowledged by either party, Defendant did not object to
the chain of custody at trial and, thus, has waived the issue
on appeal. See Tenn. R .App. P 36(a) ("Nothing
in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or
nullify the harmful effect of an error."); Tenn. R.
Evid. 103(a)(1) (requiring a timely objection as a
prerequisite to a finding of error based on the trial
court's admission of evidence). Thus, Defendant is only