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State v. Wilson

Court of Criminal Appeals of Tennessee, Nashville

May 7, 2018


          Session Date: January 17, 2018

          Appeal from the Criminal Court for Smith County No. 2012-CR-250 Brody N. Kane, Judge

         Defendant, 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.

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

          Jacky 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 of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.



         Factual and Procedural Background

         On the 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.

          Upon 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.

         I. Hearing on Motion to Suppress

         In 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.[1] 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.

         Lieutenant 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.

         At 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."

         Defendant 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."

         The trial court reviewed the videotaped interview and issued an oral ruling denying the motion to suppress.[2] 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.

         In 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]."

         II. Trial Testimony

         The 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.

          The victim helped Defendant split wood on several occasions. The victim had a blue "mohawk" at the time of the incident.

         In 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.

         The 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.

         After 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 attack.

         Judith 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."

         After 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 injuries.

          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.

         On 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.

         John 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.

         Sergeant 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 perpetrator.

         Sergeant 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.

         Detective 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.

         After 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.

         The 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] a lesson."

         Defendant 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.

         On the 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].

         At the 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.

         On 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 excessive.


         I. Denial of the Motion to Suppress

         Defendant 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.

         In 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).

         Both 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).

         Statements 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 with abuse.

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).

         In this 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.

         II. Introduction of Clothing and Weapon into Evidence

         Defendant 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.

         Though 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 ...

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