Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs October 18, 2017
from the Circuit Court for Rutherford County No. F-72670
David M. Bragg, Judge
Defendant, Charles Lee Warner, appeals his jury conviction
for first degree murder, for which he was sentenced to life
imprisonment. In this direct appeal, the Defendant alleges
the following errors: (1) that the evidence was insufficient
to support his conviction, challenging the evidence
establishing his identity and premeditation, and alleging
that his jailhouse confession was not sufficiently
corroborated; (2) that the trial court erred by declaring
Robert Strange to be an unavailable witness and admitting his
preliminary hearing testimony; and (3) relying on the rules
of evidentiary relevance, that the trial court erred (a) by
permitting a law enforcement officer to testify
"regarding the [D]efendant's propensity to carry
weapons in the past"; (b) by allowing a former employer
to testify about murderous threats made by the Defendant to
the victim over a year prior to the victim's death; and
(c) by prohibiting defense counsel from eliciting testimony
"regarding the potentially violent propensities of
others known to the witness in the homeless
community." Following our review of the record and the
applicable authorities, we affirm the judgment of the trial
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Chadwick W. Jackson, Nashville, Tennessee, for the appellant,
Charles Lee Warner.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Jennings H. Jones, District Attorney
General; and J. Paul Newman, Matthew W. Westmoreland, and
John C. Elrod, Assistant District Attorneys General, for the
appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which, Robert H. Montgomery, Jr., and Timothy L. Easter, JJ.,
KELLY THOMAS, JR., JUDGE
2014, the victim's nude body was found in Lytle Creek in
Murfreesboro. His throat had been slit. Thereafter, the
Defendant was charged with the first degree premeditated
murder of the victim, Emad Kadhim Al Azraki, and tampering
with evidence. See Tenn. Code Ann. §§
39-13-202, -16-503. Ultimately, the tampering with evidence
charge was dismissed, and the Defendant proceeded to a trial
by jury on the murder charge, which was held February 8-11,
Discovery of the victim's body and search of the
12, 2014, Trey Parsley, a construction worker, was standing
on a walking bridge overlooking the greenway area of Lytle
Creek when he observed "something kind of shiny" in
the creek. Mr. Parsley had been working in the area
installing a gas pipeline and had noticed a smell near the
bridge for several days that had become more pungent over
time. Upon closer observation of the shiny object, Mr.
Parsley saw that it was a nude body face-down in the creek.
According to Mr. Parsley, the victim's hands appeared to
be "out like maybe he was trying to push up or
something." Mr. Parsley also observed "sticks and
stuff" placed across the victim's back "kind of
like in an 'X' maybe . . . to hold him down."
Mr. Parsley returned to the bridge and telephoned 9-1-1. When
the officers arrived, Mr. Parsley showed them how to get to
where the body was "because it was kind of rough to get
in in spots." After the officers turned the body over,
Mr. Parsley noticed a "big gash" across the
Paul Mongold with the Murfreesboro Police Department
("MPD") responded to Mr. Parsley's call.
Detective Mongold determined that the victim's body was
found in approximately eight inches of water. Detective
Mongold also saw "debris,  logs, and a board"
lying on top of the victim. According to Detective Mongold,
it appeared as though the victim was "pinned underneath
those logs" and, based upon the condition of the body,
it also appeared as though it had been in the water for
several days. Collected from the area that day were a blue
shirt, a blue and black sleeping bag, a white tank top, and a
victim's body was later identified by his wife, Lisa
Azraki. She testified that the victim was from Iraq. After
viewing several photographs, Ms. Azraki was able to identify
the body based upon certain tattoos-one of which was Ms.
Azraki's first name with hearts besides it, and another
was the name of the victim's nephew.
15, 2014, Detective Mongold returned to the area, searching
along the greenway and creek behind Dodge's Store where
the victim's body was discovered. He discovered an area
under some concrete on the greenway with newspapers and
cardboard laid down, believing that may have been where the
victim slept. He also found a duffle bag containing a Verizon
phone card and a torn-up piece of paper with the victim's
full name on it. On May 21, 2014, Detective Mongold searched
the area once more; this time searching the creek downstream
from where the victim's body was found, thinking that the
current might have carried evidence. He found a white plastic
bag with clothes inside that had been submerged in the water.
Inside the bag were a pair of blue shorts, a pair of
camouflage print underwear, a pair of socks, and a white tank
top that was torn and "possibly" had blood on it.
The bag was also weighted down with rocks and beer bottles,
according to Detective Mongold.
Testimony from witnesses acquainted with the
Watson testified that he was "in [the Defendant's]
company" on the evening of August 23,
2013.On this occasion, Mr. Watson observed the
Defendant in possession of "three fixed blade knives on
his right side in a sheath."
Eric Dill testified that he owned a construction
"restoration company, " and through his work
"with a homeless ministry, " had hired three
homeless individuals during the spring of 2013 to work on a
project near Chicago, Illinois. The Defendant and the victim
were two of the individuals Mr. Dill had hired. One evening,
Mr. Dill and his crew went out to dinner, and while at
dinner, the Defendant and the victim, who were both drinking,
"had an argument that led to a fight." Mr. Dill
maintained that the Defendant punched the victim and
threatened to kill him. Although Mr. Dill saw the Defendant
in possession of a knife that evening, the Defendant did not
use the knife during the argument, according to Mr. Dill.
Mr. Dill found the victim to be "very passionate
about" the argument with the Defendant, and because Mr.
Dill also believed that the Defendant's threat was
credible, Mr. Dill decided to send the victim back to
Tennessee. So, Mr. Dill drove two and a half hours each way
to Chicago, paid for a bus ticket, and placed the victim on a
or four days later, Mr. Dill and the Defendant returned to
Tennessee. According to Mr. Dill, the Defendant again
threatened to kill the victim during the drive home. The
Defendant was not intoxicated at the time he made this
threat, but according to Mr. Dill, the Defendant "[w]as
still angry about the argument" and had "been
fuming about [it] for the last several days."
Clifford Wayne Brothers testified that the Defendant
"showed [him] the ropes" when he became homeless,
teaching him how to survive outdoors and to find assistance
like "where the Journey Home was, where there's free
food, the Salvation Army and that kind of stuff." Mr.
Brothers was eventually able to get his own apartment in
Murfreesboro, where he lived in May 2014. According to Mr.
Brothers, the Defendant "had a job at the diesel college
in Nashville" and lived in the college dormitory, but he
would ride his bike or hitchhike to Murfreesboro "every
weekend" to visit Mr. Brothers. The Defendant did not
stay with Mr. Brothers but would instead "stay at his
campsite." However, the Defendant often stored "his
gear or equipment" at Mr. Brothers's apartment when
he would return to Nashville.
Brothers became "curious" as to why the Defendant
would travel such a "good distance" every weekend.
According to Mr. Brothers, the Defendant said that he came to
Murfreesboro to look for the man who "had stolen his
bike and cut up his tent" and that he intended on
hurting the man in "some way." While the Defendant
provided a name and said that the man was from India, Mr.
Brothers did not know who the man was at that time. Mr.
Brothers maintained that the Defendant "was infatuated
[with] taking care of this business." Mr. Brothers
advised the Defendant to "just drop it" because
that occurred "almost six months ago, " and they
had "different lives now." Mr. Brothers also
advised the Defendant that he did not "want to hear any
more about it."
Mr. Brothers could not recall the exact date, the Defendant
eventually informed him "about midday" on "a
Friday afternoon or something" in May 2014 that he had
located the man who had stolen his bicycle. When Mr. Brothers
asked the Defendant what he was "going to do" about
it, the Defendant said that he was "going to take care
of it." Mr. Brothers again advised the Defendant to
"give it a rest." However, according to Mr.
Brothers, the Defendant returned to the apartment later that
evening with "all this blood on him and had a big cut on
him." Mr. Brothers described that the Defendant
"had specks [of blood] all over him" and "some
soaking blood in his tennis shoes, his shorts, all that kind
of stuff." The Defendant also appeared "damp."
In addition, Mr. Brothers confirmed that the "big
cut" on the Defendant's shoulder was bleeding and
that he gave the Defendant "[g]auze and a piece of
tape" to help "him close it[.]" At some point,
the Defendant also told Mr. Brothers that "he had taken
care of his business" with "this guy."
Defendant told Mr. Brothers that "a truck had hit him on
his bicycle, " to which Mr. Brothers replied,
"[W]ell, you took a pretty good lick if it did."
The Defendant asked Mr. Brothers if he could take a shower,
and Mr. Brothers said "sure." The Defendant also
asked to borrow some clothes. When asked what the Defendant
was wearing that day prior to showering, Mr. Brothers
responded, "It was a white tank top and a blue pair of
shorts. I know it had an emblem. I can't remember the
emblem. A pair of white tennis shoes." After showering,
the Defendant asked for a plastic bag to put his bloody
clothes inside, and Mr. Brothers told him that there were
plastic bags underneath the sink. At this time, according to
Ms. Brothers, there were several men already inside the
apartment and George Lee had also arrived. After retrieving a
plastic bag, "they put the clothes" inside. Mr.
Brothers claimed he "didn't want nothing [sic] to do
with it." However, Mr. Brothers accompanied the
Defendant outside where the Defendant asked him how long he
had "known these guys here" and whether they could
Defendant, according to Mr. Brothers, then asked Mr. Brothers
to help him look for his glasses on the greenway next to
Lytle Creek behind Dodge's Store, the location of the
bike wreck. Mr. Brothers testified that he agreed, and the
two of them looked for the glasses "[o]n the other side
of the creek on the next road over." Mr. Brothers
brought a flashlight. When Mr. Brothers inquired about how
the glasses ended up twenty or thirty yards away from the
roadway, the Defendant replied, "[A]ctually, I came down
that breezeway and hit the railing, and my glasses [flew]
across the creek" into the "brush" on the
other side. Mr. Brothers again said, "[M]an, you took a
pretty good lick." While searching, Mr. Brothers was
about to sit down when the Defendant said that he
"wouldn't sit there" because "[t]hat's
where [he] sat down . . . after the wreck, and there might be
some blood on it, on the grass." They never found the
returning to the apartment from looking for the glasses, Mr.
Brothers saw the Defendant's bicycle. However, according
to Mr. Brothers, the bicycle "[d]idn't have a
scratch on it, " and he saw "a little piece of wood
in the back that he had his tool box or something on."
Upon entering the apartment, there were "three people
standing there, "and Mr. Brothers recognized the plastic
bag. He told "everybody just get what they need and
go" because he was "ready to go to bed." They
all left. Mr. Brothers did not see the Defendant again until
Sunday afternoon when he returned Mr. Brothers's tent
along with a tarp that had a crowbar wrapped inside. The
Defendant then left for Nashville. Mr. Brothers claimed that
he did not see the Defendant again.
Brothers was shown a photograph of the bag of clothes
recovered from Lytle Creek. He opined that they appeared to
be the same clothes the Defendant was wearing that day when
he arrived at the apartment covered in blood.
cross-examination, Mr. Brothers confirmed that he spoke with
the police on May 15 and May 16, 2014. However, Mr. Brothers
claimed that he had recently had back surgery and "was
on muscle relaxers" when he spoke to the police. After
reviewing a recording of his police interview, Mr. Brothers
acknowledged that he told the police that he refused to help
the Defendant go look for the Defendant's glasses. Mr.
Brothers further agreed that, during the interview, he
described the man that the Defendant was looking for as
"either a Mexican or something like that." Mr.
Brothers confirmed that he told the police that the Defendant
did not appear to "be skinned up that bad" when he
returned in bloody clothes that evening, although Mr.
Brothers never mentioned anything about a bike wreck to the
Brothers testified that he did not see the Defendant in
possession of a weapon that evening. However, Mr. Brothers
"knew [the Defendant] to have knives" because
"[h]e was always sharpening" them. According to Mr.
Brothers, the Defendant "had some nice knives, "
which he thought the Defendant may have sharpened on the
weekend in question. When asked if he was "certain that
it was that weekend or was it another weekend that [the
Defendant] might have been sharpening a knife, " Mr.
Brothers replied, "It was about every time that I saw
him, " but he was not positive about that weekend.
Allen Lee testified that he met the Defendant while he was
staying at Mr. Brothers's apartment in March or April
2014. Mr. Lee also had known the victim for a few years
because he "used to work with him at a water meter
place[.]" Mr. Lee described the victim as "a little
provided many of same details as Mr. Brothers. Mr. Lee
confirmed that the Defendant "talked about an individual
who stole his bike and his tent" when they "were
both living in [a] camp together" and that the Defendant
said he "hope[d] to see him one day so he could . . .
ask him why he did it." Mr. Lee stated that, while the
Defendant did not talk "about it constantly, "
"it came up a couple times[.]" In addition, one
Sunday when Mr. Lee and the Defendant were eating dinner
together at the Journey Home, the Defendant pointed out the
victim as the individual who had "robbed" him.
According to Mr. Lee, the Defendant asked him to go
"find out" where the victim was living, but Mr. Lee
did not do that because he "could see there was a little
bit of animosity there" and he did not "want to get
to Mr. Lee, he was at Mr. Brothers's apartment on Sunday
May 4, 2014,  when the Defendant left and returned
"a couple of hours" later with "blood on his
t-shirt, blood on his pants, and blood on his shoes."
Mr. Lee described that there were "dots" of blood,
or what looked like "splatter paint, " on the
Defendant's shirt and a concentration of blood
"stuck" on his right shoulder "like he hit
something." The Defendant said that he had been involved
in a bike wreck.
testified that, after the Defendant had showered, he emerged
from the bathroom with a plastic bag. The Defendant then
asked Robert Strange, who was also in the apartment, "to
get rid of" the plastic bag, which Mr. Lee assumed
contained the Defendant's bloody clothes. According to
Mr. Lee, Mr. Strange left with the bag. Because the Defendant
did not really "trust Mr. Strange" that much, he
asked Mr. Lee to accompany him. Mr. Lee left the apartment
and caught up with Mr. Strange, and the two men walked to
Dodge's Store. They were looking for a place to throw the
bag away and "were going to throw it in the creek,
" but Mr. Lee saw "a cop car sitting there"
and told Mr. Strange not to throw it in the creek. Mr. Lee
claimed that he did not want to "get in trouble for
littering" and that he "didn't think anything
was amiss with it." So, they "walked on around the
creek" and to the store. Mr. Lee went inside the store
and told Mr. Strange, "[Y]ou do what you need to do with
the bag. Put it in the dumpster or whatever." When Mr.
Lee exited the store, Mr. Strange did not have the bag
anymore. According to Mr. Lee, after they returned to the
apartment, the Defendant left.
believed that he saw the Defendant at Mr. Brothers's
apartment the following weekend. According to Mr. Lee, when
he saw the Defendant on this occasion, the Defendant asked
him "what did Mr. Strange do with the bag[, ]" and
Mr. Lee told him that he "didn't know." Mr. Lee
recalled that the Defendant and Mr. Strange later left the
was also asked if he knew the Defendant to carry any weapons.
Mr. Lee said that the Defendant carried a "Rambo
knife" or "fixed blade knife" in a sheath on
his hip and that the Defendant was in possession of the knife
"[e]very time" he saw him. Mr. Lee described the
Defendant's knife as a knife with "the little
compass on the top, " "double edges, " and
"serrated on one side and like razor on the other
side." Mr. Lee stated that he saw the Defendant sharpen
the knife twice.
cross-examination, Mr. Lee explained that the garbage can
inside the apartment was full, so regardless, Mr. Strange
would have had to "take [the plastic bag] outside
anyway." Mr. Lee affirmed that he "didn't think
anything bad or sinister" when the Defendant returned
bloody to the apartment that evening.
Ortega testified that he knew the victim "well" and
that he also knew the Defendant. When asked if he knew the
Defendant "to ever be in possession of a knife, "
Mr. Ortega responded affirmatively. Mr. Ortega explained that
the Defendant "used to wear" "quite a long
knife" "on his side." According to Mr. Ortega,
"[i]t was a knife that [the Defendant] wore on his
side[, ] like in a pocket thing or whatnot"; "[i]t
wasn't in a case."
Ortega testified that he remembered Sunday, May 4, 2014,
"well." Around midday, Mr. Ortega went to
Dodge's Store, bought a beer, and sat in the bushes
behind the store where he drank the beer. While sitting
there, the victim came "up from underneath the
underpass[.]" According to Mr. Ortega, the victim
"had some beer and vodka in a water bottle, " so
they sat on a log and drank and "caught up on old
times." They then went to Camino Real restaurant, a
place that feeds the homeless. After eating, they decided to
come to the town square and panhandle for more money for
beer. Sometime after dark that evening, they left the square
headed back towards Dodge's Store when they ran into the
Defendant. According to Mr. Ortega, the Defendant and the
victim began to have a normal conversation; they were not
confrontational. When the victim asked Mr. Ortega if he
wanted to hang out with him and the Defendant, Mr. Ortega
declined. The Defendant then reached into his backpack and
handed Mr. Ortega a beer, and the Defendant and the victim
"took off walking" in the direction of Dodge's
Store. Mr. Ortega was unsure where exactly the two men were
Ortega testified that he was supposed to meet with the victim
two days later and "go down to Chattanooga because [the
victim] was promised work." According to Mr. Ortega,
they were scheduled to meet "on that same log"
behind Dodge's Store where they had drank together and
where the victim had left his "personal property."
However, the victim never showed up. Mr. Ortega identified a
photograph of the area where the victim had been sleeping.
Ortega was asked on cross-examination what the "homeless
community [was] like in Murfreesboro, " and he
responded, "It's not all that great."
Thereafter, defense counsel probed further:
Q. It's a pretty violent community, isn't it?
A. Pretty much, yes.
Q. You have been assaulted before, haven't you?
A. Of course.
Q. You have been robbed?
A. Yes, sir.
Robert Strange was declared unavailable for trial, Mr.
Strange's preliminary hearing testimony from September
24, 2014, was admitted into evidence. During this testimony,
Mr. Strange conveyed that he was twenty-three years old and
that he was in custody for a violation of probation on a
public intoxication conviction. Mr. Strange stated that he
knew both the Defendant and the victim. He was familiar with
Defendant because the Defendant rode his bicycle every
weekend from Nashville to visit. Mr. Strange recalled that
one Sunday evening, in early May 2014, he was outside of Mr.
Brothers's apartment hanging out with the Defendant, the
victim, and Mr. Ortega.
to Mr. Strange, he had about three beers that evening; the
Defendant was already drinking beer; and the victim was
intoxicated. The victim asked the Defendant and Mr. Ortega to
accompany him to his motel room at the Imperial Inn, and they
agreed. Mr. Strange said that the Defendant and the victim
"seemed calm" around each other at that time. In
addition, Mr. Strange estimated that it was between 7:30 and
8:00 p.m. when the three men left together because it was
Strange testified that the Defendant returned to the
apartment about an hour to an hour and a half later and was
"covered in blood." According to Mr. Strange, he
saw blood on the Defendant's clothes, arms, face, and
legs. The Defendant asked Mr. Lee for a bag for his clothes
and then took a shower. Mr. Strange testified that,
thereafter, the Defendant instructed him to throw the clothes
in the creek behind Dodge's Store. Mr. Strange said that
he and Mr. Lee weighted the bag with bottles and rocks, which
was Mr. Lee's idea. Mr. Strange then threw the bag in the
creek from the walking bridge.
to Mr. Strange, he encountered the Defendant a week later on
the walking bridge on the greenway near Dodge's Store,
and the Defendant asked him to show him where he had thrown
the bag into the creek. Mr. Strange also said that the
Defendant asked for help with moving a body, and the
Defendant instructed him to grab a tarp and crowbar from the
Defendant's campsite. Mr. Strange complied. However,
before searching, they went to eat at the Journey Home where
they saw Cody Simmons. Afterwards, the three men went to look
for the bag of clothes but did not find it. They also did not
find the body. Mr. Strange said that he did not see the
Defendant with a weapon that evening. According to Mr.
Strange, he did not go to Mr. Brothers's apartment
anymore after this incident. Mr. Strange also testified that
he did not go to the police because he "was
frightened" of the Defendant.
Simmons testified that he had met the Defendant "a
couple of times" and that he interacted with the
Defendant several times in May 2014, including once at Mr.
Brothers's apartment when he, Mr. Lee, Mr. Brothers, Mr.
Strange, and the Defendant were all present. According to Mr.
Simmons, the third time he encountered the Defendant was one
evening when the Defendant and Mr. Strange "walked up to
the Journey Home" for pizza night. Mr. Strange was
carrying a tarp. Mr. Simmons described Mr. Strange as acting
terrified, and Mr. Strange said that he wanted "to
lose" the Defendant. Mr. Simmons joined the two men, and
they "walked down the greenway" behind Dodge's
Store. According to Mr. Simmons, the Defendant then
"pulled a silver gun out on" them and started
"waving it back and forth." The Defendant ordered
Mr. Strange "to take his boots off and get in the
water." Mr. Simmons maintained that they were
"looking for something, " although he did not know
what at the time. Mr. Simmons estimated that they looked for
approximately thirty minutes but found nothing. After they
were unsuccessful, all three men returned to Mr.
Simmons testified that he knew the Defendant to carry a
knife. According to Mr. Simmons, the Defendant carried a
knife "in a sheath on his . . . belt loop." Mr.
Simmons agreed that he had never seen the Defendant in
possession of a handgun other than on this one evening.
Davis testified that he met the Defendant while they were
incarcerated in the Rutherford County Jail. According to Mr.
Davis, they developed a relationship when the Defendant began
to attend a Bible study taught by Mr. Davis. However, at the
time of the Defendant's trial, Mr. Davis was no longer
incarcerated and was working at a manufacturing job in
Franklin, Tennessee. Mr. Davis relayed that he spoke with law
enforcement on September 17, 2015, about the Defendant's
confession to him and that he was released from the
Rutherford County Jail on September 22, 2015.
Davis recalled that, one day after Bible study, he had a
conversation with the Defendant when the Defendant just
"started talking to [him] about" the victim's
murder. Although the Defendant did not provide Mr. Davis with
a name, he told Mr. Davis that the victim had stolen from him
twice. The Defendant explained to Mr. Davis that he did not
do anything about the first theft, but after the second time,
that "God . . . deliver[ed] the man into [the
Defendant's] hands." The Defendant said that he
asked the man to take a walk with him and that they proceeded
to "go walk up the creek bank." While on the creek
bank, the Defendant attacked the man, getting on top of him
and cutting him with a knife. The Defendant maintained that
"the man had asked for forgiveness, " but that when
the man "said God bless you, " the Defendant
attacked him. According to Mr. Davis, the Defendant said that
the man "pleaded with him or something" and that he
cut the man's throat to keep "[t]he man from
screaming for help."
Defendant claimed that a police car drove by during the
attack and that the light from the car "illuminated his
body[, ]" so "he rolled off the man over into the
creek." It was during that process that the Defendant
lost his glasses. The Defendant then recounted to Mr. Davis
how, "after the incident, he went to somebody's
house to change clothes, " "put his clothes in a
bag, " and asked someone "to get rid of" them.
The Defendant also told Mr. Davis "that the police had a
knife, but it was not the knife that he had used." He
further conveyed to Mr. Davis that it rained after the attack
and "that would have [had] an [e]ffect on the
evidence[.]" Moreover, according to Mr. Davis, the
Defendant "believed that he wouldn't be convicted