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State v. Warner

Court of Criminal Appeals of Tennessee, Nashville

May 9, 2018


          Assigned on Briefs October 18, 2017

          Appeal from the Circuit Court for Rutherford County No. F-72670 David M. Bragg, Judge

         The 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."[1] Following our review of the record and the applicable authorities, we affirm the judgment of the trial court.

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

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which, Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.




         In May 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, 2016.

         A. Discovery of the victim's body and search of the surrounding area.

          On May 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 victim's neck.

         Detective 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 cigarette butt.

         The 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.

         On May 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.

         B. Testimony from witnesses acquainted with the Defendant.

         John Watson testified that he was "in [the Defendant's] company" on the evening of August 23, 2013.[2]On this occasion, Mr. Watson observed the Defendant in possession of "three fixed blade knives on his right side in a sheath."

         Mr. 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.

         Because 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 bus.

         Three 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."

         Sixty-year-old 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.

         Mr. 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."

         Although 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."

         The 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 be trusted.

         The 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 glasses.

         After 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, "[3]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.

         Mr. 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.

         On 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 police.

         Mr. 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.

         George 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 bitty guy."

         Mr. Lee 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 involved[.]"

         According to Mr. Lee, he was at Mr. Brothers's apartment on Sunday May 4, 2014, [4] 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.

         Mr. Lee 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.

         Mr. Lee 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 apartment together.

         Mr. Lee 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.

         On 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.

         Timothy 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."

         Mr. 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 headed.

         Mr. 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.

         Mr. 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.

         After 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.

         According 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 dark outside.

          Mr. 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.

         According 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.

         Cody 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. Brothers's apartment.

         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.

         Timothy 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.

         Mr. 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."

         The 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[] ...

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