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State v. Frelix

Court of Criminal Appeals of Tennessee, Nashville

June 6, 2018

STATE OF TENNESSEE
v.
BRIAN C. FRELIX

          Session February 14, 2018

          Appeal from the Circuit Court for Williamson County No. I-CR047982-C Joseph A. Woodruff, Judge

         A Williamson County jury convicted the Defendant, Brian C. Frelix, of four counts of aggravated robbery, four counts of aggravated assault, one count of aggravated burglary, and one count of theft of property valued at one thousand dollars or more, but less than ten thousand dollars. After a sentencing hearing, the trial court sentenced the Defendant to an effective sentence of thirty-eight years in the Tennessee Department of Correction. On appeal, the Defendant asserts that the trial court improperly: (1) denied his motion to suppress; (2) allowed Special Agent Andrew Vallee to testify based upon unreliable phone records; (3) admitted letters and testimony constituting hearsay; (4) admitted the victim's stolen credit cards; (5) admitted information from a co-defendant's Facebook page; and (6) imposed consecutive sentences. After review, we affirm the trial court's judgments.

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

          Jonathan W. Turner, Franklin, Tennessee, for the appellant, Brian C. Frelix.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; Kim R. Helper, District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts

          This case arises from an October 12, 2013, home invasion in Williamson County, Tennessee. The Defendant and a co-defendant entered a residence where the victims, a husband, wife, and two minor sons were present. The Defendant held the victims at gunpoint while the co-defendant searched the house for valuables. A Williamson County grand jury returned a fourteen-count indictment against the Defendant and two co-defendants. The Defendant was indicted for three counts of aggravated kidnapping, one count of especially aggravated kidnapping, four counts of aggravated robbery, one count of aggravated burglary, and one count of theft of property valued at more than one thousand dollars, but less than ten thousand dollars. In April 2014, a superseding indictment charged the Defendant additionally with four counts of aggravated assault.

         A. Motion to Suppress

         The Defendant filed a motion to suppress, asserting that his Fifth, Sixth, and Fourteenth amendment rights had been violated. At the suppression hearing, the following evidence was presented: Alan Keller, a Brentwood Police Department detective, testified that, in March 2014, he received a letter from a Williamson County jail inmate, Michael Reynolds, indicating that Mr. Reynolds had information from the Defendant about the home invasion. Mr. Reynolds and the Defendant had been cellmates for a period of time while incarcerated. Detective Keller conducted a recorded interview with Mr. Reynolds on March 20, 2014, at the Brentwood Police Department, about his alleged conversations with the Defendant.

         Detective Keller testified that he never asked Mr. Reynolds to assist in the investigation or act as an agent in obtaining information from the Defendant. During the interview, Mr. Reynolds provided information that he would not have reason to know "without speaking to somebody involved in the crime." Detective Keller denied making promises to Mr. Reynolds with respect to his pending cases, but he did tell Mr. Reynolds that he "would ask the District Attorney . . . if there was anything that [she] could do for him." In the recorded interview, Mr. Reynolds asked Detective Keller about the possibility of putting money in his commissary account to enable him to communicate with law enforcement about any information he learned. At the hearing, Detective Keller denied putting money in the commissary account but said that he gave Mr. Reynolds two stamps that were in his desk drawer.

         Detective Keller denied providing Mr. Reynolds with coffee "and/or any other incidentals" during the interview in exchange for his testimony or cooperation. He explained that the Brentwood Police Department policy was to provide food or beverages, "basic needs, " during interviews. Detective Keller again met with Mr. Reynolds on March 26, 2014, when Mr. Reynolds confirmed that the Defendant wanted to speak with Detective Keller and provided a handwritten letter from the Defendant stating the same. That afternoon, the Defendant was transported to the police department and spoke with detectives. Detective Keller explained that the Defendant was transported to the police department around lunchtime and, because the Defendant and Mr. Reynolds would miss lunch at the jail, he provided the men with lunch. He explained that this was "standard practice."

         The letter Mr. Reynolds delivered from the Defendant to Detective Keller on March 26, 2014, was as follows:

My name is Brian Cameron Frelix: [date of birth] [Social Security number]. I am authorizing Mike Reynolds to bring this letter to you. I am writing to cooperate & discuss the allegations and charges made against me. And other crimes that were committed that I am not charged with that happened earlier in the summer that my co-defendants did committ. [sic] Now I understand my Miranda Rights and do not need my lawyer present. The only way that this will happen is if Mike Reynolds is in the room with me while the interview is taking place. I'm not trying to be rude or heavy-handed, but I don't want to negogiate [sic] that part of the deal. I was not forced into writing this letter and I wrote this letter at my own free will. I'm not under any mind-altering medications and I'm writing this letter in a completely sane & sound mind.

         The letter is dated March 21, 2014, and signed by the Defendant. During the recorded interview, the Defendant confirmed that the letter was written by him. Detective Keller also reviewed the Defendant's Miranda rights with him and the Defendant signed a waiver of those rights. The signed wavier was admitted into evidence. Detective Keller asked the Defendant if he wanted his attorney present, and the Defendant stated that he did not. The Defendant confirmed that he wanted Mr. Reynolds in the room during the interview.

         Detective Keller testified that during the interview, the Defendant never indicated that he was "under duress, " and never mentioned any physical complaints or complaints about mistreatment in jail.

         On cross-examination, Detective Keller confirmed that he was aware at the time of the interview that the Defendant had an attorney. Detective Keller agreed that he provided Mr. Reynolds with coffee and a bag of chips during the March 20 interview. He also allowed Mr. Reynolds to use the phone. Detective Keller agreed that he told Mr. Reynolds that he could not act as an agent for the police department. During the March 26 interview involving the Defendant, Detective Keller agreed that several times Mr. Reynolds "reminded [the Defendant] of something that . . . [the Defendant] had told him."

         Carol Hughes, a Williamson County Sheriff's Office sergeant, testified that she oversaw the records division. Sergeant Hughes provided the Defendant's and Mr. Reynolds' jail records. The trial court entered the records into evidence. Sergeant Hughes said that the Defendant entered the Williamson County jail on October 16, 2013. She said that the Defendant had "quite a few jail infractions" and was placed on "lockdown" due to his behavior. The first time the Defendant was placed on lockdown was October 30, 2013. Based upon subsequent infractions, the Defendant remained on lockdown until July 2014. Sergeant Hughes explained that a lockdown occurs when "an inmate commits a jail infraction and they lose privileges. And they're removed from an open dorm pod and moved into a single man cell or a double man cell."

         Sergeant Hughes testified that Mr. Reynolds and the Defendant shared a jail cell on the lock down unit from March 13, 2014 until March 20, 2014.

         During the suppression hearing, both the defense and the State presented portions of the video recorded interviews, and the trial court stated its intent to review the interviews in their entirety. We have reviewed the March 20 interview with Mr. Reynolds and the March 26 interview with Mr. Reynolds and the Defendant. We summarize the discussion during both interviews in chronological order. At the onset of the March 20 interview, Mr. Reynolds stated that he "hope[d]" that the officers would speak to the District Attorney on his behalf but that, ultimately, he was motivated to speak with the detectives because he was troubled by the thought of the eleven-year-old minor victim having a gun held against his head during the course of the offense. Detective Keller stated to Mr. Reynolds that he could not make any promises with regard to the disposition of Mr. Reynolds' pending cases. Mr. Reynolds responded that he understood. Mr. Reynolds then provided details about the October 16 offense, such as how the intruders selected the house, how they entered, what occurred inside, and what the men did following the offense. Mr. Reynolds then recounted events surrounding other burglaries and robberies under investigation in other counties.

         On the video recording, Mr. Reynolds suggested that he might be able to obtain more information from "Quan, " one of the co-defendants. Detective Keller responded that he could not ask Mr. Reynolds to act as his agent. Detective Keller stated that "if it happen[ed] on its own, " that was "fine" but that he could not instruct Mr. Reynolds to speak with anyone. Mr. Reynolds stated that he understood. Detective Keller told Mr. Reynolds that the "case was good before" but that Mr. Reynolds' information "confirm[ed] everything." Mr. Reynolds asked if it would be helpful for him to encourage the Defendant to write down the information. Detective Keller again responded that he "can't have [Mr. Reynolds] do that." Mr. Reynolds then asked for a cigarette and another cup of coffee. Mr. Reynolds stated that it cost him money to communicate with the detectives through mail and asked if someone would put ten or fifteen dollars in his account. Detective Keller responded that he was not sure he could do anything in that regard but that he would "look into it." He suggested other possible avenues for communication.

         Detective Keller left the room to get coffee and when he returned, Mr. Reynolds asked about using a phone in the room. Detective Keller gave permission for use of the phone and then left the room. Mr. Reynolds placed a brief phone call inquiring about money to put in an account. He then placed two other calls that appeared to be to attorneys representing him in other counties. He left messages notifying them that he had spoken with police providing information on unrelated cases. He placed two unanswered calls and then spoke with a female about letters he had written to her.

         On the March 26, 2014 recording, Mr. Reynolds and the Defendant were alone in the room, and Mr. Reynolds encouraged the Defendant to be candid with the detectives and "don't hold nothing back." He told the Defendant to "be truthful, man." The two appear to have a congenial relationship and, after an officer brings in food, the two eat lunch together. The Defendant showed no observable sign of fear, discontent, or concern. Mr. Reynolds continued to advise and encourage the Defendant to be honest. They discussed the status of a co-defendant. They also talked about rap music and a television show.

         The detectives entered the room and Detective Keller noted that he had already issued the Miranda rights to the Defendant but that he would review the rights again. He then confirmed that the Defendant initiated the contact with the police, and the Defendant identified the letter that Mr. Reynolds delivered to Detective Keller on the Defendant's behalf. The Defendant confirmed that the letter was in his handwriting and that he wrote the letter. The Defendant waived his rights and signed the waiver. The Defendant agreed that no coercion or threats had been used in order to obtain his statement. Detective Keller acknowledged Mr. Reynolds' presence in the room and told the Defendant that Mr. Reynolds could be removed at any time. Another detective asked the Defendant if he wanted his attorney present, and the Defendant said no. The detective then confirmed with the Defendant that he was willingly speaking with the detectives.

         Detective Keller told the Defendant that they would review the Williamson County home invasion case, the case at issue in this appeal, first and then the Defendant was free to talk about any of the cases in other counties. The Defendant agreed and recounted what occurred leading up to the home invasion and their entry into the Brentwood residence when Mr. Reynolds interrupted to ask to go the bathroom. After he exited the room, Detective Keller asked the Defendant whether he wanted to continue without Mr. Reynolds in the room. The Defendant responded that he wanted to continue with his statement. The Defendant talked in a narrative manner about various offenses committed in other counties. He was occasionally interrupted with follow-up questions from the detectives. At one point, Mr. Reynolds questioned what the Defendant was saying based upon a previous conversation between the two men at the jail. The Defendant, however, stood his ground as to his version of the events. Mr. Reynolds again left the room, and the Defendant continued with the interview.

         On the recorded video, the detectives left the room, and Mr. Reynolds and the Defendant are left alone. The Defendant ate while Mr. Reynolds told the Defendant, "Don't leave nothing out" and told him not to lie. He then talked about the food they ate and digestion. The detectives returned and the interview continued. Detective Keller told the Defendant that he was free to talk about anything he wanted at that point in the interview. The Defendant disclosed details about unrelated offenses.

         After the Defendant concluded his statements regarding offenses in other counties, the detectives left the room, leaving the Defendant and Mr. Reynolds alone in the room. Mr. Reynolds told the Defendant that he was concerned that the Defendant had withheld information. The Defendant claimed that he "isn't sure" about some of the information the detectives were asking him. He maintained that he did not know everyone's name involved and said that he had not seen one of the people discussed in six months. Mr. Reynolds then leaves the room and when he returned, the Defendant was escorted to the bathroom. While the Defendant was out of the room, Mr. Reynolds told Detective Keller that he was going to attempt to speak with "Quan, " and Detective Keller responded that he could not assist or be involved in any way. The Defendant re-entered the room during the discussion, and Mr. Reynolds says to the Defendant, "We are talking about Quan."

         The Defendant testified during the suppression hearing about his initial appearance in General Sessions Court. He recalled having "an incident" in jail that resulted in the Defendant being "tased" on his "right buttock." The Defendant said that he also suffered an injury to his feet but, due to the tasing, he could not remember what had happened, and the deputies would not tell him how his feet were injured. He said that, following his arrest, he experienced withdrawal symptoms from his drug use. He said that he experienced hallucinations and talked to "angels and [his] mom." He said that, at the time, he believed "everybody was trying to kill me."

         The Defendant testified that he was placed on lockdown for nine months. He said that on lockdown a prisoner is released from his cell for only one hour a day. The Defendant said he was also placed in the "Crows Nest" for two and a half weeks. He described it as "the worse place to be." He said that he wore a "turtle suit, " and was "cold all the time." He said that he "got tased" and would wake up "hitting the wall." He recalled that he "cried a lot, " did not eat, and did not sleep during this time, which added "to all the craziness." From the "Crows Nest, " the Defendant was moved to a "suicide pod" for a month. He described this as "pretty much like the Crows Nest, except there were people around."

         The Defendant testified that in late February, Mr. Reynolds was placed in a cell with him. The Defendant said that he and Mr. Reynolds remained cellmates until the end of March. He confirmed that Mr. Reynolds was his cellmate on the day the Defendant gave a statement to the police. About Mr. Reynolds, the Defendant stated that he was "pushy" and "you could tell he wanted to know some information about anything." The Defendant stated his awareness that Mr. Reynolds was trying to obtain information about the Defendant's case from him and noted that he also observed Mr. Reynolds engaging in this behavior with other inmates. The Defendant said that he "could already tell [Mr. Reynolds] was trying to talk to [him] and get [him] to say something." The Defendant recalled that on March 20, 2014, Mr. Reynolds became "more aggressive in his approach." On that date, the Defendant was also moved out of the cell for a few hours due to a misunderstanding. When he returned to the cell he had shared with Mr. Reynolds, Mr. Reynolds was gone. The Defendant was asleep when Mr. Reynolds returned. Mr. Reynolds woke the Defendant and told him that he had been questioned by the police about the Defendant.

         The Defendant testified that Mr. Reynolds encouraged the Defendant to talk with police but when the Defendant "started getting mad, " Mr. Reynolds "let it all go." The following day, Mr. Reynolds again encouraged the Defendant to speak with police. When the Defendant declined to do so, Mr. Reynolds threatened to harm the Defendant's family so the Defendant agreed to write a letter to the police as dictated by Mr. Reynolds. The Defendant stated that Mr. Reynolds also determined that the Defendant's lawyer should not be present but that Mr. Reynolds would attend the police interview with the Defendant. During the police interview, Mr. Reynolds would remind the Defendant of details that Mr. Reynolds wanted him to say.

         The Defendant testified that, during the time leading up to the police interview, he was depressed, cried a lot, and was lonely. He said that he had had little experience with jail and little human interaction due to his placement on lockdown.

         On cross-examination, the Defendant testified that he had graduated from high school and was in his first year of college at Tennessee State University at the time of the offense. At the time he was taken into custody, he was using "Lean, " Xanax, marijuana, and drinking five or six bottles of "regular cough syrup" a day. He stated that his behavior when initially taken into custody was due to withdrawal from these drugs. The Defendant stated that Sergeant Hughes "fabrica[ted]" his testimony that Mr. Reynolds and the Defendant were housed together from March 13 through March 20, 2014. The Defendant was adamant that Mr. Reynolds and he shared a cell on the Defendant's birthday, March 3.

         The Defendant testified that he was afraid of Mr. Reynolds and believed that Mr. Reynolds was working with the Brentwood police. He stated that he wanted his attorney present but that he was afraid of Mr. Reynolds, so he told the police he did not want his attorney. The Defendant said that had he told the police he wanted his attorney or that he did not want Mr. Reynolds in the room, he would have been putting his family in danger. The Defendant identified a letter he wrote on March 30, 2014, to Detective Keller. He agreed that, at that time, Mr. Reynolds was no longer in the same cell with him. In the letter, the Defendant referenced his March 26 statement to police, stating that he wanted to correct a misstatement regarding the Belle Meade case. The letter reads, in part, "However everything else that I mentioned was undoubtedly the utmost truth. I'm a nuisance on your life for which you, the victims, and other law enforcement don't need at this time, which is why I'm writing you now trying to right all the wrongs." The Defendant denied any truth to his statements in the March 30 letter. Although Mr. Reynolds was no longer housed with him, the Defendant said he wrote the letter under Mr. Reynolds' instruction. He said that Mr. Reynolds sent him messages through other inmates at the jail, checking to see if he had mailed the letter yet. Still in fear for his family's safety, the Defendant drafted the letter and mailed it to Detective Keller.

         The State then played a portion of a recorded jail phone call between the Defendant and his father that took place immediately after the Defendant provided his statement to the police on March 26, 2014.

Defendant: Hey Dad. Okay, I been - I been praying about this, and - I'll just be honest. They got me. They got me dead cold, Dad. And, I mean, they have me to the middle. I mean, they - they got- they had me pinned down. I mean, like - the evidence - they just got me.
Father: How do you know?
Defendant: Cuz, I mean - I just know. I mean, one of my friends already talked, and - it just all - it just looked bad.
Father: So you talked to them?
Defendant: Hmmm?
Father: So what does that mean?
Defendant: I'm better off. I mean, if I wouldn't have talked - I mean, if I would have went to trial, Dad, they would have gave me life. I mean . . .
Father: What are they going to give you now?
Defendant: I don't know, but whatever I get now, it's gonna be ten times better than I would have got. Cuz I didn't tell them just about this incident. I told them about this incident and some other ones that I know about. And, uh, they were just -
. . . .
Defendant: I mean, if I get a good lawyer, it could - it could - I just need a - a good lawyer, really.
. . . .
Father: When did you talk to them? Today?
Defendant: Yeah, just a minute ago.
Father: You walked in there and talked to them?
Defendant: Yeah, I mean, they just started asking me questions and I just started answering them.
Father: Okay. I mean - at least they're gonna get you out of lockdown, anyway.
Defendant: I don't even know if they're going to do that.
Father: Yeah.
Defendant: But, I mean - is, I'm - I'm way better off. If I would have been fighting this, Dad, it - it wouldn't have turned out good. I already know it. They already brought, uh - one - the one guy - that uh, they let out, they brought him back.
Father: Yeah?
Defendant: So, and I just found that out. So, and, they just - they, I mean, I think I did the ...

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