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State v. Rimmer

Court of Criminal Appeals of Tennessee, Jackson

May 21, 2019

STATE OF TENNESSEE
v.
MICHAEL RIMMER

          Session September 5, 2018

          Appeal from the Criminal Court for Shelby County No. 98-01033, 98-01034 Chris Craft, Judge

         The Defendant, Michael Rimmer, was convicted by a Shelby County jury of first degree premeditated murder, first degree felony murder, and aggravated robbery. T.C.A. §39-13-202(1), (2) (Supp. 1998) (first degree murder), §39-13-402 (1997) (aggravated robbery). The trial court merged the felony murder conviction into the premeditated murder conviction. The jury sentenced the Defendant to death for the first degree murder conviction, and the trial court sentenced him to eighteen years for the aggravated robbery conviction and ordered it to be served consecutively to the sentence for the murder conviction. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions for first degree murder and aggravated robbery; (2) the trial court erred in denying his motion to dismiss the felony murder charge; (3) the trial court erred in denying his motion to suppress DNA evidence; (4) the trial court erred in not striking the State's opening statement or declaring a mistrial based on a comment made by the State; (5) the trial court erred in admitting evidence of the Defendant's prior convictions; (6) the trial court erred in limiting the testimony of William Baldwin; (7) the trial court erred in admitting a drawing of the backseat of the Honda the Defendant was driving when he was arrested; (8) the trial court erred in finding James Allard was unavailable and allowing his testimony from the previous trial to be entered into evidence; (9) the trial court erred in admitting hearsay testimony through witness Rhonda Bell; (10) the trial court erred in allowing Chris Ellsworth to display his scars to the jury; (11) the trial court erred in allowing hearsay testimony through witness Tim Helldorfer; (12) the trial court erred in limiting the testimony of Tim Helldorfer regarding a photograph identification and the release of the Honda from police custody; (13) the trial court erred in allowing Joyce Carmichael to testify about Tommy Voyles; (14) the trial court erred in admitting previous testimony of deceased or otherwise unavailable witnesses; (15) the trial court erred in admitting Richard Rimmer's prior statement and related exhibits as substantive evidence; (16) the trial court erred in limiting the testimony of Kenneth Falk; (17) the trial court erred in limiting the testimony of Marilyn Miller; (18) the trial court erred in excluding documents relating to a lawsuit involving the Shelby County Jail; and (19) the trial court erred in applying an aggravating factor and imposing a consecutive sentence for the aggravated robbery conviction. Following our review, we affirm the judgments of the trial court.

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

          Paul Bruno, Nashville, Tennessee; and Robert Parris, Memphis, Tennessee, for the appellant, Michael Rimmer.

          Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Andrew C. Coulam, Assistant Attorney General; Rachel M. Stephens and Pamela S. Anderson, District Attorneys General Pro Tem, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall and Norma McGee Ogle, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         PROCEDURAL BACKGROUND

         On November 7, 1998, the Defendant, Michael Rimmer, was convicted by a Shelby County jury of first degree premeditated murder, first degree felony murder, aggravated robbery, and theft of property valued at $1, 000 or more but less than $10, 000. The jury imposed a sentence of death. On appeal, this court affirmed his convictions but reversed the sentence of death and remanded the case to the trial court for a new sentencing hearing. See State v. Michael D. Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *1 (Tenn. Crim. App. May 25, 2001).

         At the conclusion of the January 2004 resentencing hearing, the jury again imposed a sentence of death. On appeal, this court affirmed. See State v. Michael Dale Rimmer, No. W2004-002240-CCA-R3-CD, 2006 WL 3731206, at *1 (Tenn. Crim. App. Aug. 13, 2007). The Tennessee Supreme Court, likewise, affirmed. See State v. Rimmer, 250 S.W.3d 12, 18 (Tenn. 2008).

         Thereafter, the Defendant filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court granted relief. The court found that defense counsel's "overburdened case load caused both counsel and the auxiliary members of the defense team to conduct a seriously deficient investigation of petitioner's case." In particular, counsel did not discover that a witness identified a man other than the Defendant as the person he saw at the scene of the crime. Although the court acknowledged that the State's evidence against the Defendant was strong, it found that the undiscovered evidence called into question the reliability of the jury's verdict. The post-conviction court concluded that the Defendant was entitled to a new trial. The State did not appeal. Prior to the retrial, the trial court severed the theft charge.

         At the subsequent trial in April 2016, the evidence showed that the Defendant and the victim had an on-and-off relationship in the late 1970s and early 1980s. In 1989, the Defendant pleaded guilty to burglary in the first degree, aggravated assault, and rape of the victim. While serving his sentence, the Defendant threatened to kill the victim to fellow inmates Roger Lescure and William Conaley. Both inmates testified that the Defendant became very agitated when discussing the victim. The Defendant also discussed methods for disposing of a body.

         The Defendant was released from prison in January 1997 and began working for an automobile repair shop. Through his work, he met Steve and Cheryl Featherston after the Defendant assisted in repairing a car at their home. Later that month, the Featherstons reported to the police that a 1998 maroon Honda Accord disappeared from their driveway. Mr. Featherston testified that at the time the car disappeared, it was very clean and did not have any upholstery stains.

         During this time, the victim worked as a night clerk at a Memphis motel. She reported to work on the night of February 7, 1997, and guests at the motel established that she was present until approximately 1:45 a.m. on February 8. However, after that time, the victim disappeared from the office, and she had no further communication with anyone. Her body has never been found.

         James Defevere checked into the motel between 1:00 and 1:15 a.m. on February 8. When guest Natalie Doonan went to the vending area adjacent to the front office between 1:30 and 1:45 a.m., she saw a man enter the lobby. The victim was behind the desk at this time. Dr. Ronald King was in the vending area around 1:40 a.m. and saw the victim allow a man into the office through the locked security door. Dr. King said the man drove a maroon car. Twenty to thirty minutes after Ms. Doonan left the vending area, she called the front desk but received no answer. Mr. Defevere returned to the office to check out around 2:25 a.m., but the victim was not in the office.

         James Darnell and Dixie Presley stopped at the motel between 1:30 and 2:00 a.m. to pick up a map, parking a few spaces from the night entrance. Ms. Presley waited in the car while Mr. Darnell went inside. She saw a maroon car parked in front of the office entrance with its trunk open. She thought this was odd because there was light rain. Mr. Darnell noticed a man standing next to the trunk of a maroon car, which had been backed into a parking spot with the trunk closest to the building. The man "had something rolled up in his arms," which the man placed in the trunk. Mr. Darnell said that the object was rolled up in a "blanket" and that the car sank when it was placed in the trunk.

         Mr. Darnell proceeded to the motel entrance, and the man who had been standing by the car quickly walked to the entrance, as well. Mr. Darnell opened the door and allowed the man to enter first. Mr. Darnell noticed the man had blood on his hands. When Mr. Darnell entered the lobby, he saw that the office door was open and that a different man was at the desk, pushing money under the window. Although Mr. Darnell could not identify the man who was outside and followed him into the office, Mr. Darnell identified the man behind the window as Billy Wayne Voyles.

         Raymond Summers, CSX Railroad yardmaster, testified that CSX housed its crews at the motel in February 1997. On February 7, Mr. Summers attempted to call the front desk between 2:45 and 3:00 a.m., but no one answered. He then drove to the motel, arriving approximately ten minutes later, and he found the night clerk's office abandoned. The secured door leading into the office was open, and Mr. Summers entered the office looking for a motel employee. He heard running water and followed the sound into the employee bathroom. In the bathroom, he saw blood on the sink basin and toilet and bloody towels on the floor, and the toilet seat was missing. He immediately left the motel in search of help. He encountered two Shelby County Sheriff deputies in a restaurant parking lot near the motel. The deputies immediately went to the motel, secured the scene, and called the Memphis Police Department (MPD).

         MPD crime scene investigators found large amounts of blood, a cracked sink, bloody towels, and a broken toilet seat. A bloody trail led from the bathroom, through the office, and to the curb outside the motel's night entrance. The motel manager testified that approximately $600 was missing from the office as well as several sets of sheets. Approximately $400 was missing from the register drawer and another $200 was missing from a lockbox kept in a backroom. The victim kept a key in her pocket in order to access the lockbox. The victim's purse was in the office, her car was in the parking lot, and her wedding ring, which she always wore, was found on the bathroom floor.

         Between 8:30 and 9:00 on the morning of February 8, the Defendant arrived at his brother's home in Mississippi. The Defendant drove a maroon Honda, and his shoes and the car were muddy. He claimed that he drove into a ditch. He carried a shovel to his brother and asked his brother to dispose of it. The Defendant also asked his brother to help him clean blood out of the backseat of the Honda. His brother allowed the Defendant to clean his shoes but declined the Defendant's request to stay at the home. After the Defendant left, his brother disposed of the shovel.

         Although the Defendant had only worked at the repair shop for approximately three weeks, his supervisor described him as a reliable worker. However, on February 10, the Defendant failed to report to work, and he was not seen again until March 5, when he was stopped for speeding in Johnson County, Indiana. Authorities in Indiana discovered that the car the Defendant drove was the Featherstons' missing Honda and that the Defendant was wanted for questioning in connection with the victim's disappearance.

         Receipts found in the car showed that the Defendant had traveled throughout the country since the victim's disappearance. He traveled through Mississippi, Florida, Missouri, Wyoming, Montana, California, Arizona, Texas, and Indiana. Investigators found large blood stains in the back seat of the car. A DNA sample collected from the victim's mother, Marjorie Floyd, was compared with forensic evidence found in the car and in the motel bathroom. DNA testing showed that the blood from the back seat was consistent with a daughter of Ms. Floyd and that blood from the motel bathroom and the car were consistent with the victim's DNA.

         While incarcerated in Indiana, the Defendant told his cellmate, James Allard, Jr., that he killed his "wife" in the motel where she worked. According to Mr. Allard, the Defendant told him that "he went to [the victim's] place of business, . . . that she let him in there" and that he attacked her "in a back room behind the service desk or whatever in the office part." The Defendant told Mr. Allard that he shot the victim in the chest. The Defendant stated that he had been "doing something" in the back room, that the victim "got up," and that he shot her a second time in the head. The Defendant described the scene as bloody, said he had "dumped the body," and expressed surprise that the body had not been found.

         Following his arrest, the Defendant participated in several escape attempts. The Defendant used toenail clippers to cut an opening in the recreation-yard fence. The Defendant discussed his plans with Mr. Allard, which included taking a guard hostage and killing a guard if necessary. Two "shanks," described as homemade knives, were located in the Defendant's Indiana cell. The Defendant attempted to escape again during his transport from Indiana to Tennessee. The Defendant obtained control of the van and led local law enforcement on a twenty-mile chase in Bowling Green, Ohio. Police stopped the van at a roadblock and apprehended the Defendant. After arriving at the Shelby County Jail, the Defendant and another inmate attempted to escape by sawing through the bars of their cell, breaking a window, and repelling down the building using a homemade rope.

         Upon this evidence, the jury convicted the Defendant of first degree premeditated murder, first degree felony murder, and aggravated robbery. The trial court merged the felony murder conviction into the premeditated murder conviction. At the bifurcated sentencing hearing, the victim's mother's previous victim impact testimony was read to the jury. As an aggravating factor, the State introduced certified copies of the Defendant's four prior felony convictions involving the use of violence against a person. The Defendant chose not to present any mitigating evidence. The jury sentenced the Defendant to death.

         ANALYSIS

         I. Sufficiency of the Evidence and Indictments

         The Defendant contends that no evidence connected him to the crimes, but his argument focuses on whether the indictments provided him with adequate notice that other persons could have been involved in the crimes. The Defendant argues that the evidence showed that two other men committed the murder and that no evidence supports a theory of criminal responsibility. The State responds that ample evidence connected the Defendant to the murder and to the robbery and that "the fact that others might have been involved was not an element of the charged offenses." Further, the State argues that criminal responsibility is a theory of guilt and need not be stated in an indictment.

         A. Sufficiency of the Evidence

         In determining the sufficiency of the evidence, the standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007). The State is "afforded the strongest legitimate view of the evidence and all reasonable inferences" from that evidence. Vasques, 221 S.W.3d at 521. The appellate courts do not "reweigh or reevaluate the evidence," and questions regarding "the credibility of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier of fact." State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

         "A crime may be established by direct evidence, circumstantial evidence, or a combination of the two." State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). "The standard of review 'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes, 331 S.W.3d at 380-81.

         First degree murder is the unlawful, intentional, and premeditated killing of another. T.C.A. §§ 39-13-201 (2014), 39-13-202(a)(1). In the context of first degree murder, intent is shown if the defendant has the conscious objective or desire to cause the victim's death. State v. Page, 81 S.W.3d 781, 790-91 (Tenn. Crim. App. 2002); T.C.A. § 39-11-106(a)(18) (2010) (amended 2011, 2014) (defining intentional as the "conscious objective or desire to engage in the conduct or cause the result"). A premeditated act is one which is

done after the exercise of reflection and judgment. "Premeditation" means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill preexist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.

Id. § 39-13-202(d). The question of whether a defendant acted with premeditation is a question of fact for the jury to be determined from all of the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Proof of premeditation may be shown by direct or circumstantial evidence. State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992).

         As relevant here, first degree felony murder is "[a] killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery[.]" T.C.A. § 39-13-202(a)(2) (2014).

         Aggravated robbery is defined, in relevant part, as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear," "where the victim suffers serious bodily injury." Id. §§ 39-13-401(a) (2014), -402(a)(1). Theft of property occurs when "with the intent to deprive the owner of property, [a] person knowingly obtains or exercises control over the property without the owner's effective consent." T.C.A. § 39-14-103(a) (2014).

         There was strong direct and circumstantial evidence establishing that the Defendant participated in the victim's murder and the aggravated robbery of the victim. The Defendant discussed his plan to kill the victim and to hide her body when he was previously incarcerated for assaulting the victim. Witnesses testified that a maroon car was seen at the motel, and the Defendant was seen with a maroon Honda the day after the victim's disappearance. The Defendant was driving the maroon Honda at the time of his arrest, and the car contained blood and DNA consistent with that of the victim. The motel bathroom contained the victim's blood and DNA, and the victim was never seen after the early morning hours of February 8, 1997. Testimony established that $600 and several sets of bed sheets were missing from the motel office. Some of the missing money was from a lockbox kept in a back room, and the victim kept the key to the box on her person. The Defendant told another inmate that he had been in the back room "doing something" after he shot the victim in the chest, that she "got up," and he shot her in the head. One of the witnesses saw a man place an object rolled up in a blanket in the trunk of a maroon car that was backed into a parking place with its open trunk facing toward the building. The car sank when the object was placed in the trunk.

         Witnesses and investigators described a bloody scene indicative of a violent struggle, supporting the conclusion that the victim suffered serious bodily injury. Witness testimony also established that two perpetrators participated in the offenses. Mr. Allard testified that the Defendant confessed to being present at the motel and to actively participating in the attack against the victim. Several hours after the victim disappeared, the Defendant arrived at his brother's home Mississippi in a maroon Honda, which was muddy. The Defendant's shoes were muddy, and he asked his brother to dispose of a shovel and to assist him in cleaning blood from the backseat of the car.

         Following the victim's disappearance, the Defendant also disappeared for approximately one month. He stopped going to work and did not pick up his last paycheck, although his supervisor described the Defendant as reliable. Receipts found in the Honda showed that the Defendant had traveled throughout the country before his arrest in Indiana. After his arrest, he told Mr. Allard that he had murdered the victim and hid her body. The Defendant also attempted to escape from police custody on three occasions. We conclude that sufficient evidence supports the first degree premeditated murder, first degree felony murder, and aggravated robbery convictions.

         B. Sufficiency of the Indictments

         An individual accused of a crime has the right to be informed of the nature and cause of an accusation against him. U.S. Const. amend. XI, XIV; Tenn. Const. art. 1, § 9. Pursuant to Tennessee Code Annotated section 40-13-202 (2012), an indictment

must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment . . . .
Our supreme court has said that an indictment is sufficient if it provides adequate information to enable the defendant to know the accusation against which he must defend, furnishes the trial court with an adequate basis for entry of a proper judgment, and protects the defendant from double jeopardy. See State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); see also Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000). The supreme court has held that "indictments which achieve the overriding purpose of notice to the accused will be considered sufficient to satisfy both constitutional and statutory requirements." State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). In this regard, "specific reference to a statute within the indictment may be sufficient to place the accused on notice of the charged offense." State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000). The indictment "need not allege the specific theory or means by which the State intends to prove each element of an offense to achieve the overriding purpose of notice to the accused." Hammonds, 30 S.W.3d at 300. Thus, the State is not required to assert a theory of criminal responsibility in the charging instrument. State v. Lemacks, 996 S.W.2d 166, 172-73 (Tenn. 1999).

         The indictments were not included in the appellate record, but they were read into evidence at the trial. The aggravated robbery indictment in No. 98-01033 read as follows:

Count 1, The grand jurors of the State of Tennessee . . . present that [the Defendant], during the period of time between February 7th 1997, and February 8th, 1997, in Shelby County, Tennessee, and before the finding of this indictment, intentionally or knowingly did take from [the victim] a sum of money of value by violence or putting [the victim] in fear. And the victim . . . suffered serious bodily injury, in violation of Tennessee Code Annotated 39-13-402 . . . .
The murder indictment in No. 98-01034 stated:
Count 1, The grand jurors of the [S]tate of Tennessee . . . present that [the Defendant] during the period of time between February 7th 1997, and February 8th, 1997, in [C]ounty of Shelby, Tennessee, and before the finding of this indictment did unlawfully, intentionally, and with premeditation kill [the victim] in violation of Tennessee Code Annotated 39-13-202 . . . .
Count 2[, ] The grand jurors of the State of Tennessee . . . present that [the Defendant], during the period of time between February 7th, 1997, and February 8th, 1997, in Shelby County, Tennessee, did unlawfully, with the intent to commit robbery, kill [the victim] during the perpetration of or attempt to perpetrate robbery, in violation of Tennessee Code Annotated 39-13-202 . . . .

         The elements of aggravated robbery, premeditated murder, and felony murder were clearly set forth in the indictment, along with the statutes for each. The Defendant contends that the State's rebuttal closing argument included statements that other persons were involved in the crimes and that these assertions "surprised" him. However, the State is not required to set forth its theory of guilt in the indictment. The State's argument was based on the proof submitted at trial, including witness testimony that more than one person was participated in the crimes at the motel on the night the victim disappeared. The Defendant is not entitled to relief on this basis.

         II. Double Jeopardy

         The Defendant asserts that the trial court erred in denying his motion to dismiss Count 2 of the indictment charging him with felony murder. He argues that the felony murder charge violated double jeopardy principles because a verdict was not returned on that count in his first trial. The State responds that the failure to return a verdict was not an implicit acquittal because the court had instructed the jury not to consider felony murder if it found the Defendant guilty of first degree premeditated murder.

         The double jeopardy clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb . . . ." Article 1, Section 10 of the Tennessee Constitution provides that "no person shall, for the same offense, be twice put in jeopardy of life or limb." The clause has been interpreted to offer the following protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969); see State v. Phillips, 924 S.W.2d 662, 664 (Tenn. 1996). The principle applies in cases in which "no final determination of guilt or innocence has been made" and in which a jury has been given the opportunity to return a verdict on a charge in one trial but failed to do so, impliedly acquitting the defendant of that charge. United States v. Scott, 437 U.S. 82, 92 (1978); Price v. Georgia, 398 U.S. 323, 329 (1970).

         During the Defendant's November 1998 trial, the trial court instructed the jury in pertinent part:

Indictment number 98-01034 charges the defendant with the offense of MURDER IN THE FIRST DEGREE. This indictment is in two (2) counts.
The First Count of indictment number 98-01034 charge that the defendant did unlawfully, intentionally and with premeditation kill RICCI LYNN ELLSWORTH. This offense embarces and includes the lesser offenses of MURDER IN THE SECOND DEGREE, and VOLUNTARY MANSLAUGHTER.
The Second Count of indictment number 98-01034 charges that the defendant did unlawfully, and with the intent to commit robbery, kill RICCI LYNN ELLSWORTH during the perpetration of ROBBERY.
Indictment number 98-01033 charges the defendant with the offense of AGGRAVATED ROBBERY. This offense embraces and includes the lesser offenses of ROBBERY and THEFT OF PROPERTY OVER $500.
Indictment number 97-02819 is in two (2) counts. Both counts charge the defendant with the offense of THEFT OF PROPERTY.
These three indictments have been consolidated for trial at one time, but it must be remembered at all times that even though the indictments are being tried together, they are separate and distinct cases and must be treated by the Jury as such.
You may convict the defendant on all indictments, or acquit him on all indictments; or convict on one and acquit on the others. If you find from the evidence, beyond a reasonable doubt, the defendant guilty [sic] of each indictment, you should convict on each. If you find from the evidence, beyond a reasonable doubt, one indictment guilty [sic] and have a reasonable doubt as to the guilt of the other indictments, you should convict on the one you are satisfied beyond a reasonable doubt of, and acquit on all the others. If you have a reasonable doubt as to the guilt on all, you should acquit on all.
As to the Theft indictment only, 97-02817, you may convict the defendant on both counts; or convict on one and acquit on the other. If you find from the evidence, beyond a reasonable doubt, the defendant of both counts guilty [sic], you should convict on both. If you find from the evidence, beyond a reasonable doubt, one count guilty [sic], and have a reasonable doubt as to the guilt of the other count, you should convict on the one you are satisfied beyond a reasonable doubt as to the guilt of, and acquit on the other. If you have a reasonable doubt as to the guilt on both, you should acquit on both.
When you retire to consider your verdict in indictment number 98-01034, you will first inquire, is the defendant guilty of Murder in the First Degree as charged in the First Count of the indictment? If you find the defendant guilty of this offense, beyond a reasonable doubt, your verdict should be,
"We the Jury, find the defendant guilty of Murder in the First Degree as charged in the First Count of the Indictment."
If you find the defendant not guilty of this offense, or if you have a reasonable doubt of his guilt of this offense, you will acquit him thereof and then proceed to inquire whether or not he is guilty of Murder in the First Degree During the Perpetration of a Robbery as charged in the Second Count of the indictment.
If you find, beyond a reasonable doubt, that the defendant is guilty of this offense, your verdict should be,
"We the Jury, find the defendant guilty of Murder in the First Degree During the Perpetration of a Robbery as charged in the Second Count of the indictment."
If you find the defendant not guilty of this offense, or if you have a reasonable doubt of his guilt of this offense, you will acquit him thereof and then proceed to inquire whether or not he is guilty of Murder in the Second Degree as included in the First Count of the Indictment.
If you find, beyond a reasonable doubt, that the defendant is guilty of this offense, your verdict should be,
"We, the Jury, find the defendant guilty of Murder in the Second Degree as included in the First Count of the Indictment."
If you find the defendant not guilty of this offense, or if you have a reasonable doubt of his guilt of this offense, you will acquit him thereof and then proceed to inquire whether or not he is guilty of Voluntary Manslaughter as included in the First Count of the indictment.
If you find, beyond a reasonable doubt, that the defendant is guilty of this offense, your verdict should be,
"We, the Jury, find the defendant guilty of Voluntary Manslaughter as included in the First Count of the Indictment."
If you do find the defendant guilty, you can convict him of only one of the above named offenses charged and included in this indictment . . . .
Next, the trial court instructed the jury as to the single count of aggravated robbery charged in indictment 98-01034 and as to the two counts of theft charged in indictment 97-02817.

         The jury convicted the Defendant of first degree premeditated murder and returned the verdict for Count 1 without returning a verdict for felony murder in Count 2, as instructed by the court. The jury also returned guilty verdicts for aggravated robbery and theft. See State v. Michael Dale Rimmer, No. W2004-02240-CCA-R3-DD, 2006 WL 3731206, slip op. at 1 (Tenn. Crim. App. Dec. 15, 2006), aff'd, 205 S.W.3d 12.

         This type of jury instruction, in which the jury is told to consider a lesser included offense only when it acquits of the greater offense, has been referred to as a "sequential" or "acquittal first" instruction. See Harris v. State, 947 S.W.2d 156, 175-76 (Tenn. Crim. App. 1996). Our supreme court has upheld the validity of such instructions, while also cautioning that their use could potentially give rise to a double jeopardy problem. State v. Howard, 30 S.W.3d 271, 274 n.4 (Tenn. 2000) ("While it was not error for the trial court to deliver sequential jury instructions, we have previously urged trial courts to allow juries to consider all theories of first-degree murder.") (internal citations omitted). Despite this potential problem, both this court and the supreme court have allowed new trials of charges for which no verdicts were reached and in which sequential instructions were given. See State v. Madkins, 989 S.W.2d 697, 699 (Tenn. 1999); State v. Burns, 979 S.W.2d 276, 291 (Tenn. 1998); State v. John E. Parnell, No. W1999-00562-CCA-R3-CD, 2001 WL 124526, at *6 (Tenn. Crim. App. Feb. 6, 2001); State v. David William Smith, No. 03C01-9809-CR-00344, 2000 WL 210378, at *6 (Tenn. Crim. App. Feb. 24, 2000).

         This court previously ordered a new trial under circumstances almost identical to those in this case. In State v. Antonio Saulsberry, the defendant was indicted for one count of premeditated murder, two counts of felony murder, and one count each of especially aggravated robbery and conspiracy to commit a felony. No. 2005-00316-CCA-R9-CD, 2006 WL 2596771, at *2 (Tenn. Crim. App. Sept. 11, 2006), perm. app. denied (Tenn. Jan. 29, 2007). He was convicted of first degree premeditated murder, especially aggravated robbery, and conspiracy to commit aggravated robbery. His conviction for premeditated murder was reversed on appeal, and his remaining convictions were affirmed. Thereafter, the State sought a new trial on the two counts of felony murder. The defendant filed a motion to dismiss the indictment, arguing that the new trial violated principles of double jeopardy. Id. at *1-3. This court concluded that double jeopardy principles did not preclude a subsequent trial of the felony murder charges. Id. at *5. The court noted that the sequential jury instructions, as provided in this case, led to a presumption that the jury never considered the felony murder charges after reaching a guilty verdict on premeditated murder. Id.

         The jury at the Defendant's first trial was instructed to consider the felony murder charge only if it returned a not guilty verdict for premeditated murder. A jury is presumed to follow the trial court's instructions. Nesbit v. State, 452 S.W.3d 779, 799 (Tenn. 2014). We conclude that in this case the lack of a jury verdict on the felony murder count at the first trial was not an implicit acquittal and that double jeopardy principles were not violated at the second trial. The Defendant is not entitled to relief on this basis.

         III. Motion to Suppress DNA Evidence

         The Defendant contends that the trial court erred in denying his motion to suppress DNA evidence. He asserts that the State destroyed the maroon Honda without affording the defense an opportunity to inspect it. The State avers that consideration of this issue is barred by the doctrine of collateral estoppel because it was previously determined by the post-conviction court. Alternatively, the State asserts that the issue is without merit because it was not obligated to preserve an entire automobile indefinitely when the State had documented the car and its contents and preserved evidence obtained from it.

         A. Collateral Estoppel

         In his petition for post-conviction relief, the Defendant contended that the State's failure to preserve the Honda for inspection by the defense violated his right to due process under the law. The post-conviction court rejected this argument, concluding that the State did not have a duty to preserve the car.

         The doctrine of collateral estoppel has been applied infrequently in criminal cases. See State v. David Scarbrough, No. E2003-02850-CCA-R9-CD, 2004 WL 2280423, at *8 (Tenn. Crim. App. Oct. 11, 2004) (noting that, at the time, no Tennessee appellate court had considered the issue of offensive collateral estoppel in criminal cases). Our supreme court has acknowledged that the doctrine's application may be appropriate in some criminal cases. See State v. Flake, 114 S.W.3d 487, 507 (Tenn. 2003) (choosing to address a suppression issue on the merits even though the State argued collateral estoppel applied because a court had previously rejected the issue in a petition to rehear). We address this issue on the merits and decline to apply the doctrine of collateral estoppel.

         B. Due ...


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