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State v. Meza Olivera

Court of Criminal Appeals of Tennessee, Knoxville

July 26, 2019

STATE OF TENNESSEE
v.
LUIS A. MEZA OLIVERA

          January 23, 2019 Session

          Appeal from the Criminal Court for Washington County No. 41243 Lisa Rice, Judge

         The Defendant, Luis A. Meza Olivera, was convicted by a jury of two counts of aggravated assault, a Class C felony; and three counts of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. §§ 39-13-102, -304. The trial court merged the convictions into one count of aggravated assault and one count of aggravated kidnapping. The trial court then imposed a total effective sentence of twelve years. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred in admitting evidence of three prior incidents of domestic violence involving the Defendant and the victim; (3) the trial court erred in allowing a child witness to testify by closed circuit television; (4) the trial court erred in excluding a video recording taken after the offenses were committed; (5) the trial court abused its discretion by imposing the maximum sentence for each conviction; and (6) a new trial is warranted due to cumulative error.[1] 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

          Lawrence Scott Shults, Johnson City, Tennessee (on appeal); Donna M. Bolton, Johnson City, Tennessee (at Rule 404(b) hearing); and Jeffery C. Kelly, District Public Defender, and William Carter Donaldson, Assistant District Public Defender (at trial), for the appellant, Luis A. Meza Olivera.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Erin D. McArdle and Justin Bradford Irick, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         FACTUAL BACKGROUND

         On the afternoon of December 27, 2015, deputies from the Washington County Sheriff's Office found the victim, Sherri Swartz, locked in her bedroom, "hogtied," and with a rope tied around her neck. The deputies were dispatched to the victim's home after her five-year-old son, J.S., called 911 and stated that he was locked in the victim's bedroom closet.[2] The victim had no memory of what had happened. Nonetheless, the Defendant was quickly identified as a suspect and arrested in Memphis on December 30, 2015.

         I. Tennessee Rule of Evidence 404(b) Hearing

         The State filed a pretrial "Notice of Intent to Use Prior Bad Acts." The State sought to admit evidence of five prior instances of domestic violence involving the Defendant and the victim under Tennessee Rule of Evidence 404(b). The State argued that the instances of domestic violence were "relevant to prove motive[, ]intent to harm[, ] and lack of mistake." The trial court then held an evidentiary hearing on the State's request.[3]

         The victim testified that she met the Defendant while she was living in California. The victim described their relationship as "rocky" and stated that the Defendant "had a temper and a drinking issue." The victim explained that "there were . . . times [when the Defendant] would get a little pushy, shovey, [and] things like that." In 2009, the victim became pregnant with J.S. After finding out that she was pregnant, the victim and the Defendant got married.

         The victim testified that, while she was pregnant, the Defendant pushed her "down [on to] the corner of the bed" and that she went to the emergency room because she started bleeding vaginally. The victim told the staff at the emergency room that she had fallen and did not report the Defendant. The victim testified that another incident occurred while she was pregnant. The victim explained that the Defendant hit her. Later that day, the victim went to a scheduled doctor's appointment with a black eye. The victim's doctor contacted the police, but the victim told them that it was an accident.

         J.S. was born in 2010. The victim testified that in May 2010, the Defendant went into a "rage" when he could not find something in their bedroom. The Defendant began hitting the victim on her head and back with a remote control. The victim testified that she was holding J.S. while the Defendant hit her and that she attempted to shield J.S. from the Defendant's blows. Later in the day, the victim went to a scheduled doctor's appointment. The victim's doctor called the police, and she reported what the Defendant had done. The State introduced photographs of the victim's black eyes, other bruises, and red marks on her back and arm. The Defendant eventually pled guilty to "disturbing the peace," and the State introduced documentation of his conviction.

         Another incident occurred in November 2010. The victim testified that the Defendant took a laptop from her and "slide it across the floor." When the victim went to pick it up, the Defendant started yelling at the victim and pushing her. The victim and the Defendant "kind of [got] in a tussle" over J.S. The victim took J.S. to her car. The Defendant tried to prevent the victim from getting in her car, tried to take J.S. from her, and shut the car door on the victim. The victim eventually was able to drive away and reported the incident to the police. The State introduced photographs of bruises on the victim's face and arm, scratches to her arm, and a busted lip. The victim testified that J.S. suffered a bruise to his eye. The Defendant later pled guilty to "domestic violence," and the State introduced documentation of his conviction.

         The final incident occurred in March 2011. The victim testified that she and J.S. had moved to Washington County. The Defendant had driven the victim and J.S. from California and was staying with them for a few days before driving back. The victim testified that they were staying at a "farmhouse" owned by her family. The victim and the Defendant were cleaning out the farmhouse. The victim and the Defendant started arguing after the Defendant began burning trash too close to the house. The victim testified that the Defendant was "very agitated" and that "it was getting really, really tense."

         The victim testified that she went to the bathroom to get away from the Defendant. After a few minutes, the victim smelled smoke. The victim was unable to open the bathroom door. The victim was eventually able to call her mother who called 911. When firefighters arrived at the farmhouse, they found a rug on fire in front of the bathroom door and the head of an axe wedged underneath the bathroom door to prevent it from opening. The Defendant later pled guilty to assault and attempted arson. The State introduced photographs of the rug and axe along with documentation of the Defendant's convictions. The victim testified that she and the Defendant divorced after this incident.

         Sergeant John Light of the Washington County Sheriff's Office testified that he responded to the incident in March 2011. Sergeant Light recalled that the farmhouse smelled of gasoline and that the victim was "panicking." Sergeant Light corroborated the victim's testimony that the firefighters found a rug burning in front of the bathroom door and an axe head wedged underneath the door that prevented it from opening.

         The trial court issued a lengthy written order addressing the State's request. The trial court found that the first two incidents that occurred when the victim was pregnant had not been established by clear and convincing evidence. However, the trial court found that the May 2010, the November 2010, and the March 2011 incidents had been established by clear and convincing evidence. The trial court also found that "identity, motive, common scheme or plan[, ] and intent [were] material issues present in this case." The trial court further found that the three prior incidents of domestic violence were "probative of the [D]efendant's hostility toward the victim, malice, or a settled purpose to harm her." Specifically, the trial court stated that the evidence was "highly probative of the settled intent of the Defendant to harm the victim." The trial court concluded that the probative value of the evidence outweighed the danger of unfair prejudice.

         II. Admissibility of Video Recording Hearing

         On August 3, 2016, the State filed a "Demand for Notice of Alibi." On September 22, 2016, the trial court issued a written order giving the Defendant until October 6, 2016, to provide a notice of alibi if he intended to raise an alibi defense at trial. No notice of alibi was filed.

         On November 9, 2016, one week before the Defendant's trial was originally scheduled to begin, the trial court granted the Defendant's motion to allow his original counsel to withdraw. The Public Defender's Office was appointed to represent the Defendant. Defense counsel filed a motion to be relieved of the notice of alibi requirement on February 8, 2017. The trial court held a hearing on the motion on February 13, 2017.

         At the hearing, defense counsel stated that he wanted to explore if an alibi defense was possible. Defense counsel mentioned that the investigator for the Defendant's original counsel had "a video where [the Defendant] [was] in a department store at a particular time," but that he had not seen the video recording. The prosecutor responded that original counsel had told her about the video recording, that she had asked original counsel to provide her with it, and that original counsel had never provided her with it. The trial court ruled that the video recording would not be admissible at trial because "it should have been turned over to the [S]tate if it was going to be used a long time ago."

         III. Witness Testimony by Closed Circuit Television Hearing

         Shortly before trial, the State filed a motion to allow J.S. to testify by closed circuit television as allowed under Tennessee Code Annotated section 24-7-120. The State argued that J.S. would be traumatized by being in the presence of the Defendant to such an extent that he would not be able to reasonably communicate. The trial court then held an evidentiary hearing on the State's motion.

         Paula Holloway testified that she was a therapist at the Children's Advocacy Center and that she had treated J.S. Ms. Holloway estimated that she had seen J.S. fifteen times during his treatment. Ms. Holloway testified that J.S. did not "have the social skills or interaction that [one] would typically see in a child his age," that he had trouble with "emotional regulation," and that he was "very hypersensitive to noises." Ms. Holloway continued, stating that J.S. had "some ticks and repetitive movements that [he would] do, and the more anxious he [became], the more pronounced those" would be. Ms. Holloway testified that J.S. had no siblings, that he lived alone with his mother and grandmother, and that he was home-schooled.

         At their first session, Ms. Holloway asked J.S. to describe what had happened. Ms. Holloway recalled that J.S. was "very kind of shut down, very timid, [and] very quiet as he talked about the incidents that happened." J.S. later told Ms. Holloway that "he could hear the noises" as the Defendant attacked the victim and that "it was very scary for him." J.S. continued "to struggle with fear and anxiety" because of the attack. J.S. also "really struggled with separation even to be able to go into the bathroom and brush his teeth at night or [to] be able to sleep independently." Ms. Holloway explained that J.S. was afraid that the Defendant would "come and take him away" or hurt the victim.

         Ms. Holloway testified that J.S. would withdraw when she tried to talk to him about the incident. Ms. Holloway explained as follows:

[Y]ou can physically watch [J.S.], he'll pull down into a fetal position and he'll hide his face. He can't talk about things. Typically, he has to have something in front of him or he has to be physically moving to be able to verbalize any of this. So he either gets very, very hyper kinetic and running around and trying to touch everything or he'll hide on the couch and put his head down and cover his head with the pillow, or he'll actually physically have to hold my hands to be able to talk about the stressful things.

         Ms. Holloway testified that she talked to J.S. about the possibility of his testifying in court and that J.S. "really struggled." Ms. Holloway explained that J.S. "was very scared, very withdrawn," and was afraid that the Defendant would "get out of jail and be able to come." J.S. had not seen the Defendant since his arrest. Ms. Holloway did not "specifically" tell J.S. that the Defendant would be in the courtroom when he testified, but J.S. had told her "on more than one occasion" that he did not "want to see" the Defendant. J.S. told Ms. Holloway that he wanted the Defendant "to stay in jail so that . . . [he could] be safe."

         When Ms. Holloway was asked how J.S. would react to having to testify in the courtroom with the Defendant, she opined as follows:

Drawing from watching [J.S.] and just discussing coming face to face with . . . [the Defendant], I think [it] would be very distressing for him. I think he's very afraid of seeing . . . [the Defendant], afraid of what the outcome of that would be and just in talking about it, he really struggles to be able to feel safe and to be able to manage his anxiety.

         Ms. Holloway concluded that J.S. "would probably become very, very anxious and shut down" if he were forced to testify in front of the Defendant.

         The victim testified that since the attack, J.S. had trouble eating, was bothered by loud sounds, and said he was afraid of the Defendant's getting out of jail and "com[ing] to get him." J.S. told the victim that he did not want to testify at trial because he did not want to see the Defendant and was afraid that the Defendant would take him. The victim believed that J.S. would be terrified of seeing the Defendant. The victim worried that J.S. would not be able to testify in front of the Defendant or that J.S. would "say anything" to keep from angering the Defendant.

         The trial court granted the State's motion to allow J.S. to testify by closed circuit television. The trial court accredited Ms. Holloway's testimony that J.S. would "shut down" when scared or anxious and that J.S. "still exhibit[ed] fear and anxiety" of the Defendant. The trial court also accredited the victim's testimony that J.S. was afraid to testify. The trial court found that J.S. was "traumatized and would be traumatized in a courtroom setting" with the Defendant present. The trial court further found that the emotional distress to J.S. would be "substantial" and that J.S. "would likely not be able to testify" with the Defendant in the courtroom.

         IV. Trial

         At 5:39 p.m. on December 27, 2015, J.S. called 911. J.S. was five years old. J.S. told the 911 operator that he was "locked" in the victim's closet and could not get out. J.S. explained that the victim told him to go to his "safe spot." J.S. told the 911 operator that the Defendant wanted to take him to California and never bring him back. J.S. also told the 911 operator that the Defendant was "still outside." The 911 operator testified that J.S. "seemed upset," was "pretty nervous," and was "scared." The 911 operator recalled that there were "[a] couple of times it sounded like [J.S.] started to kind of break down."

         Deputies Taylor Hayes, Walter Hurd, and William Laws of the Washington County Sheriff's Office were dispatched to the victim's home. Deputy Hayes was the first to arrive at the victim's home. Deputy Hayes did not see anyone outside the home and no one responded when he knocked on the front door. Deputy Hayes knocked on the front door again when Deputy Hurd arrived. This time the deputies noticed what appeared to be a smear of blood on the siding by the door knob. The front door was locked and they were given permission by their superiors to kick it in.

         Once inside the home, the deputies began to search the house. Deputy Hurd noticed a blue "surgical" glove with what appeared to be blood on it by the front door. A second glove was found on the kitchen floor with a spot of what appeared to be blood on it. In front of the victim's bedroom door, the deputies found a closet door, the same height as the bedroom door but half as wide, propped up against the bedroom door just beneath the door knob. A rope came over the top of the bedroom door and was tied "in a figure-eight pattern" around the door knob of the closet door. The end of the rope was tied to a water meter key, a large t-shaped metal tool. The rope was "[v]ery tight." There was mud on the carpet in front of the bedroom door. The deputies also saw splinters on the floor of the hallway from where the closet door had been ripped off the wall.

         The bedroom door was locked. The deputies knocked on the door and "heard a moan . . . from the other side." Deputy Hurd moved the closet door a short distance so they could kick in the bedroom door. Deputy Hurd testified that he could not move the closet door very far because the rope was so tense. The deputies kicked in the bedroom door, but it only opened a few inches. They then pushed the door until it opened enough for one of them to get inside the bedroom. The deputies found the victim face down on her stomach "right behind" the bedroom door with "[t]he rope that had been coming over the [bedroom] door . . . actually tied around her neck." The rope was "tied like a slipknot-style knot" around the victim's neck and was tight. The victim was bound with zip ties around her ankles and wrists that were bound together with more zip ties in "a hogtie style." The victim was bound so tightly that her hands and feet almost touched.

         The victim was lying face down and not hanging when the deputies found her. However, Deputy Hurd believed that the rope loosened when he moved the closet door and that there was a "[g]ood probability" that the victim had been hanging by the rope prior to that. Deputy Hayes cut the rope with a pocket knife. The victim began "yelling and moaning and asking where her child was." The victim was "very confused" and frightened. The victim thought she had been in a car accident and that J.S. was trapped in the backseat. Deputy Hayes attempted to cut the zip ties off of the victim's ankles and wrists, but some were on too tight for him to cut with a knife. Deputy Hurd found a nightstand in front of the bedroom closet door. He moved the night stand and found J.S. in the closet. Deputy Hurd gave J.S. to Deputy Laws who took J.S. outside. Outside, J.S. told Deputy Laws that the Defendant had come to get him, that he saw the Defendant on a camera, and that the victim told him to go to the bedroom closet.

         The deputies found a kitchen knife on the bedroom floor near the victim. There was more mud on the bedroom floor. The victim's broken glasses were found on top of a filing cabinet near the bedroom door. The deputies also found a piece of the victim's scalp and a clump of her hair hanging from the corner of the top drawer. The top drawer of a second nightstand by the bed had been removed and the contents of the drawer had been gone through. The deputies found what appeared to be a blood smear on the back of the bedroom door. What appeared to be a second blood smear was found on the wall above where the victim's head had been. In the same area, "luis" had been written in what appeared to be blood. Later forensic testing revealed that the kitchen knife found in the victim's bedroom and the "surgical" gloves found in the house had the victim's blood on them.

         Paramedics arrived to treat the victim. The victim was bleeding a "small amount" from a laceration on the back of her head. One of the zip ties was tied so tightly around the victim's wrist that the paramedic had to use a special "ring cutter" to remove it. The victim "looked like she'd been assaulted." The victim had a cut on the back of her head and a knot on her head. The victim had "abrasions around her wrists and ankles." There were also "some abrasions . . . and bruising around her neck." The victim had bruising and swelling on one of her ears and bruising around her left eye and temple. The victim also had bruising on her arms and back. The victim complained of pain to her neck, shoulders, back, and wrists. The victim was not oriented to time and could not remember anything that had happened that day or the day before. The victim was taken to an emergency room where she was ...


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