Court of Criminal Appeals of Tennessee, Knoxville
January 23, 2019 Session
from the Criminal Court for Washington County No. 41243 Lisa
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. Following our review, we affirm the
judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
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.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE.
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. 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.
Tennessee Rule of Evidence 404(b) Hearing
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.
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
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.
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
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.
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."
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.
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.
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.
Admissibility of Video Recording Hearing
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.
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.
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."
Witness Testimony by Closed Circuit Television
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.
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
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.
Holloway testified that J.S. would withdraw when she tried to
talk to him about the incident. Ms. Holloway explained as
[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.
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
Ms. Holloway was asked how J.S. would react to having to
testify in the courtroom with the Defendant, she opined as
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
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.
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.
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.
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."
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.
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
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.
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.
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.
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 ...