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State v. Cathey

Court of Criminal Appeals of Tennessee, Jackson

August 9, 2019

STATE OF TENNESSEE
v.
DUSTIN MICHAEL CATHEY

          Assigned on Briefs April 2, 2019

          Appeal from the Circuit Court for Crockett County No. 4258 Clayburn Peeples, Judge

         The Defendant, Dustin Michael Cathey, was convicted by a Crockett County Circuit Court jury of first degree felony murder and second degree murder. The second degree murder conviction merged into the conviction for felony murder, and the trial court imposed a life sentence. On appeal, the Defendant argues that the trial court erred in including language regarding criminal responsibility for the conduct of another in its jury charge, and he also argues that the evidence is insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.

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

          Michael R. Working and Jennifer Dilley, Memphis, Tennessee, for the appellant, Dustin Michael Cathey.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler Parham and Jason Scott, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams, P.J., and Timothy L. Easter, J., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The Defendant was indicted for first degree premeditated murder and first degree felony murder in the death of the eighty-nine-year-old victim, Frances Lilley. The State requested that the Defendant's trial be joined with the trial of Daniel Parker. The trial court found that the Defendant and Mr. Parker could have been jointly indicted, but the court denied the motion after finding that the Defendant had shown clear prejudice from a joint trial. The Defendant's case proceeded to trial.

         State's Proof

         Through the testimony of John Cole, telecom operations manager for TEC, the State introduced records from the victim's telephone, which included calls that were dialed, received, and misdialed during the time surrounding the murder. Robert Howell, keeper of records for Crockett County 911, authenticated the 911 call made by Alymer Lilley, the victim's husband, reporting the murder, and it was played for the jury. Mr. Howell believed that the call came in about two minutes before midnight on August 4, 2011.

         Bobby Vaughn, the victim's brother, testified that Mr. Lilley was alive at the time of the victim's murder but had since passed away. Mr. Lilley suffered from dementia and the victim took care of him. His dementia often caused him to have some confusion. They lived on farmland in the country.

         Jim Knox, Chief of Police for the city of Alamo, testified that he responded to the 911 call to the victim's house, possibly sometime after 11:00 p.m. He recalled that there were a number of fields around the victim's home, and the area was "pretty dark" at night. Upon entering the home, the police found Mr. Lilley sitting in a chair, and the deceased victim was lying on the floor. The victim's body was cool to the touch. Chief Knox left the scene five or ten minutes later when the ambulance personnel and coroner arrived. Chief Knox said that Deputy Parks also responded to the scene, but he had suffered a stroke since the murder and was therefore unable to testify at trial.

         Dr. Marco Ross, the Deputy Chief Medical Examiner for the West Tennessee Regional Forensic Center, performed the autopsy on the victim. The victim suffered from two gunshot wounds, one in her neck and one in her right shoulder. The gunshot to the victim's neck was the fatal wound. She also sustained rib fractures, which Dr. Ross surmised may have been caused by the gunshot or by falling after being shot. A bullet was recovered from the victim's upper back. Dr. Ross said that it appeared the victim had been shot from a distance, but he could not tell from how far. He could only surmise from the lack of gunpowder on her body that she was shot from a distance greater than 3 or 4 feet.

         Tennessee Bureau of Investigation ("TBI") Agent Phillip Cicero led a team of investigators in the victim's murder investigation. Agent Cicero and his team arrived at the crime scene around 9:00 a.m. the morning after the murder. There was a large cotton field to the right of the house, and it was surrounded by a lot of farmland. The victim's body was found between the kitchen and family room inside the home. It appeared that a shot had been fired through a sliding glass door into the house, killing the victim.

         Agent Cicero recalled that there was a deep freezer in the carport, which the TBI dusted for fingerprints and swabbed for DNA. A jar of frozen jam was found sitting on top of the air conditioning unit behind the house. The circumstances indicated that the jam had been taken from the deep freezer. A cigarette butt was collected from the road in front of the house.

         Sheriff Troy Klyce with the Crockett County Sheriff's Department responded to the crime scene shortly after midnight on August 5, 2011. The victim had been shot multiple times, and her husband was present but disoriented with dementia-like symptoms. Sheriff Klyce called the TBI to investigate the scene.

         Through the course of his investigation, Sheriff Klyce learned that Mr. Lilley had attempted to call Darrell Manning, who lived nearby and helped the Lilleys with their land. Sheriff Klyce made a recording of a message that Mr. Lilley left on Mr. Manning's answering machine. Mr. Lilley was the one who initiated contact with law enforcement, but it was not clear how long it took him to dial 911 successfully. Sheriff Klyce surmised that the victim was murdered after dark because a flashlight was found on the floor near her body.

         Sheriff Klyce testified that two weeks after the murder, police executed a search warrant of the Defendant's home in which they found a box of .22-caliber cartridges. That same day, police visited Roger Mosier's residence in Alamo looking for Daniel Parker, who had failed to appear in court on another matter. Mr. Parker was also a suspect in the victim's murder. Mr. Mosier and Trina Parker, Mr. Parker's mother, were there. Ms. Parker, who was "frantic and really nervous," told Sheriff Klyce that she had "the gun." Ms. Parker took the police to her home and gave them the gun. Officers located Mr. Parker later that night at the home of Dustin Ellis. The next day, Mr. Parker accompanied officers to his home and turned over the manufacturer's box that originally came with the gun that was recovered from Ms. Parker. Mr. Parker advised officers that he took the shells out of the gun, but the police never located the shells.

         Sheriff Klyce said that several people were suspects during the course of the investigation, including Brittany Bushart; Dustin Ellis, because he was in possession of the murder weapon at some point in time; the Defendant; and Daniel Parker, who was eventually charged with the crime like the Defendant. Sheriff Klyce stated that, to his knowledge, the Defendant, Mr. Parker, and Mr. Ellis were all friends during the time period at issue in 2011.

         Detective Penny Curtis worked for the Crockett County Sheriff's Department at the time of the incident. Detective Curtis responded to the scene during the early morning hours of August 5, 2011. She observed two jars of strawberry jam sitting on an air conditioning unit behind the house. The jars were frosted over, leading investigators to believe they had been sitting out for a while.

         Detective Curtis testified that in addition to the box of .22-caliber cartridges found in the Defendant's bedroom when they executed a search warrant, officers found a plastic cup with a red sticky substance and more of the same sticky substance on the floor. Detective Curtis searched the Defendant's vehicle and found a camouflage bag containing a hammer and assorted tools, gloves, and a full-face camouflage mask. Detective Curtis recalled encountering Daniel Parker's mother later that day, similarly to Sheriff Klyce. She remembered that Ms. Parker said to them, "My son did not kill the old lady."

         Detective Curtis testified that, with regard to the gun officers recovered from Ms. Parker, Mr. Parker told them that he had bought it from Dustin Ellis and then sold it to his mother. She recalled that Mr. Parker informed the officers that there were two spent shells stuck inside the gun when he bought it that he had to pry out using a knife. The police never located the shells. Detective Curtis stated that she spoke with Debra Wright, who lived in the vicinity of the victim but not necessarily within walking distance. Ms. Wright advised that Mr. Parker came to her house on August 4th and again on the morning of the 5th. Detective Curtis also spoke with Homer Joe Young, who likewise lived in the vicinity of the victim, and Mr. Young advised that he saw Mr. Parker walking around the Chestnut Bluff-Broadview intersection at 5:30 p.m. on the day of the shooting.

         TBI Agent Cathy Ferguson assisted Crockett County law enforcement with the investigation of the case. Upon her arrival on the scene, Agent Ferguson learned that a family member had spoken to the victim on the telephone sometime between 8:00-8:30 p.m. Agent Ferguson subpoenaed phone records for the victim's home telephone in order to establish a time frame because the victim's husband knew that he had called 911 but did not know what time due to his dementia. Approximately 27 calls were made between 10:26 p.m., when the victim's husband attempted to call a neighbor, Darrell Manning, and 11:58 p.m., when he successfully contacted 911.

         Agent Ferguson testified that she walked through the house to document evidence, take photographs, and determine the scope of the crime scene. Two jars of freezer jam were sitting on the air conditioning unit behind the house. The jars were "frosty" and appeared to have been recently removed from a freezer. Agent Ferguson packaged the jars in a way to preserve fingerprint evidence, and they were placed into a temperature controlled TBI crime scene truck. However, the jars spilled en route to Nashville, destroying any potential fingerprints or DNA that might have been on the jars. Among other evidence at the scene, Agent Ferguson noted that a broken flashlight was found on the floor near the victim's body, and the victim's purse containing $800 in cash was on a chair pushed under the dining room table.

         Agent Ferguson testified that she, as well as Sheriff Klyce and Detective Curtis, went to Roger Mosier's house to look for Mr. Parker and while there, Mr. Parker's mother told them that she "ha[d] the gun." Ms. Parker took the police to her home and gave them the combination to the safe in which they found a gun. Agent Ferguson said that it was her responsibility to follow up on collected evidence and determine evidentiary value to the investigation. She determined that none of the evidence she collected, such as a shoe print and a cigarette butt, had evidentiary value. She ...


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