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State v. Lindsey

Court of Criminal Appeals of Tennessee, Knoxville

August 16, 2019

STATE OF TENNESSEE
v.
DEDRICK LAMONT LINDSEY

          Session May 29, 2019

          Appeal from the Criminal Court for Hamilton County No. 291139, 292276, 272531 Don W. Poole, Judge

         Defendant, Dedrick Lamont Lindsey, appeals the trial court's order revoking his probation and imposing his sentence. Defendant argues: (1) that the State failed to present "any substantial evidence" to support the trial court's finding that Defendant violated his probation; (2) that the trial court erroneously admitted a witness's recorded statement to police; and (3) that he received ineffective assistance of counsel at the probation revocation hearing. Following a thorough review, we affirm the judgment of the trial court.

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

          Daniel J. Ripper and Calli Kovalic (on appeal), Chattanooga, Tennessee; and Robin Flores and Brandon Raulston (at hearing), Chattanooga, Tennessee, for the appellant, Dedrick Lamont Lindsey.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Neal Pinkston, District Attorney General; and Cameron Williams and Crystle Carrion, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Factual and Procedural Background

         On November 19, 2009, Defendant pled guilty to possession of cocaine for resale, possession of a controlled substance for resale, tampering with evidence, possession of drug paraphernalia, and assault in case number 270295, for which the trial court imposed an effective five-year sentence that was suspended to supervised probation following the service of eleven months and twenty-nine days in jail.[1] Additionally, Defendant pled guilty to aggravated assault in case number 272531. Pursuant to a plea agreement, the trial court sentenced Defendant to four years suspended to supervised probation after the service of eleven months and twenty-nine days in jail. The trial court ordered the sentence in case number 272531 to run consecutively to Defendant's five-year sentence in case number 270295.

         On February 15, 2011, the trial court issued a probation violation warrant in case number 272531, alleging that Defendant violated his probation by being arrested on new charges, testing positive for marijuana, and failing to pay fees, court costs, and fines. On March 18, 2013, the trial court entered an order in case number 272531, revoking Defendant's probation to time served and returning Defendant to probation.

         On December 9, 2013, the trial court issued a probation violation warrant in case number 270295 and 272531, alleging that Defendant tested positive on a drug screen, failed to report to probation, was arrested on new charges, was unemployed, and failed to pay court costs, fines, and fees.

         On March 19, 2014, the Hamilton County Grand Jury indicted Defendant on charges of resisting arrest, possession of drug paraphernalia, possession of a controlled substance, possession of marijuana for resale, possession of cocaine for resale, and tampering with evidence, in case number 291139. On March 27, 2014, the State probation office filed an amended probation violation report in case number 272531, alleging that Defendant had been arrested on multiple new charges.

         Thereafter, on July 23, 2014, the Hamilton County Grand Jury indicted Defendant for possession of cocaine for resale, possession of marijuana for resale, possession of alprazolam for resale, aggravated assault, possession of drug paraphernalia, and resisting arrest, in case number 292276. On December 4, 2014, the trial court revoked Defendant's probation in case number 272531 and ordered Defendant to serve eleven months and twenty-nine days in jail before returning to probation. The following day, Defendant pled guilty to attempted possession of cocaine for resale in case number 291139 and received a sentence of six years suspended to supervised probation after the service of eleven months and twenty-nine days in jail. The trial court ordered the six-year sentence to run consecutively to the sentence in case number 272531. Defendant additionally pled guilty to attempted possession of cocaine for resale, possession of alprazolam for resale, and aggravated assault in case number 292276. The trial court sentenced Defendant to a total effective sentence of six years suspended to supervised probation; the trial court ordered the sentence to run consecutively to the sentence in case number 291139.

         On April 25, 2017, the trial court issued a probation violation warrant in case numbers 272531, 270295, 291139, and 292276, alleging that Defendant had been arrested on new charges, had no valid address, and had absconded from supervision. At the time of the violation warrant, Defendant had a total effective sentence of sixteen years' probation, as follows:

Case Number

Date of Conviction

Effective Sentence

Concurrent/Consecutive

270295

11/19/09

5 years

272531

11/19/09

4 years

Consecutive to 270295

291139

12/5/14

6 years

Consecutive to 272531

292276

12/5/14

6 years

Consecutive to 291139

         State's Proof

         At the beginning of Defendant's probation revocation hearing, trial counsel asserted that the State had failed to provide him with color photographs from a photographic line-up shown to witness Regina Orr. When the prosecutor stated that discovery was provided in January 2018, trial counsel explained that he was provided with "dark copies" of the photographs. He stated, "I get copies of copies of what's in the discovery." The following exchange then occurred:

THE COURT: Did you get color copies or not?
[TRIAL COUNSEL]: I did not get color copies.
[PROSECUTOR] WILLIAMS: There was a link provided to [trial counsel] back in January of 2018 that had all of the evidence in the master case file.
[TRIAL COUNSEL]: Your Honor, . . . this link that the State is starting to use now, it doesn't open up well. It goes to a redirected page, you can't get to it.

         The trial court instructed the State to provide to trial counsel "today whatever he doesn't have then on the link."

         Following a recess, trial counsel made the following announcement:

[TRIAL COUNSEL]: Judge, I just wanted to correct a representation on the record. The State and I [went] back and forth about discovery. They were saying January 18th, I looked at that. By way of explanation there has been some issues with email and our office . . . but still in all, on 1/18 they did send an email . . . . I did a search and it went into spam. The odd part about it is that I answered that, looks like I answered it thank you from my iPhone, so I did want to correct that that the State did send that material.
THE COURT: You were concerned about the colored photos?
[TRIAL COUNSEL]: Yes, Your Honor.
THE COURT: I am glad both of you brought that up. That's fine.

         Regina Orr testified that, on the evening of March 24, 2017, she was sitting in the passenger side of her car, which was parked on Rawlings Street. Her cousin, Jermichael Wright, was sitting in the driver's seat. Ms. Orr explained that Mr. Wright "jumped out" of the car and began arguing with "Dinky," whom she identified as Defendant. Ms. Orr stated that she could see Defendant from where she was sitting but that she did not recall seeing Defendant with a gun. Ms. Orr recalled speaking to Detective Daryl Slaughter about the incident while she was in the hospital. She remembered the detective asking her if Defendant had a gun, but she could not recall her response. She testified that she did not recall telling Detective Slaughter that Defendant fired a gun at her. Ms. Orr explained that she woke up on March 25 in the hospital, where the doctor explained to Mr. Orr that she was paralyzed from her "lower bottom down." Ms. Orr explained that her paralysis was "incomplete"; she had "feeling" but was not able to move.

         Ms. Orr testified that she was reluctant to testify at the probation revocation hearing. She stated that she was scared of Defendant because of "threats" she had received from him. The following exchange between the State and Ms. Orr then occurred:

Q. Ms. Orr, are you afraid to speak out against [Defendant] because you saw him the night that you were shot?
A. Yes.
Q. Was [Defendant] the one who shot you that day?
A. Yes.

         Ms. Orr stated that she did not see Defendant with a gun but stated that neither she nor Mr. Wright had a gun that night, and no one else was present at the time of the shooting. Ms. Orr recalled that she spoke to Detective Slaughter on two occasions. She recalled that he asked who shot her, and Ms. Orr recalled that she told the detective that Defendant shot her. She did not recall telling Detective Slaughter that she saw Defendant pull out a gun and pull the trigger. Ms. Orr reiterated that Defendant was the individual that shot her.

         On cross-examination, Ms. Orr agreed that, from March 2017 until May 2017, she was using prescribed medications "quite heavily" for her condition. She agreed that she took oxycodone, Percocet, and valium but could not recall taking morphine. Ms. Orr denied that she was bipolar and denied telling hospital staff that she was suicidal. She further denied using drugs on the night of the offense. She stated that the first time she saw Defendant was on the day she was shot. She stated that Mr. Wright told her they were going to meet "Dinky." She explained that she saw Defendant standing about ten feet away on the sidewalk "when [they] pulled up." She explained that she was shot under her left arm. She stated that she was on medication on May 12, 2017, when she viewed the photographic line-up but that she was no longer taking morphine and valium.

         Detective Daryl Slaughter of the Chattanooga Police Department testified that on March 24, 2017, he was notified of the shooting on Rawlings Street. Detective Slaughter learned that both Mr. Wright and Ms. Orr were shot; Mr. Wright was taken to Parkridge Hospital, and Ms. Orr was taken to Erlanger Hospital. The detective first spoke to Mr. Wright. He then went to Erlanger and attempted to speak to Ms. Orr; however, she was heavily medicated and was having a CT scan, and he could not speak to her at that time. He visited Ms. Orr several other times at Erlanger but was unable to interview her because she was still heavily medicated.

         Detective Slaughter explained that, on May 12, 2017, he went to Health South, where Ms. Orr was sent for rehabilitation, and interviewed her there. Regarding the interview on May 12, Detective Slaughter stated:

Yes, we had a great conversation, even spoke to her nurse, made sure she was able and went in there and I record[ed] the interview. She was able to tell me details and was very alert.

         Detective Slaughter testified that Ms. Orr was aware that she was being recorded. During the interview, Mr. Orr told Detective Slaughter that she was shot while sitting in the passenger side of her vehicle. She explained that she was paralyzed from the waist down. Ms. Orr said that "Dinky" shot her. Ms. Orr told Detective Slaughter that she had seen him with a gun and that she was able to see him from where she sat in the car. Detective Slaughter stated that he was able to link the nickname "Dinky" to Defendant. He then put together a photographic line-up containing Defendant's photograph, and a patrol officer showed it to Ms. Orr. Ms. Orr identified Defendant from the line-up as the person who shot her.

         The State then introduced Ms. Orr's recorded audio statement given to Detective Slaughter at Health South on May 12, 2017. On the recording, Ms. Orr identified her shooter as "Dinky" and said that she had seen him before. She thought he was not shooting at her, but at her cousin, Mr. Wright. She did not know why he was shooting at Mr. Wright but said that was what she had heard. Ms. Orr emphasized that she had seen Dinky, not simply heard that he was the one who shot her. She stated that she saw him pull the gun out and pull the trigger. Ms. Orr said that she was "one ...


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