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Cofer v. Lee

United States District Court, E.D. Tennessee, Knoxville

August 26, 2019

CODY COFER, Petitioner,
v.
RANDY LEE, Warden, Respondent.

          MEMORANDUM OPINION

         Petitioner Cody Cofer has filed a federal habeas petition pursuant to 28 U.S.C. § 2254 challenging his State-court judgments of conviction for two counts of felony murder and one count of attempted especially aggravated robbery. Having considered the submissions of the parties, the State-court record, and the law applicable to Cofer's claims, the Court finds that the petition should be denied.

         I. SUMMARY OF EVIDENCE & PROCEDURAL HISTORY

         The Tennessee Court of Criminal Appeals (“TCCA”) summarized the pertinent facts of this case as follows:

This case arises from the Defendant's participation in a home invasion that resulted in the shooting deaths of two victims, Keith Patton and William Asher. Several individuals participated in this home invasion to varying degrees, including: the Defendant, Joshua Hutson, Alexander Carino, and Amanda Spence. For his role in these crimes, a Cumberland County grand jury indicted the Defendant for two counts of felony murder and one count of attempted especially aggravated robbery.
At the trial on these charges, the parties presented the following evidence: Tyler Rhinehart testified that, in November 2008, he was fourteen years old. Rhinehart said that he knew both victims in this case: Patton was a family friend and Asher employed him to clean out horse stalls at Asher's farm. Rhinehart recalled that, on November 7, 2008, a group of people that included both Patton and Asher met at Cancun's restaurant in Crossville to celebrate Rhinehart's father's birthday. After the dinner and on the drive home, Rhinehart's father stopped at Patton's home in Crab Orchard to use the restroom. Rhinehart said that he entered Patton's home and sat down in a chair in the living room while he waited for his father. Rhinehart described the other people in the room and their locations, saying that Jackie Garrison, his stepmother's father, and Asher were seated on the couch, Patton was seated in a rocking chair, and Michael, a boy his stepmother Angie cared for, sat in a chair “on the other side of the room.” Rhinehart said that “other people” in the residence were in the back bedroom.
Rhinehart testified that, as he sat in the living room talking with the others, two men wearing black masks and carrying guns entered the room and demanded money. Rhinehart recalled that as Patton walked toward the two men, telling them to “get out of his house, ” the two men began shooting. Rhinehart described the first man who entered the living room as “a little bit taller than the second.” Rhinehart recalled that the first man carried an AK47 assault rifle with a loaded clip and one clip attached to the gun. The second man carried a pistol. He said that he did not see the man with the pistol actually fire the gun because he was focused on protecting himself from the gunfire. Rhinehart said that, to his knowledge, Patton did not have a weapon at the time of the shooting.
Rhinehart testified that he laid down on the floor and, after the gun fire stopped, the man carrying the pistol put the pistol up against Rhinehart's head and told him to “get off the phone.” Rhinehart sat up and told the man he did not have a phone. The man carrying the AK47 walked into the adjoining kitchen, toward the back bedroom where Rhinehart could no longer see him. Rhinehart recalled that Patton was lying on the floor next to him, and he could see Patton's gunshot wounds. Asher, who was still seated on the couch, was “leaned back” with his leg on the rocking chair breathing heavily like he was “trying to get air.” At some point after the shooting, Rhinehart saw a third man, who wore a black mask with a white “skeleton type” design on it, stick his head through the door “like [he was] trying ... to figure out what was going on.” The man carrying the pistol pushed the third man out of the doorway and told him to “get out there and watch out.” Rhinehart testified that he heard a truck outside and one of the gunmen yelled “it's the boys, ” and the two men ran out of the house. Shortly thereafter, a friend of Patton's appeared at the door and asked to see Patton. When he saw Patton lying on the floor he walked over and began checking on him. Meanwhile Rhinehart heard a small four-cylinder vehicle, possibly a Kia, start up outside. Rhinehart recalled that his stepmother, Angie, called 911 and his father instructed Jackie Garrison to leave with Rhinehart and Michael “in case somebody came back.” On cross-examination, Rhinehart agreed that, early on the morning after the shooting, he told police that the man who first entered the living room carrying the AK47 was “about six foot tall, slim build and talked with a thuggish accent.” Rhinehart also told police that the second man who entered the living room carrying the pistol was “about five foot two inches and skinny, ” dressed similarly to the first except he wore “gray tennis shoes with drawstrings.” About the third man who had been standing outside, Rhinehart described him to police as “about five foot one inch” tall and “kind of fat.” He said this man was “wearing a black hooded jacket, black toboggan, black and white skeleton motorcycle mask covering his head and face[, ]” and black gloves. Rhinehart testified that he could not tell the race of the three men because all three men were “pretty well covered.” Jackie Garrison testified that his daughter, Angie, is married to Rhinehart's father. Garrison said that he knew both of the victims in this case. Garrison recalled that, on the night of November 7, 2008, he went to Cancun restaurant in Crossville to celebrate his son-in-law's birthday. Garrison said that, after the dinner and on the drive home, Angie asked him to stop at Patton's house, so she could use the bathroom. Garrison stopped, and Patton invited them inside to visit “for a little while.” Garrison said that he was inside Patton's home for about five minutes when two men entered the living room and demanded money. Garrison described the first man who entered the room as tall and the second man as “a little shorter.” He recalled that both men were dressed in black and wearing gloves and masks. The taller of the two men carried an assault rifle with a clip in it and the shorter man carried a black pistol. Garrison clarified that it was the first man who entered the room that demanded money. In response to the demand, Patton stood up from his chair and began walking toward the men telling them to get out of his home. When Patton was approximately six to eight feet from the men, the intruders began firing their guns.
Garrison testified that he never saw the man with the pistol actually fire his gun. He explained that after the man carrying the assault rifle began shooting, he put his head down and began praying. He also said that, to his knowledge, Patton did not have a weapon at the time of the shooting. After the gunfire ceased, the taller man carrying the assault rifle ran toward the back bedroom while the man carrying the pistol remained in the living room and kitchen looking through drawers and cabinets. Garrison recalled that he could see Patton lying on the floor bleeding and that Asher, who was next to him on the couch, was making gasping sounds. Garrison asked the man carrying the pistol if he could help Asher, and the man replied, “if you move, ... you won't need no help either.” Garrison interpreted the statement to mean that the man would shoot Garrison if he attempted to help Asher.
Garrison testified that, as soon as the two shooters left the house, he immediately took “the two young boys, ” Michael and Rhinehart, away from the premises. Garrison testified that he did not see a third person, only the two shooters. Garrison said that, based on his location in the living room, he could not see out the door.
On cross-examination, Garrison said the second man who entered the living room was substantially shorter than the first man who entered the room, estimating the height differential to be between four and six inches. Garrison said that he did not notice anything distinct about the two shooters' speech and that he did not know their race because both men were well covered.
Garrison recalled that a heavyset man came to the door after the two shooters had left. Garrison believed the man's name was “Reed.” Garrison told the man to go get help, and the man got in his truck and left.
Blake Reed testified that he had been friends with Patton since the two were in high school. Although Reed did not know Asher personally, he lived near Asher and “knew of him.” Reed recalled that he stopped by Patton's home at about 9:30 on the night of November 7, 2008. When he pulled in the driveway, he noticed a black car parked in the driveway with round tail lights “stacked side by side.” Reed identified a photograph of a black Kia that belonged to the Defendant's friend, Autumn Hale, as looking “similar” to the one he saw the night of the shooting. Reed said that he emerged from his truck and had stepped up on the porch when “a man came busting out of the house.” Reed said that he could not make out any distinguishing features but noted that the man wore dark clothes. The man told Reed to “get the f* * * in the house.” Because there was no light outside the house, Reed could not see what the man was holding but believed it to be a gun. Reed walked in the house and saw Patton lying on the floor. Garrison, who was seated on the couch, asked if the men were gone. Reed heard tires spin and gravel spewing outside and responded that the men were gone.
Joshua Hutson, a co-defendant in this case, testified that he had known the Defendant almost his whole life and that he met Alexander Carino, another co-defendant, about five months before the shooting. Hutson said that he and Carino discussed the potential of committing a robbery and that he agreed to participate. Hutson recalled that, on November 7, 2008, he spent most of the day at home. In the evening, his girlfriend at the time, Anna Claire Daniels, drove him to meet the Defendant and Carino at a Taco Bell in Oak Ridge, Tennessee. Hutson said Carino drove the three men in a “dark colored four door Kia” to Cumberland County. Hutson said that Daniels was not “involved in any plan” but that she knew the three men were going to rob someone. Hutson said that Daniels “probably [did] not” agree with what he was doing but that she did not tell Hutson not to go.
Hutson testified that, on the way to Cumberland County, the men stopped at the Defendant's home for the Defendant to retrieve black clothing. The Defendant also purchased gloves at a gas station for the Defendant and Hutson. Hutson said that all of the men dressed similarly, although Hutson's mask had a camouflage pattern covering the bottom portion of the mask. Once the men arrived in Cumberland County, they drove down Highway 70 looking for the “right home.” Carino was not sure which home was Patton's, so he called Amanda Spence, who knew the location of Patton's home, but she did not answer her phone.
Eventually, Spence returned Carino's call, and the men drove to Spence's home. Hutson said that he had only met Spence one time previously. Hutson recalled that Carino, the Defendant, Spence, and a friend of Spence's were all present when they discussed the robbery. Spence provided the men with a diagram of the layout of the residence. Spence then went with the men to “scout[ ] the place out.” Hutson said they had guns in a bag in the trunk of the Kia. After returning to Spence's house, Hutson took the driver's seat and drove the men to Patton's home where he stopped in front of the neighbor's driveway. The Defendant and Carino got out of the Kia with guns and walked toward the residence, while Hutson drove down the street and then back past Patton's home, ultimately parking in the driveway.
Hutson testified that, before Carino and the Defendant went into Patton's home, he and Carino placed their cellular phones and keys in the glove compartment of the Kia. The State produced, and Hutson identified, both his and Carino's cellular phones. Hutson recalled that, after he parked in Patton's driveway, he got out and walked around to the front of the car. Carino instructed Hutson to turn off the headlights, and Hutson did so. Hutson said that Carino was standing at the corner of the house closest to the door while the Defendant was on the other corner. Carino entered the house first, carrying an assault rifle, and then the Defendant entered, carrying a handgun. Hutson said that he stood beside the driver's side door as the men entered the home. Almost immediately, Hutson heard “rapid gunshots, ” so he reached in the glove compartment, grabbed the cellular phones and keys, and ran to the front porch. When he looked in the residence he saw someone sitting on the couch “that stared directly back at [him], ” a man lying on the floor, and the Defendant standing with the pistol drawn. The Defendant told Hutson to “keep a lookout, ” so Hutson ran back to the driveway. Within a minute, another car pulled into Patton's driveway, and Hutson fled.
Hutson described himself as “pretty scared” at the time. He then apologized to the families of the victims and said that “not a day goes by that I don't wish things were different and wish that I could turn back time.” Hutson said that he felt responsible for his role in these crimes.
Hutson testified about his flight into the woods. He said that he was unfamiliar with the area and quickly became lost, so he tried to call Daniels, who did not answer her cell phone. He said that he spoke with the Defendant, who was with Carino, several times and learned that both men had left Patton's home and that Spence would pick Hutson up. Hutson recalled that he exited the woods looking for Spence twice. The first time he left the woods he saw a police car and the second time he saw a white pick-up truck. The white pick-up truck stopped and a woman got out of the truck with a shotgun and told Hutson to lie on the ground. Hutson said that he complied, and the woman waited there until police arrived and Hutson was taken into custody. Hutson said that, during his flight through the woods, he threw out a .22 caliber derringer, the gloves, the mask, and he lost a shoe close to the road where he was arrested.
Hutson testified that he did not take responsibility initially and lied to investigators. Hutson explained that he did so because he was scared of possible retaliation. Hutson told investigators what they already knew and what he thought they might believe because he was “really overwhelmed with the whole situation.” Hutson agreed that he was charged with the same crimes as the Defendant and that he hoped for some form of leniency for his testimony. Hutson denied that the State had made any promises as to his potential sentence. Hutson said that he was not testifying because he wanted a “get out of jail free card” but because he believed it was important for him to take responsibility for his actions by telling the truth. Hutson said that he had not spoken with Carino, the Defendant, or Spence since the shooting.
On cross-examination, Hutson agreed that he had bought and sold marijuana and cocaine. Hutson said that “marijuana was being smoked” during the afternoon and evening of the robbery. Hutson confirmed that his conversations about the robbery, prior to its occurrence, were with Carino and not the Defendant. Carino told Hutson that Spence knew someone they could rob. Hutson again confirmed that Daniels, who drove him to meet Carino and the Defendant, knew that the men were going to Cumberland County to rob someone. Hutson agreed that, if he had returned with money, Daniels would have benefitted from it. Hutson also agreed that Daniels never tried to discourage him from participating. Although Daniels knew Hutson owned a .22 caliber pistol, she did not know that he took the gun with him or that the two other men took guns.
Amanda Spence, a co-defendant, testified that she had known Alexander Carino since she was fifteen and that his nickname was “Reno.” She said that she did not meet the Defendant until the night of the shooting. Spence explained that, at the time of these events, Carino was her drug source for cocaine and occasionally marijuana. Spence recalled that Carino told her that he needed to “hit some lick.” Spence explained that “hitting a lick” meant “[t]o rob someone.” She said Carino asked her if she knew anyone he could rob, and she told him she did not. At the time of this conversation, other people were present at Spence's home, so Carino talked with “a couple other guys” about a specific place he could rob. Spence admitted that she played a role in relaying information from “the guys” to Carino about Patton's home as a potential robbery hit. Spence said that she did not know Patton, but she became familiar with where he lived through the course of these events.
Spence testified that she was in the process of moving on November 7, 2008, when she received several phone calls from Carino to her cellular phone. Spence returned Carino's phone calls, and he told her he was waiting for her at her house. Carino also texted Spence on that day telling her to “go by” Patton's residence to “see who was there and what was there and what it looked like.” Spence said that she did not go to Patton's home and, instead, lied to Carino, telling him that she had gone by Patton's home. Spence explained that she lied to Carino to “pacify him” because he called repeatedly and would not “take no for an answer.” Spence said that she did not believe that Carino was serious about the robbery because he “always talked about things like this and never actually went through with a lot of things that he talked about.”
Spence testified that, after speaking with Carino on the phone, she went home where she found Carino in a black four-door vehicle with the Defendant and Hutson. Spence identified a black Kia in the State's photograph as looking like the car she saw the three men driving. Spence said that she repeated the same information to Carino about Patton's home and then gave him the directions to the house. Spence said that she asked Carino to take her to the store and, as they were preparing to leave, the Defendant brought a bag into her home. Spence asked Carino what was in the bag, and Carino told her that guns were in the bag.
Spence testified that, after leaving her residence, they drove by Patton's residence, which was dark. They returned to Spence's residence, where the three men took the bag of guns and left. Thirty minutes to an hour later an “865” number that Spence did not recognize displayed as an incoming call to her cellular phone. Spence answered the phone, and the Defendant yelled at Spence that “things didn't go the way they were planned.” The Defendant instructed Spence to go and get Hutson who was still at Patton's residence. Spence said that she recognized the voice on her cellular phone as the Defendant's voice because he had a “distinct accent” that is “really ghettoish.” The Defendant hung up on Spence, so she tried to call Carino, but Hutson answered the phone. Hutson told Spence he was “in the woods” and did not know his specific location. Multiple phone calls were exchanged between Spence, Hutson and the Defendant. Spence described the flurry of phone calls as a “panic type situation.” Ultimately, Spence said that she left her home to try and find Hutson.
Spence testified that, when she drove by Patton's residence, she saw an ambulance, fire trucks, police officers, and a helicopter. Spence recalled that she talked with Carino and told him about all the emergency personnel at Patton's residence and that she saw police arresting Hutson. Spence said that she did not know exactly where the Defendant and Carino were at that time but that, earlier, Carino had told Spence they were going back to Knoxville.
Spence testified that law enforcement came to her home the following day and gave her a copy of a search warrant. The officers also told her that she was under arrest. Thereafter, investigators interviewed Spence and, initially, she lied. Spence explained that she lied because she was told to do so, and she was scared. As the investigators began to present various pieces of evidence to Spence, she began telling the truth.
Spence testified that she had a drug problem in November 2008. She said that she used marijuana, Xanax, Percocet, and “Hydros.” Spence acknowledged that, before the shooting, she had been charged with delivery of more than .5 grams of cocaine and that she was currently serving a six-year sentence on an unrelated conviction. Spence agreed that she was also charged for these offenses. She said that she hoped that her testimony would result in a more lenient sentence but that the State had not promised her anything in exchange for her testimony.
On cross-examination, Spence testified that the two men who provided her with information about Patton were Mike Fisher and Jason Coy, who bought large quantities of drugs from Patton. Spence denied ever buying marijuana from Patton and maintained that her drug source was Carino. Spence agreed that she was “high on marijuana that night” but denied any cocaine use that evening. She said that, despite the marijuana use, she had a clear recollection of the events. Spence said that she did not believe Carino knew Patton at all. Spence testified that a friend, Allison Pinson, was with her when she returned to her home and found Carino along with Hutson and the Defendant on the night of the shooting. Pinson also drove Spence to pick up Hutson because Spence did not have a valid driver's license. Spence agreed that she was also on house arrest at the time.
Anna Claire Daniels testified that she had known Hutson since the two were in sixth grade and were dating at the time of these events. Daniels said that she also knew Carino, through Hutson, and the Defendant, with whom she went to kindergarten. Daniels testified that, on the day of the shooting, she and Hutson spent the morning and afternoon together. At some point, she drove Hutson to a Taco Bell in Oak Ridge, Tennessee to meet the Defendant and Carino. Daniels said that she returned to Knoxville while the three men planned to drive to Crossville in a black Kia. She said that “they had bad intentions” to “settle a dispute.” Hutson and Daniels had contact after she dropped him off at the Taco Bell, but Hutson became “very short” and evasive as to where he was and what he was doing. Daniels said she sent a text message to Hutson, but he did not respond. Daniels said that she fell asleep at her home and, when she woke up around 11:30 p.m., she noticed she had missed several phone calls from Hutson at around 10:30 p.m. Daniels said that she suspected that “something wasn't right” when she returned Hutson's phone calls, and Hutson's cellular phone was turned off. Daniels said she then called Carino's girlfriend, Ashley Snow, and learned that the men needed a ride.
Daniels testified that she, along with Snow and one of Snow's friends, drove to a BP gas station in Solway, Tennessee, to meet Carino and Hutson. When she arrived, however, she found Carino and the Defendant. When she inquired about Hutson, she was told “they've got him.” She later learned that Hutson was not there because he had been arrested. Carino and the Defendant began taking items out of the vehicle they had been driving, a red Explorer, and placing the items in Daniels car. Daniels said that Carino got into her car, and the Defendant left. As Daniels drove back to Hutson's apartment with Carino, Snow, and Snow's friend, she began to understand what had occurred based on the conversation in the car. Daniels recalled that she turned onto a side road in Karns by a baseball field, and Carino got out of the car. Daniels said that she was instructed to turn the car around. She did so and when she returned to where Carino had exited her car, she saw his shoes burning on the side of the road. Carino got back into the car, and Daniels drove to Hutson's apartment.
Daniels testified that, as the night progressed, she grew more concerned about Hutson and what had occurred in Cumberland County. The following day, she contacted police and provided information about Carino's location, and he was later arrested. Daniels said that she also gave a statement to police and assisted Agent Calahan in finding the area where Carino burned his shoes. Daniels testified that she and Hutson were no longer in a relationship, although she had spoken with him “a couple of weeks ago.”
On cross-examination, Daniels agreed that Hutson was the source of most of the information she provided to police. From Hutson, she had learned that the three men were going to “see about marijuana and possibly fifty thousand dollars.” Daniels said that she dropped Hutson off at a Taco Bell to meet Carino and the Defendant at 6:30 or 7:00 p.m. eastern time. Daniels said that she met the Defendant and Carino at the BP gas station at around midnight eastern time.
Jason Legg, a TBI agent, testified that, in November 2008, he assisted in an investigation involving the Defendant. Agent Legg said that, during the course of the investigation, a black Kia was recovered at a detail shop in Oak Ridge. Agent Legg recalled that the car was “spotless” when recovered on November 10, 2008, three days after the shooting. The detail shop's records indicated that Autumn Hale, a friend of the Defendant's, brought the car to be detailed. Based upon further investigation, Agent Legg learned that the Kia was to be sent to Atlanta and shipped to Italy where Autumn Hale's husband, a member of the armed forces, was stationed.
Dan Friel, a Tennessee Bureau of Investigation (“TBI”) special agent, testified that he assisted in an investigation involving the Defendant. Investigator Friel recalled that, on November 10, 2008, he executed a search warrant at 109 East Drive, Kingston, Tennessee. Investigator Friel said that the home at this address belonged to the Defendant's mother, Mary Costello, and authorities believed the Defendant was living at his mother's home. Investigator Friel identified a TBI property release form that documented the items found during the execution of the search warrant, including a Motorola AT & T wireless cellular phone and a pair of Nike shoes.
Judy Morris, an AT & T area manager, testified that the company keeps records on all cellular phones and the usage in the ordinary course of business. Morris identified the AT & T cellular phone records submitted for a prepaid phone which included the location of the cell tower site used to connect the calls. The prepaid phone information requested was for the phone police recovered from the Defendant's mother's home. The subscriber information for the cellular phone number 865-851-3032 was “Cody Coser” with an address of “Preston Road in Dallas, Texas.” Morris agreed that because identification is not required to set up a prepaid phone the information provided is unverified.
Eric Tyrell, a Sprint Nextel Telecommunications supervisor, testified that the company maintained phone records that included subscriber information, cell sites, call detail records which document incoming and outgoing calls for an account, and text message content. Tyrell explained that the company had various locations with cell sites to transmit phone calls. Tyrell said that, when a phone call is placed, the company network assesses the call to find the cell site with the strongest signal to connect to the Sprint Nextel phone. Although the strongest cell site, due to terrain or weather, may not be closest, generally the closest cell site is used to transmit the calls. Tyrell identified records his company provided in response to a legal demand in this case.
Robert Moelter, a Verizon Wireless facility manager, verified that the Verizon wireless records pertaining to the trial were maintained through the normal course of business. Moelter testified that the company keeps records of all cellular phone calls made, the cell tower used to process the call, the originating and destination number and text messages. Moelter explained that, usually, the closest cell tower to the Verizon phone user is the cell tower that processes the call.
Jeff Slayton, a Cumberland County Sheriff's Department investigator, testified that he assisted in the homicide investigation related to the Defendant. Investigator Slayton testified that, on the night of November 7, 2008, he responded to a “shots fired” call near Crab Orchard. When Investigator Slayton entered the residence, he observed Patton lying on the floor, conscious and breathing, with his eyes open. Patton appeared to have sustained multiple gunshot wounds. Several individuals were gathered around Asher attempting to stop his bleeding. Investigator Slayton said that he immediately went to the other end of the residence to make sure no shooters were still inside the home. After determining the shooters were not in the residence, Investigator Slayton returned to the Sheriff's Department to prepare a search warrant for the residence.
Investigator Slayton testified that Josh Hutson was the first to be apprehended as a suspect in this case. Hutson was found a short distance from the crime scene and was wet, dirty, and missing one shoe. Two cell phones were found on Hutson's person when authorities took him in to custody. A mask “with a definite pattern” was also found “very near” Hutson when he was apprehended. Investigator Slayton said that, once search warrants for the phones were obtained, he was able to retrieve phone information from the cell phone companies. Based upon this information, he learned that the subscriber for one of the cellular phones was Ashley Snow, Alexander Carino's girlfriend, and the subscriber for the other phone was Josh Hutson. Investigator Slayton said that the phone number assigned to Ashley Snow appeared in the “Contacts” section of Josh Hutson's phone under the name “Reno.” Authorities also learned that Snow was the assigned subscriber for two cellular phones. Based upon this information, Investigator Slayton said that he suspected that Alexander Carino was the one who actually used the cellular phone for which Ashley Snow was the subscriber.
Investigator Slayton testified that in the Contacts section of Josh Hutson's cell phone there was a phone number, 865-851-3032, listed for a “Cody C.” The same phone number was listed in Carino's cell phone contacts under the name “Cofer.” The subscriber information provided from the phone company identified “Cody Coser” as the subscriber for this cell phone number and was associated with the cellular phone that police recovered from the Defendant's mother's residence. Police also recovered a cell phone from Amanda Spence, and the subscriber information indicated Spence was the subscriber.
Investigator Slayton testified that Special Agent Brad Neeland and Lieutenant Investigator Casey Cox interviewed Hutson the night of the shooting and, at some point, Hutson requested an attorney. After an attorney was appointed, Hutson gave another statement. Investigator Slayton said that, as frequently occurred in his work with defendants, Hutson was not initially truthful. Hutson omitted or changed certain facts in his statement. The same occurred with Spence in that she initially withheld information.
On cross-examination, Investigator Slayton testified that, although Hutson initially denied participation, he later identified “some people that might have been involved, ” one of whom was Amanda Spence. Spence was then taken in to custody, and she also provided information. Through interviews with these two suspects, authorities became aware that Carino and the Defendant might be participants in the shooting. As the investigation progressed, Spence, Hutson, and Carino began cooperating with the authorities. Hutson ultimately admitted to the possession of a .22 caliber gun on the night of the shooting, but he stated that he disposed of the weapon. Investigator Slayton agreed that the .22 caliber gun was never found.
Investigator Slayton testified that Patton “was known to deal in marijuana or sell marijuana or use it.” Investigator Slayton did not recall whether marijuana was found in the residence when authorities executed the search warrant. He did recall the recovery of “at least” a thousand dollars during the search.
Dr. Feng Li, Senior Associate Medical Examiner for Davidson County, testified that his office performed autopsies for Cumberland County. Dr Li said that he performed Asher's autopsy and found gunshot wounds to the chest with injury to the major branch of the major artery and the top of the left lung. A “small fragment of jacket” was recovered during the autopsy, but a bullet was not recovered because the bullets both entered and exited Asher's body. Dr. Li testified that the gunshot wound was fatal and the manner of death was homicide.
Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox and Anderson counties, testified that she performed an autopsy on Patton's body. Dr. Mileusnic-Polchan found a total of eight gunshot wounds. Some of these wounds were caused by small caliber bullets, while at least one gunshot wound was due to a large caliber bullet. A small caliber bullet was retrieved from Patton's back, and a “deformed” large caliber bullet was retrieved from the pelvic area. Another small caliber bullet was recovered from Patton's buttocks. Dr. Mileusnic-Polchan testified that the cause of death was multiple gunshot wounds.
Robert Royse, a TBI Forensic Scientist, testified that he assisted in the investigation involving the Defendant. Agent Royse explained that he reported to the scene and identified and recorded physical evidence. Multiple .40 caliber Smith and Wesson cartridge cases were recovered in Patton's living room. Additionally six .223 round cartridge cases were recovered. Agent Royse testified that this type of ammunition is associated with assault-type rifles. The shell casings were recovered “a little bit all over the place” in the living room and in the kitchen. Agent Royse explained that this distribution was because semi-automatic or fully automatic firearms eject fired cartridge cases to the right and slightly to the rear.
Agent Royse testified that he tested the Smith & Wesson .40 caliber pistol recovered in this case and examined the three .40 caliber cartridge casings recovered from Patton's home, and the bullet fragments recovered during the autopsy of Patton's body. Based upon his examination and testing, he determined that the cartridge casings recovered from Patton's home and the bullet fragments recovered from Patton's body were all fired through the barrel of the Smith & Wesson .40 caliber pistol. Agent Royse also identified a Norenco Model BWK92 S porter Carbine, commonly referred to as an AK47. Agent Royse testified that the six .223 cartridge casings recovered from the crime scene as well as the bullet fragments collected during the autopsy from Patton's body had been fired from the assault rifle.
On cross-examination, Agent Royse agreed that five bags of money, totaling approximately $2, 500, and one pound of marijuana were also recovered during the search of Patton's residence.
Wilson White, a Cumberland County Sheriff's Department Correctional Officer, testified that he worked in the jail, caring for inmates. Officer White recalled one day when he was assigned to the “tower, ” or the central control of the maximum security area that provided a clear view of all fifty-two inmates. Officer White identified an incident report that he drafted on April 5, 2009, at 6:15 a.m. The report detailed an incident that occurred immediately after breakfast when inmates brought their food trays out of their cells and placed them on a cart. Officer White observed Carino bring his tray out of his section and the Defendant squat down and slide a piece of paper into the hallway. After Carino placed his tray on the cart, he bent down and picked up the piece of paper that the Defendant had slid into the hallway and then returned to his cell. Officer Wilson instructed another correctional officer to retrieve the paper from Carino. Officer White testified that he recognized the paper the officer retrieved as the one he saw the Defendant push out in the hallway because the paper had a torn corner. When he opened the paper, it contained all numbers. He gave the paper to Sergeant Millsted.
Officer Wilson confirmed that, from the time the Defendant slipped the note outside of his cell to the time that the correctional officer took the paper from Carino, the paper was visible to him, except for when Carino passed through a doorway that obstructed his view for “[t]wo seconds at the most.” Officer Wilson said that the correctional ...

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