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State v. Waggoner

Court of Criminal Appeals of Tennessee, Knoxville

September 24, 2019


          Session: May 29, 2019

          Appeal from the Criminal Court for Union County No. 5019 E. Shayne Sexton, Judge

         The Defendant, Kevin Waggoner, appeals his conviction for second degree murder for which he received an eighteen-year sentence. On appeal, the Defendant challenges: (1) the sufficiency of the evidence supporting his conviction; (2) the trial court's failure to grant a change of venue; (3) the trial court's failure to grant a new trial due to juror misconduct; (4) law enforcement's failure to record the statements of the Defendant and the Defendant's son; (5) the admission of testimony from the forensic pathologist related to crime scene reconstruction; (6) the trial court's exclusion of the recording of the Defendant's 911 call; (7) the trial court's exclusion of evidence of the victim's conduct directed at the Defendant and his family; and (8) the trial court's denial of the Defendant's request for access to the audio recordings of the trial. Upon reviewing the record and the applicable law, we affirm the trial court's judgment.

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

          Mike Whalen (on appeal), Tommy Hindman (at trial), and Scott Lanzon (at trial), Knoxville, Tennessee, for the appellant, Kevin Waggoner.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Jared R. Effler, District Attorney General; and Graham Wilson and Tyler Hurst, Assistant District Attorneys General, for the appellee, State of Tennessee.

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




         The evidence presented at trial established that on the night of September 16, 2013, the Defendant shot his neighbor, Mr. Michael Woodby, four times, killing him. The Defendant maintained that he shot the victim after the victim attacked the Defendant's twenty-one-year-old son, Mr. Kolton Waggoner, with a stick. The Defendant was charged with second degree murder, and a jury was unable to reach a verdict in the first trial. During the second trial, eighteen witnesses testified, and 144 exhibits were introduced. We briefly summarize the evidence presented at trial.

         The State's Proof

         In August 2010, the victim, his wife, Mrs. Teresa Woodby, and their young grandson moved into their home. The Defendant lived in a home across the highway from the Woodbys with his wife, Mrs. Kennette Waggoner, their daughter, and Mr. Kolton Waggoner. The Defendant operated a firearm store on his property called The Gun Shack, but he closed the store sometime before the shooting. The Waggoners often shot firearms on their property. Mrs. Shirley Muncey, who lived beside the Woodbys, testified that the Waggoners shot their firearms so often that it was as if a gun range was located on their property. The Waggoners also detonated explosives, which shook the neighboring houses.

         The Woodbys and the Waggoners maintained an amicable relationship during the first several months. According to Mrs. Woodby, the conflict began after the victim was hospitalized due to heart issues. Following the victim's discharge from the hospital, he went to the Waggoners' home and asked them to stop shooting firearms for a few weeks until he regained his strength. Mrs. Woodby said the Defendant cursed at the victim, stated that the victim could not tell them what to do, "backed [the victim] off with a gun, " and ordered the victim off his property. Shortly thereafter, the victim took a basket of tomatoes to the Waggoners and tried to talk to them, but the Waggoners responded in the same manner. The Waggoners continued shooting firearms and detonating explosives.

         The Waggoners began video recording the Woodbys using both stationary and handheld video cameras. Mrs. Woodby testified that the Waggoners were recording them "24/7." On numerous occasions, Mrs. Woodby saw Mr. Kolton Waggoner recording her while she was inside her home. The Waggoners recorded the Woodbys' grandson as he was playing outside or waiting for the school bus to arrive. Ms. Jessica Waggoner, who was not related to the Waggoners and drove the bus for the Head Start program in which the victim's grandson was enrolled, and Mr. Derrick Merritt, who drove the bus for the school in which the victim's grandson was later enrolled, both confirmed the Waggoners' behavior. Ms. Jessica Waggoner observed a boy and an older woman on the Waggoners' property armed when they were video recording. She was so concerned about the safety of the children on the bus due to the Waggoners' behavior that she arranged to pick up the victim's grandson at another location. Even at the new location, she saw a camouflaged vehicle with a video camera on top of the vehicle drive by slowly as if it was recording the bus stop. Ms. Jessica Waggoner testified that the victim was active in the Head Start program and was chairman of the policy council. She said the victim was "really kind and caring" with the children, as well as with his grandson. She never saw the victim threaten anyone.

         The Woodbys called the police on the Waggoners over three hundred times, but the Waggoners were never arrested. The Woodbys responded to the Waggoners by begging to be left alone, cursing and yelling at them, and laughing at them. The victim threw rocks at them on one occasion and threatened them on numerous other occasions. The victim attempted to end the dispute on multiple occasions to no avail. He hung a dry erase board in front of the Woodbys' windows and wrote messages such as, "Love thy neighbor"; "Please leave me alone"; "I'm not bothering you"; and "Can't we just end this[?]" Mrs. Woodby said the Waggoners followed her and her grandson around town, followed her to work, and waited down the highway for her to return home from work. As a result, she had the victim post a sign in their yard that read, "Stalking is a crime." Despite the Woodbys' pleas and the victim's threats, the Waggoners continued to record them.

         Numerous audio and video recordings from handheld video cameras made by the Waggoners and illustrating the behavior of the Waggoners and the Woodbys were introduced at trial. Some of the recordings were on a disc entitled "The truth about Highway 370" that was included in a packet sent by the Defendant to the Tennessee Bureau of Investigation ("TBI"), other law enforcement officials, and news outlets three days before the shooting. Mrs. Waggoner provided some recordings to officers on the night of the shooting. Officers also recovered approximately 180 hours of audio recordings and 100 to 200 hours of video recordings during the execution of a search warrant at the Waggoners' residence following the shooting. The audio recordings included the Defendant's own telephone conversations and his conversations with his family.

         During a conversation audio recorded on June 8, 2012, after the Defendant had spoken to officers as a result of the Woodbys calling the police, the Defendant discussed the Woodbys with his family and asked Mr. Kolton Waggoner, "Do you think I finally have him more upset with me than you?" Mr. Kolton Waggoner responded, "No, " and made a comment that caused the Defendant to laugh. Mrs. Waggoner stated that the Defendant had "them scared to death, " laughed, and said, "You have upset their family. Their way of life." In February 2013, the Defendant contacted the Social Security Administration in an effort to thwart the victim's attempt to obtain disability benefits and referred to the victim as a "pathological liar." On May 27, 2013, the Defendant and the victim were involved in an altercation at a convenience store. On that same day, the Defendant recorded a telephone conversation between himself and another person regarding the victim during which the Defendant stated that he did not understand how someone could be "oblivious" to his surroundings and "how close you are to dying." The Defendant said it was "within his control not to die from me."

         On June 6, 2013, the Waggoners video recorded the Woodbys outside with their grandson. The victim placed a sign in his yard stating that video recording was prohibited without his permission. The Waggoners continued to record Mrs. Woodby and her grandson while he played outside. On August 20, the victim became upset with the Waggoners' recording and yelled that the Waggoners were "pedophiles, " liked recording children, and to "protect your children." A video recording from the next day showed Mr. Kolton Waggoner walking to his family's mailbox and the victim throwing an object at him, while calling him a "b***h, " a "piece of s**t, " and a "pedophile." Nine days later, on August 31, the Waggoners recorded the victim as he said he was "begging" them to agree to resolve their differences. The Waggoners did not respond verbally and continued recording the Woodbys.

         On September 3, the Waggoners recorded Mrs. Woodby as she was in her yard. She called the Waggoners "sick" and "perverts" and yelled that they had "nothing better to do than to videotape a young child and an old man." She accused them of harassment and bullying. She made a call on her cell phone, stating that the Waggoners were standing in their yard with video camera, "flipping her off, " and calling her names. She said "the boy" was on her property earlier. The victim came out of his house and yelled that "the boy" had a gun. Later, while the Waggoners were recording the Defendant as he walked along the Woodbys' side of the highway, the victim yelled, "If you come over here with a gun, I'm gonna drop your a**, " and, "You have no business coming over here harassing us."

         On September 8, the Waggoners recorded the victim as he was out on his porch yelling about someone on the road with a gun. The victim yelled, "I'm gonna splatter his head all over the road"; "I'll kill that son of a b***h"; and "I'll go to jail, and you'll be dead if you keep coming over here with a gun." The next night, the Waggoners recorded the victim as he cursed them and called them names from his property. The victim yelled, "Stop playing games, " and, "I'll put a hole in you."

         On September 10, the Waggoners filmed the Woodbys and their grandson outside in their yard while Mr. Kolton Waggoner walked up and down the highway in front of the Woodbys' home with a firearm on his side. The victim ran to the highway and cursed and threatened Mr. Kolton Waggoner, who admitted to possessing a firearm. The Defendant began walking beside Mr. Kolton Waggoner, and Mr. Kolton Waggoner threatened the victim. The Defendant, who had a firearm at his side, told the unarmed victim, "Take one step, and I'll shoot a hole in you're a**." The Defendant had his hand on his firearm while continuing to state "one step" in a low voice. Mrs. Woodby came to the road and yelled that Mr. Kolton Waggoner was harassing her grandson. The police were called, but Mr. Kolton Waggoner gave his firearm to the Defendant before officers arrived.

         The Defendant made an audio recording of himself walking along the highway on September 14, two days before the shooting. He stated that the "fat bastard" was walking down the driveway. The victim asked the Defendant to resolve their differences. The Defendant told the victim to leave him and his family alone, and the victim said he would do so. The Defendant continued narrating into the recorder, spending several minutes ranting about the victim and mentioning someone who "ought to hit Tannerite, " an explosive.

         The Waggoners recorded the Defendant walking up and down the highway during the early evening hours of September 16, the date of the shooting, as Mrs. Woodby arrived home from work. After the Woodbys ate dinner, the victim went for a walk. Mrs. Woodby testified that the victim typically took a walking stick, cigarettes, and a flashlight when he walked. Sometime later, Mrs. Woodby went outside to smoke a cigarette and wait for the victim to return. She heard gunshots, believed that the Waggoners were shooting because they saw her outside, and reentered her home. She did not hear any other noises prior to the gunshots.

         The Defendant shot the victim four times, returned to his home, and called 911. He set an audio recorder on his police scanner and recorded the police officers' radio communications regarding the shooting. His recording of the police scanner while officers were responding to the scene was played at trial.

         Officers arrived at the scene at approximately 10:15 p.m. When Union County Sheriff's Deputy Lance Thomas exited his patrol car, he saw the Defendant walking down a driveway with a firearm on his side. The Defendant was holding a cell phone, a flashlight, a radio, and a soda bottle. Deputy Thomas ordered the Defendant to put up his hands so officers could secure the firearm. Deputy Thomas had to issue the order three times before the Defendant complied, and at one point, the Defendant, a school resource officer, stated, "I'm one of you all." After officers secured the Defendant's handgun, they placed him in the back of a patrol car.

         Deputy Thomas asked the Defendant for the victim's location, and the Defendant stated that the victim was "down the road." Deputy Thomas looked in the median but did not see anyone. He again asked for the victim's location, and the Defendant said the victim was in the ditch. The Defendant admitted to shooting the victim. Deputy Thomas found the deceased victim lying in a ditch on the Woodbys' side of the highway.

         During the investigation, Mr. Kolton Waggoner reported that he had been assaulted. An emergency medical technician ("EMT") examined him at the scene, but he refused to go to the hospital that night for medical treatment.

         Officers found a cigarette butt, a stick, a flashlight, and four spent cartridge casings near the victim's body. Two of the spent cartridge casings were in the grass; one was in the grass near the highway; and one was on an area of the highway near the victim's body. The flashlight was on and had holes in the bottom and under the handle. A bottle containing liquid was beside the highway on the Waggoners' side, and a second flashlight was on the Waggoners' side of the highway. Officers collected a projectile that was attached to the victim's skin near his stomach but did not enter his body. Officers located blood in the grass near the victim's body and underneath his body but did not locate any blood on the highway.

         The victim's DNA was on the cigarette butt, and his blood was on the stick. A DNA profile consistent with a mixture of genetic material from at least two individuals was on a non-stained area of the stick. The victim was the major contributor, and the minor contributor could not be determined.

         TBI Special Agent Jessica Hudson examined the flashlight found near the victim's body and determined that a bullet had passed through it. The hole in the bottom on the flashlight tested positive for lead, indicating that the hole was the bullet's point of entry. Two more holes were inside the flashlight, and the bulb holder tested positive for lead. The bullet exited near the top of the flashlight underneath its handle.

         While executing a search warrant at the Defendant's residence, officers recovered multiple handheld video cameras, surveillance cameras, and audio recorders. One of the audio recorders was on the bed of a pickup truck and was recording at the time of the search. The names of the victim and Mrs. Woodby and their respective dates of birth were written on a page in a notebook seized from the residence.

         The TBI crime laboratory conducted testing on the Defendant's Glock, Model 19, nine millimeter, semi-automatic pistol; another pistol of the same model and two other semi-automatic pistols from the Waggoners' residence; the four fired cartridge casings found near the victim's body; the bullet found on the victim at the scene; and three bullets removed from the victim's body during the autopsy. Retired TBI Special Agent Steve Scott testified that the four cartridge casings were fired from the Defendant's pistol and that the bullets could have been fired from either of the Glock pistols. A magazine and twelve unfired cartridges were sent with the Defendant's pistol. The unfired cartridges were nine millimeter cartridges loaded with brass-jacketed, hollow point bullets. The four bullets and the four spent cartridge casings were of the same type and design as the unfired cartridges.

         Special Agent Scott testified that when the Defendant's gun was fired at the twelve o'clock position, the cartridge casings ejected three to five feet away and to the right and slightly to the rear between the three and five o'clock positions. He said the travel distance once the cartridge casings struck the floor was not measured because the distance was dependent upon the surface struck.

         Dr. Christopher Lochmuller conducted the victim's autopsy and determined that the victim died from multiple gunshot wounds. The victim was shot four times on the right side of his body. He sustained gunshot wounds to the right shoulder, the upper right side of the chest near the right shoulder, the right side of the chest next to the right nipple, and the right forearm. The gunshot wounds would have been painful and would have resulted in external bleeding.

         One bullet entered the back of the victim's right forearm, struck a bone, and exited through the front of the right forearm. The bullet traveled back to front, right to left, and slightly down. The bullet attempted to reenter the victim on the right side of his abdomen. Dr. Lochmuller noted a scraped area of skin where the bullet contacted the right side of the victim's lower abdomen but did not have enough energy to penetrate the abdomen. He testified that when the victim sustained the gunshot wound, his forearm was down and close to his abdomen, and Dr. Lochmuller agreed that the position of the victim's forearm would be consistent with him holding a walking stick when he sustained the gunshot wound. Dr. Lochmuller said that this particular gunshot wound generally would not be fatal in an otherwise healthy person but noted that the victim had underlying heart disease. The bullet that caused this wound was recovered by law enforcement at the scene.

         A second bullet entered the right side of the victim's chest next to his right nipple, damaged his right lung and heart, and stopped under the skin on the left side of his chest. A third bullet entered the victim's upper right chest near the right shoulder; traveled through a rib, the right lung, the diaphragm, and the liver; and stopped at the fatty structure that holds vessels supplying blood to the intestines. A fourth bullet entered the lateral aspect of the victim's right shoulder; exited the inside of the right arm near the armpit; reentered on the right side of the chest in the armpit area; traveled through a rib, the diaphragm, and the liver; and stopped in the pancreas. Dr. Lochmuller said the wounds from the second and third bullet were likely fatal.

         Because there was no unburnt gunpowder particles around the entry wounds, Dr. Lochmuller classified the wounds as distant gunshot wounds where the gun was fired from a distance of more than two feet away from the victim. He believed the bullet that entered the victim's right shoulder passed through another object before doing so. The entry wound was irregular in shape, and scrapes and fragments from either the bullet or the intermediary object were around the wound. Dr. Lochmuller examined the flashlight with the holes in it and agreed that it was possible that the victim was holding the flashlight in his left hand when the bullet passed though it prior to striking the victim's right shoulder.

         The bullets that entered the right forearm and the right side of the chest next to the right nipple traveled slightly downward, while the bullets that entered the upper right chest next to the right shoulder and the lateral aspect of the right shoulder traveled at a more downward angle. Dr. Lochmuller testified that because the bullets struck the right side of the victim, the shooter was standing to the victim's right when he fired the shots. When provided with a scenario in which the shooter was shorter than the victim, Dr. Lochmuller testified that the victim may have been squatting or leaning toward the direction in which the bullets were coming, that the shooter may have been on higher ground than the victim, or that the shooter may have been holding the gun up higher and pointing downward. According to measurements taken at the scene, the center of the highway was the highest elevation; the highway was slightly higher on the Woodby side than the Waggoner side; and the ditch line where the victim's body was found was the lowest elevation.

         On cross-examination, Dr. Lochmuller agreed that he could not determine the sequence in which the shots were fired, the exact position of the victim when he was shot other than the position of his right arm and forearm, and the exact position of the shooter other than that he was to the victim's right. Dr. Lochmuller also agreed that the victim could have been shot while falling after receiving the initial gunshot wound, which would have explained the downward trajectory.

         The Defendant was interviewed by TBI Special Agent Andy Corbett and Detective Steve Rouse during the early morning hours of September 17, 2013. The Defendant waived his rights and gave a written statement, which he reviewed and signed, after making multiple corrections. Prior to the interview, the Defendant was wearing an earpiece that, typically, is used in communications through a two-way radio.

         The Defendant told the officers that the animosity between the Waggoners and the Woodbys began approximately two and one-half years before the shooting when the Defendant refused to sell a firearm to the victim because the victim was a convicted felon. The Defendant said that when the victim stated that he would send Mrs. Woodby to purchase a firearm, the Defendant informed him that was illegal. The Defendant stated that after the incident, the Woodbys began calling the police on his family and screaming, cursing, and threatening them. The Defendant said that approximately one year prior to the shooting, the victim fired a shotgun from his porch and screamed at the Waggoners, "That's what is going to happen." The Defendant contacted the Department of Children's Services ("DCS") regarding the Woodbys' grandson after the victim threatened Mr. Kolton Waggoner. The Defendant put together packets that included reports and a video recording and sent them to the TBI, other law enforcement agencies, government officials, and news outlets.

         The Defendant stated that at approximately 6:30 p.m. or 7:00 p.m. on the evening of the shooting, he was walking on the highway in the area in front of his home. At some point, the victim came outside and cursed and screamed at him. The Defendant denied responding in kind.

         The Defendant stated that between 8:30 p.m. and 9:00 p.m., he and his son went for a walk along the highway to spend time together. The victim came out of his home and off his porch and began yelling at them. The Defendant heard a noise that sounded like a baseball bat hitting the asphalt but did not see the victim with a bat or a stick. The victim was approximately twenty to thirty feet behind them and shined a flashlight at them. The Defendant said he shined his flashlight at the victim, who screamed at them, and the Defendant told the victim to leave them alone.

         According to the Defendant, the victim rushed at him and Mr. Kolton Waggoner and began swinging a bat or a stick at both of them. The Defendant estimated that the victim struck Mr. Kolton Waggoner two or three times and said he later learned that his son was struck on his arm and neck. The Defendant did not recall being struck but stated that he felt the air of the bat as the victim swung at them. He said he yelled at the victim to leave multiple times but that the victim did not do so. The Defendant stated that he pulled his gun out of its holster, pointed it at the victim, and ordered him to leave, but the victim continued to swing the bat or stick in the Defendant's direction. The Defendant did not know where his son was at the time. The Defendant stated that he "had to stop [the victim] from killing us, " so he aimed at the victim's "center mass" and shot four rounds. The victim stopped, "moved to the other side of the ditch of [the highway] on the north side, " and lay down. The Defendant said, "Where everything happened is within close proximity to where I saw [the victim] go into the ditch line." He instructed his wife over a two-way radio to call 9-1-1. He then returned to his home where he called 9-1-1 and requested two ambulances, one for his son and one for the victim.

         During the interview, the officers asked the Defendant to indicate his location at the time of the shooting on a drawing of the area. Special Agent Corbett testified that the Defendant indicated that he was on the south side of the highway or the Waggoner side of the highway, which was consistent with his statement. The Defendant never expressed uncertainty or confusion in giving his statement and was allowed to leave following the interview.

         The Defendant's wife gave officers contemporaneous video footage taken from a surveillance camera. The shooting was not within the view of the camera, which was directed at the Woodbys' property. The recording showed a fire on the side of the Woodbys' home and someone walking around the fire. The recording also showed someone, who appeared to be the victim, walking along the Woodby side of the highway. Although the Defendant stated that he and his son also were walking along the highway, Special Agent Corbett did not see anyone coming from the Waggoner residence in the recording.

         Officers recovered an audio recording of a conversation between the Defendant and his wife after the Defendant returned from his initial interview. The Defendant questioned his wife about telling officers that she had heard five shots when he told them that he had fired four shots. Mrs. Waggoner mocked Mrs. Woodby and Mrs. Woodby's questioning of the officers about the shooting. Mrs. Waggoner mentioned removing a recorder from the Defendant's shirt pocket. However, officers never recovered the recorder, and the Defendant never turned it over to them.

         After interviewing the Defendant, Special Agent Corbett interviewed Mr. Kolton Waggoner. Officers took multiple photographs of him, including one in which he was pointing to his left temple where he alleged he had been struck with the victim's stick. Special Agent Corbett did not see any visible injuries on Mr. Kolton Waggoner. Although Mr. Kolton Waggoner stated that he had been hit on his shoulder, there were no black marks, soot, or other damage to his shirt or hoodie that he was wearing when the shooting occurred.

         Special Agent Corbett noted inconsistencies between the statements of the Defendant and Mr. Kolton Waggoner, as well as inconsistencies between their statements and the evidence at the scene. Special Agent Corbett requested a second interview with the Defendant, who agreed to participate. The interview began at 10:23 p.m. on the day following the shooting. The Defendant waived his rights and gave a second written statement.

         The Defendant stated that around 8:30 p.m. to 9:00 p.m. on the night of the shooting, he smelled what he believed to be a fire, but he did not see a fire beside the victim's house. The Defendant did not recall his son checking on the smell outside. When the Defendant went outside to speak to his son at approximately 9:00 p.m., he did not see the victim walking along the highway, and he did not recall his son telling him that the victim was walking along the highway. The Defendant did not recall a discussion with his son about checking on vacant property next to the victim's home.

         The Defendant stated that he and his son were walking on the south side of the highway when the Defendant realized that the victim was behind them. The Defendant said that when the victim came at them with a "bat/stick, " the victim hit Mr. Kolton Waggoner first. The Defendant did not know if his son attempted to run away to avoid getting hit by the victim. The Defendant believed the victim was after both of them and did not recall the victim chasing Mr. Kolton Waggoner down. The Defendant did not know the number of times that the victim hit Mr. Kolton Waggoner with a stick, and the Defendant said he lost track of his son once the victim hit his son. The Defendant did not know where his son was when the Defendant shot the victim.

         The Defendant stated that he shot the victim because he believed the victim would kill him and his son. The Defendant said that when he "opened fire, " he was standing in the roadway in the area of the south side ditch, and the victim was on the south side of the yellow line and approximately six or seven feet away. The Defendant maintained that he believed the victim was close enough to attack him. The Defendant stated that when he pointed the gun at the victim, the victim had the "bat/stick" in "his right hand placed behind his shoulder ready to strike" the Defendant. The Defendant was "certain" that the victim was not at the ditch line on the north side when he was shot, and the Defendant stated that he was on the south side of the road at the ditch line and was running out of space. The Defendant did not know where the cartridge casing that ejected from his gun went and said the cartridge casings generally ejected to his right. He stated that he shot the victim four times because he believed the victim was still capable of killing him with the "bat/stick." The Defendant never saw his son pull out his gun during the incident. After giving ...

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