Court of Criminal Appeals of Tennessee, Knoxville
Session July 24, 2019
Appeal
from the Criminal Court for Knox County No. 103924 Steven
Wayne Sword, Judge
The
Defendant-Appellant, Jeffrey Wooten, was convicted as charged
by a Knox County jury of three alternative counts of first
degree felony murder; first degree premeditated murder; two
counts of especially aggravated burglary; especially
aggravated robbery; two counts of aggravated robbery; two
counts of attempted especially aggravated kidnapping; two
counts of carjacking; two counts of evading arrest; two
counts of employment of a firearm during the commission of a
dangerous felony; aggravated burglary; and automobile theft,
for which he received an effective sentence of life
imprisonment without parole plus forty-eight years to be
served in the Tennessee Department of Correction. In this
appeal as of right, the Defendant contends that the trial
court erred in admitting portions of a 911 call; that there
was insufficient evidence to support the Defendant's
convictions; that the trial court erred in allowing evidence
of an alleged offense in Georgia during the penalty phase;
and that the trial court erred in imposing partial
consecutive sentencing. Upon our review, we affirm the
judgments of the trial court. However, we remand this case
for entry of judgment forms for each count of the indictment.
Tenn.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed; Remanded for Entry of Judgments Reflecting
Merger
Mark
E. Stephens, District Public Defender, and Jonathan Harwell,
Assistant Public Defender, for the Defendant-Appellant,
Jeffrey Wooten.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Senior Assistant Attorney General; Charme
Allen, District Attorney General; and Kevin J. Allen,
Assistant District Attorney General, for the Appellee, State
of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court.
Robert L. Holloway, Jr., J., filed a concurring opinion in
which Timothy L. Easter, J., joined.
OPINION
CAMILLE R. McMULLEN, JUDGE
Facts.
This
case stems from two burglaries during which the homicide
victim, Randy G. Lands, was shot and killed. Although the
Defendant did not contest that he was "involved" in
the victim's death, his defense theory at trial was that
another, unknown individual was responsible for the crime.
Prior to trial, the Defendant filed a motion in limine
seeking to exclude portions of a 911 call from May 9, 2014,
the day the victim was killed. As relevant to the motion, the
facts showed that upon arriving home from the gym on the
morning of the May 9th, Rebecca Garner, the victim's
sister, and Loretta Lands, the victim's mother, observed
a blue van in their driveway. The driver of the van, later
identified as the Defendant, approached them and held a gun
to Garner's head. He demanded her car keys, and, after a
brief struggle, the Defendant took Lands' purse and phone
and fled in Garner's SUV, a black Ford Edge. A neighbor
called 911 and gave the phone to Garner, who then began to
give the 911 operator details from the carjacking. While
Garner was talking to the 911 operator, she entered her
mother's home and discovered her brother's lifeless
body. The 911 call captures Garner and Lands crying and
emotionally upset. As grounds for exclusion, the Defendant
argued that this portion of the 911 call was "highly
prejudicial and inflammatory and the probative value was
substantially outweighed by its prejudicial effect." In
response, the State argued that the 911 call was
"corroborative" testimony and was admissible as an
excited utterance. After listening to the 911 call, the trial
court denied the motion.
At
trial, Michael Allen Mays, the manager of records for Knox
County Emergency Communications, testified regarding two
computer aided dispatch (CAD) reports from 911 calls made on
May 7, 2014, and May 9, 2014. He explained that a CAD report
is generated from the data input into their computer system
by each 911 operator responding to a 911 call. The first CAD
report showed that on May 7, 2014, at 5:36 p.m., Mike Wooten
called 911 to report a burglary at 4027 Lonas Drive at 5:36
p.m. Wooten called back at 6:47 p.m. that same day to report
that his parents' van had been stolen from their garage.
Mays also conducted a historical search from the phone number
called by Wooten, which showed an ambulance call to the same
address on May 3, 2014, in response to "a 74-year-old
male, possible stroke." The second CAD report showed
that on May 9, 2014, 911 dispatch received a call that was
coded as a "carjacking" at 7622 Hunters Ridge Way.
Mays also testified that he compiled a compact disc
containing the audio recordings of the 911 calls from these
reports. After defense counsel renewed their previous
objection, the disc was admitted into evidence as an exhibit
and played for the jury at trial.
Michael
Wooten testified that in May 2014, his parents, Don and
Bobbie Jean Wooten, resided in his childhood home located at
4027 Lonas Drive, Knoxville, Tennessee. Around this time,
Wooten's father had suffered several strokes, which
caused him to be hospitalized. Michael Wooten and his mother
would alternate between staying at the hospital overnight and
checking on the home. While he could not recall the exact
day, he recalled that at some point in May 2014, he left the
hospital to check on his parents' home and discovered
that it had been burglarized. He observed that the television
had been torn off the wall and that his parents' van had
been stolen from the garage. He reported the offense to the
police.
Bobbie
Jean Wooten, [1] the Defendant's aunt, testified
consistently with the testimony of her son, Michael Wooten.
She also identified several photographs of items taken from
the May 7 burglary including the flat screen television, her
diamond ring, medicine bottles, and her husband's wallet.
She further confirmed that the van that was taken from her
garage had a specialized license plate which read, "Don
and Bobbie." On cross-examination, she agreed that the
Defendant had not been to her home "more than a dozen or
so times in his entire life." She had difficulty
remembering the last time the Defendant had been inside their
home; but she recalled that it was when the Defendant had
paid back money he had borrowed from her husband. She was
aware that the Defendant previously had been in a serious car
accident and agreed that he had "never been the same
since that accident." Finally, Bobbie Jean Wooten agreed
that her home had been burglarized previously by her
granddaughter who pleaded guilty to that offense. She agreed
that there were two sets of keys for the van: a set that her
husband kept and a set that was kept underneath the floormat
in the van. She was uncertain if the key recovered by the
police was the key to the van.
Rebecca
Kay Garner, the victim's sister, testified that her
brother, age 44, suffered from epileptic seizures his entire
life. Based on his condition, the victim had "the mental
capacity of maybe a [10] to 12-year-old" child. She said
her brother lived with her mother, needed help taking care of
himself, and enjoyed his privacy. She also identified
photographs of her brother from a family reunion a year
before his death, which were admitted as a collective
exhibit. Various photographs of her Hunters Ridge Way home,
which she had purchased for her mother and brother, were also
admitted into evidence and used throughout her testimony.
On May
9, 2014, Garner had come home for the weekend from out of
town to visit her then 78-year-old mother for Mother's
Day. That morning, Garner and her mother had gone to the gym,
and upon returning home, they noticed a van parked in her
mother's backyard. Garner testified that this was
"unusual" because the van had to "go
around" her mother's car to get in the driveway and
that it was parked on the lawn. She said that the doors to
the van were open and that a man was leaning partially into
the van. Because Garner's neighbor had been having some
work done at his home, Garner parked her SUV in the driveway
and did not think any more about the van.
Garner's
mother exited the car first, and the man began talking to
her. As Garner approached, she observed that the man had a
gun in his hands. Garner testified that the man put the gun
to her mother's back and pushed her mother back toward
the car. The man then approached Garner, grabbed her arm, and
put the gun to her head. The man said, "'Get in the
car. I'm going to kill you. I'm going to shoot you.
Get in the car.'" Garner resisted, refused to get in
the car, and reasoned, "'If you're going to kill
me, you're going to have to do it here.'" After
a brief struggle, Garner managed to free herself and screamed
for her mother to run. The man grabbed Lands' purse and
phone, got into Garner's black SUV and drove away. The
van remained parked in the Lands' driveway.
As the
man was driving away, Garner ran toward a neighbor's
house, screaming for her to call 911. While in her
neighbor's driveway, Garner began talking to the 911
operator and Lands started walking back toward her home.
Garner followed her mother and observed broken glass near the
back-porch window. Garner remained on the phone with the 911
operators as she entered the home. Standing a few steps in
the kitchen doorway, Garner immediately observed her
brother's body, with blood "all around his
head." She said the victim's body was laying
face-down, with his feet toward the refrigerator. She knew
her brother had passed away because his face was "blue
looking." Garner was unable to go into the kitchen;
however, her mother, in tears, knelt near the victim's
body and held his head. Shortly thereafter, they exited the
house and waited for the police to arrive. Approximately
thirty minutes later, Garner's mother suffered a heart
attack, was rushed to the hospital, and eventually had open
heart surgery.
At
trial, Garner identified the man she encountered in her
mother's driveway on May 9, 2014, as the Defendant.
Garner also identified various photographs of items that were
taken during the May 9 offense, all of which were admitted as
exhibits. The photographs included: Garner's car,
Garner's watch, necklace and jewelry of her mother's,
her mother's keys which had been inside her mother's
purse on May 9, her mother's driver's license and the
victim's social security card, her mother's cards
that were inside of her wallet inside of her mother's
purse, her mother's vacuum cleaner which was kept in the
laundry room inside of her mother's home, and
Garner's luggage. Garner's luggage was returned to
her two days after the offense. A photograph showing the
inside of her luggage revealed her Kindle, her mother's
CD player, and a remote control for one of their televisions.
Garner testified that on the day of the offense, she had left
her Kindle and the remote on the bedroom nightstand in the
master bedroom of her mother's home. She testified
further that the CD was inside the same nightstand drawer.
Garner
also identified the following other items including:
medication belonging to her mother and her brother; a
pillowcase from the victim's room; sandals; a flowery
suitcase; gold box; the victim's camouflage wallet; a
television remote; a U.S. bank box taken from her
mother's room; checks with the victim's name; the
victim's guitar taken from the living room; the
victim's knife; her mother's silver taken from the
dining room drawer; and the victim's laptop. Garner
testified that she did not know the Defendant prior to the
instant offenses. She knew of no reason for her brother's
blood to have been found inside the van parked at her
mother's house and there was no reason for the
Defendant's blood to have been found inside her
mother's home.
Loretta
Lands, the victim's mother, testified consistently with
the testimony of her daughter, Rebecca Garner. At trial,
Lands also identified the man she encountered in the driveway
on May 9, 2014, as the Defendant. She additionally said that
before going to the gym on the morning of May 9, the victim
was up and getting dressed. She told him they were going to
the gym and would be back to go into town or do whatever they
had planned for the day. Lands also identified items taken
from her during the carjacking that were subsequently found
in Garner's car, and she noted that Garner kept a
"spotless" car, unlike its condition in the
photograph. Lands also identified items taken from her home.
She specifically identified a $400 check, made out to cash,
which contained her name in the signature line; however, she
did not sign it. Lands also said that the "reddish brown
stains" found on the pillowcase were not there prior to
the offense. On cross-examination, Lands testified that the
victim would have dinner regularly with her neighbor, John
Herrle. She denied that she, Garner, or the victim smoked
cigarettes.
Barbara
Linkes testified that she lived across the street from Lands
and the victim and that Lands was one of her best friends. On
the morning of the offense, Linkes observed a
"green-bluish van" pull into Lands' driveway,
which was unusual because "[the van] went right up past
[Lands'] truck into [Lands'] backyard." She
testified that thirty minutes later, she observed Garner
running toward her and screaming for her to call 911, which
she did. Linkes' grandson, Mark Linkes, also testified
that he was outside in the yard when the van drove into
Lands' driveway. Mark Linkes testified that the van
pulled into the driveway approximately thirty to forty-five
minutes before his grandmother called 911. After his
grandmother called 911, Mark Linkes approached the van, which
remained parked in Lands' driveway, and observed ropes
and appliances inside. Another neighbor of the Lands, Jeffrey
Lynn Perry, age 52, was pushing his bike up a hill on the day
of the offense when he too observed Garner running down the
street yelling for help.
John
Herrle testified that the Defendant married his ex-wife in
2008. Sometime after his divorce, Herrle moved into the
Lands' neighborhood. He continued to have contact with
the Defendant because the Defendant would help his ex-wife
with the visitation arrangements for Herrle's children.
Herrle also confirmed that he had asked the Defendant to do
some yard work in November 2009 and January 2010. Herrle
recalled that after the Defendant completed the January job,
he observed the Defendant exiting the Lands' home with
the victim and Herrle's handicapped nephew, Tim Doty. All
three individuals came to Herrle's home and appeared to
be getting along.
Vola
Gail Clabough knew the Defendant through her sister and had
not seen him for approximately two or three years prior to
the instant offenses. Clabough testified that on May 8, 2014,
the Defendant came to her home on Harris Road and that he was
driving a van. Clabough had never seen the van, and the
Defendant told her that he had purchased it. The Defendant
stayed at Clabough's home for about an hour and left
around 4:30 p.m. Clabough testified that the Defendant
returned to her home the next day, May 9, 2014, driving a
black, "newer car." The Defendant stayed at her
home for approximately two and a half hours. Shortly after
the Defendant left, the police arrived at Clabough's home
in search of unusual activity in the area. The police showed
Clabough photographs of the blue van and the black SUV, and
Clabough identified them as the vehicles she observed the
Defendant driving. Robert Rush, a neighbor of Clabough's,
testified and confirmed that he was present at Clabough's
home on May 9, 2014. As Rush was entering Clabough's
home, Rush observed a man exiting the door. Rush said that
the man almost fell back on the steps but simultaneously kept
his hand in his pocket, which Rush opined was consistent with
the man holding a knife or a gun. Rush said the man then took
off around him and drove away in a black car.
Sergeant
Jeff Jackson of the Knox County Sheriff's Department
testified that he was the first officer to respond to the
burglary call at the Lands' home on May 9, 2014. Upon
arrival, he met with Garner and Lands, entered their home,
and secured the area for the arrival of major crime
detectives and forensic personnel. Sandi Campbell, a member
of the Knox County Sheriff's Office crime scene unit,
also responded to the Lands' home and video recorded
various aspects of the crime scene. She created a compact
disc of portions of the crime scene video which was admitted
as an exhibit and narrated for the jury. She also assisted in
processing for latent fingerprints and lifted several latent
fingerprint cards from the entry door. She said these cards
were forwarded to Tom Finch for further examination. Officer
Campbell also responded to Cedar Bluff Towing, where the van
that had been in the Lands' driveway was stored and
inventoried for evidence. On cross-examination, she confirmed
that the video captured two cigarette butts in the driveway;
however, she did not collect them.
Nathan
Stansberry of the Knox County Sheriff's Office responded
to the Lands' home and took photographs, processed the
van parked in the driveway for latent fingerprints, and
collected deoxyribonucleic acid (DNA) or used DNA swabs. A
collective exhibit of various photographs and digital images
that were taken from the scene was admitted into evidence. He
also noted that a .380 caliber shell casing was collected
from the scene, which was admitted as an exhibit at trial.
Officer Stansberry collected (1) the envelope containing the
victim's fingernail clippings from the medical examiner,
(2) the projectile recovered from the victim's head from
the medical examiner, (3) a DNA card from the medical
examiner, and (4) buccal swabs from the Defendant. These
items were forwarded to the Tennessee Bureau of Investigation
(TBI) for further examination and analysis.
Sergeant
Mackenzie Alleman of the Knox County Sheriff's Office
responded to the Lands' home and testified consistently
with prior crime scene officers. She added that there was
visible reddish-brown staining in different areas on the van,
all of which were swabbed and collected for later analysis.
She further explained that there were approximately 100 items
that were collected and processed from the van. For ease of
reference, she compiled a spreadsheet showing the item, the
officer who collected it, where it was found, and the date
and time it was collected. She noted that the spreadsheet
erroneously listed the location of a bag of evidence in the
emergency room rather than the forensic center where the
autopsies are performed. The spreadsheet also noted that a
different officer collected the evidence, which Sergeant
Alleman corrected at trial. She processed two latent print
cards from inside the home, which were not usable. She
confirmed that a matching pillowcase from inside the
Lands' home was later found inside of the van. She
compiled a compact disc of photographs taken from processing
the van for evidence, which was admitted as an exhibit and
displayed in detail to the jury.
There
were over 200 photographs taken of the van and its contents.
Sergeant Alleman showed the photographs to Lands and Garner,
who identified multiple items that belonged to them. The
photographs also showed where the items were located in the
van and included items taken from the Lands' home such as
a full-size vacuum cleaner, lots of jewelry boxes, medication
bottles, tools, luggage, table clothes, two televisions, a
tablet, a portable CD player, two remotes inside the luggage,
a large rope, a pillowcase full of medication, a wallet, a
set of keys, a guitar, and women's sandals. Sergeant
Alleman further confirmed that .380 caliber ammunition and
various items of paperwork bearing the Defendant's name
were recovered from the van.
Sergeant
Alleman requested ten items to be forwarded to and examined
by the TBI including: a cardboard box from atop the dryer
with a reddish-brown stain on it recovered from the
Lands' home; a full Coca-Cola can and a Fender hat found
near the victim's foot in the kitchen in the Lands'
home; two swabs of reddish-brown stains from the passenger
side front handle of the van, two swabs of reddish-brown
stains from the van handle rear back door; two swabs from the
front edge of television taken from the victim's room
[recovered from the van]; miscellaneous papers and gloves
recovered from the van; a .380 caliber spent casing removed
from the floor of the van; a .380 caliber live round; and two
swabs from the front dash of the interior of the van, all of
which were admitted as exhibits at trial. Finally, Sergeant
Alleman assisted in obtaining postmortem fingerprinting of
the victim for later comparison and analysis.
On
cross-examination, Sergeant Alleman agreed that Randy Turner
had reported that he had received a box from the Defendant,
admitted as an exhibit, which Sergeant Alleman had processed
for evidence. A bus ticket issued in the name of "Tom
Roberts" was inside the box, which showed that it was
purchased on May 6, 2014, at 10:59 p.m. The bus was scheduled
to depart Nashville on May 7 at 1:30 a.m. and arrive in
Knoxville on May 7 at 5:30 a.m. She agreed that a Dodge Ram
key was located inside a pillowcase inside of the van.
Although she recovered three cigarettes, two Pall Malls and a
Camel, from nearby Lands' car, they were not forward to
the TBI for testing. She agreed that no cigarettes were found
inside the Lands' home or inside the van. She further
acknowledged the presence of two Mountain Dew cans in
photographs from the van, which were not collected or
processed for fingerprints.
Captain
Miles Park of the Knox County Sheriff's Office, an expert
in fingerprint identification, testified that he analyzed one
latent fingerprint card recovered from the television taken
from the victim's room and two from the van. Based on his
expert opinion, each of the latent prints that were recovered
matched the fingerprints of the Defendant. Officer Tom Finch,
an expert in fingerprint analysis employed with the Knox
County Sheriff's Department, testified and confirmed that
three prints ...