State v. Wooten

          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 ...