First-degree murder conviction reversed after trial court refused to admit co-defendant’s statements against interest

In an appellate win for Sparta attorney Michael J. Rocco and Spencer attorney Matthew S. Bailey, the Tennessee Court of Criminal Appeals reversed a first-degree murder conviction in White County, Tennessee.  For my readers in the Upper Cumberland, you may remember this story as the Dollar General Murder.

The case involved two co-defendants who killed a woman at the Dollar General Store in northern White County and the defendant who allegedly set up and encouraged the murder.  At trial, the State showed that the defendant’s cell phone sent text messages to the victim that lured her to the Dollar General Store.  The defendant’s cell phone also sent text messages to one of the co-defendants encouraging the murder.  Seems pretty cut and dry, right?  If the defendant set up and encouraged the murder, why is the court of criminal appeals reversing the case?

Here’s why.  The co-defendant who received messages from the defendant’s phone told police that she had used the defendant’s phone to set up the deal.  Not only did she admit to having the phone, the co-defendant even corrected police on a specific detail that the defendant allegedly texted to the victim.  The detective asked the co-defendant, “[W]as anything said . . . in the text messages like I’m sending my girl,” to which the co-defendant responded, “[M]y lady.”  The actual text message from the defendant’s phone to the victim’s phone said “my lady.”  Furthermore, the other co-defendant and another witness saw the co-defendant with two phones the night of the murder.

At a motion in limine hearing, the trial court excluded the co-defendant’s statements as hearsay, finding that the statement against interest exception did not apply.  The trial court reasoned that a full confession was needed for a statement against interest.

On appeal, however, the appellate court noted that the statement against interest exception does not require a full confession.  See Tennessee Rule of Evidence 804(b).  It only requires an admission.  Here, the codefendant made five statements that were against her interest, and thus, should have been admitted.  Specifically, she (1) admitted that she used the defendant’s phone to set up the deal, (2) stated that she had the defendant’s phone, (3) claimed she pretended to be the defendant and that the defendant did not send her, (4) knew the specific content of the text messages sent from the defendant’s phone to the victim’s phone, and (5) claimed the defendant had no involvement on what transpired the night of the murder.  The court of criminal appeals analyzed each of these statements and determined that, while they were not full confessions, they were against the co-defendant’s interest because they implicated her in the murder.  Accordingly, they should have been admitted into evidence for the jury to consider.

Having determined that the trial court erred by not allowing the jury to hear the co-defendant’s statements that she had the defendant’s phone on the night in question, the appellate court then turned to whether the error was harmless or prejudicial.  “Improperly admitted evidence is reviewed under a non-constitutional harmless error analysis.”  To prove that a non-constitutional error is prejudicial, the defendant must show that the error “more probably than not affected the judgment or would result in prejudice to the judicial process.”  State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (quoting Tenn. R. App. P. 36(b)).  In analyzing whether failing to admit the statements affected the judgment, the court noted that the defendant repeatedly claimed that she was not in possession of her phone on the night in question.  Furthermore, the co-defendant stated she had the defendant’s phone and that she pretended to be the defendant to set up the meeting with the victim.  Moreover, the other co-defendant and another witness testified that they both saw the co-defendant with two phones the night of the murder.  Finally, the Tennessee Court of Criminal Appeals noted that there was no physical evidence linking the defendant to the victim’s murder.  In other words, it all came down to who had the defendant’s phone when the victim was killed.  Given the entire case hinged on that question, the erroneous exclusion of the co-defendant’s statements more probably than not affected the jury’s outcome and resulted in prejudice to the judicial process.  Reversed.

State v. Young, No. M2016-01149-CCA-R3-CD (Dec. 7, 2017)

First-degree murder conviction reversed because the trial court failed to instruct the jury on self-defense

Yesterday, the Tennessee Court of Criminal Appeals reversed a first-degree murder conviction because the trial court did not give the jury a self-defense instruction.  A trial court is required to provide a jury with a self-defense instruction “[i]f the evidence at trial fairly raises a general defense.”  According to the Tennessee Supreme Court, sufficient evidence to fairly raise a general defense “is less than that required to establish a proposition by a preponderance of the evidence.”  State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013).  In determining whether the above standard is met, the trial court must consider the evidence in the light most favorable to the defendant and draw all reasonable inferences in the defendant’s favor.

Under Tennessee Code Annotated section 39-11-611, a person acts in self-defense when the person:

is not engaged in unlawful activity and is in a place where the person has a
right to be has no duty to retreat before threatening or using force intended
or likely to cause death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent danger of
death or serious bodily injury.
(B) The danger creating the belief of imminent death or serious bodily
injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.

In addition, a person who provokes another’s use or attempted use of unlawful force is not justified in threatening or using force unless the person “abandons the encounter or clearly communicates to the other the intent to do so; and the other person nevertheless continues or attempts to use unlawful force against the person.”

In this case, two of the three eyewitnesses testified that the defendant was the primary aggressor.  However, the third eyewitness stated that the victim “pulled his pants up as in with aggression” and started “coming towards [the defendant].”  According to the third eyewitness, the defendant then put his hands up like “[h]old up” and the victim reached for the defendant’s gun in his waistband.

Interestingly, the third witness’s testimony differed from his initial statement to police.  Originally, he told police that the victim pulled his pants up at the defendant and the defendant pushed him off.  Then, the defendant reached for his gun as the victim rushed him.

Despite the inconsistency, the court of criminal appeals found the third witness’s testimony sufficient to fairly raise the question of self-defense.  The court noted that, while the third witnesses’s testimony was inconsistent with his original statement, at trial he consistently testified that the victim rushed the defendant and reached for the defendant’s gun.  Importantly, the jury could have believed the third witness instead of the other two witnesses.  This factual issue was for the jury, not the court, to decide.  Therefore, since the evidence fairly raised a self-defense claim but the jury was denied the opportunity to consider whether the defendant acted in self-defense, the Tennessee Court of Criminal Appeals reversed the conviction and ordered a new trial.

State v. Boswell, No. W2016-02591-CCA-R3-CD (Tenn. Crim. App. Dec. 5, 2017)

Brutal murder of mother and daughter in Bledsoe County

By now, most of you have heard about the gruesome killing of a Pikeville mother and her adult daughter in their home this past week.  Pikeville Police Chief Ronald Byrd commented, “Nobody should be treated . . . the way they were done.  I’ll just say that.”  Bledsoe County Sheriff Jimmy Morris stated, “I guess we can say it’s a brutal murder.”  There are rumors that the pair were hacked to death with an ax.

The daughter’s boyfriend, 43-year-old Joe Whittenburg, has been charged with two counts of homicide.  Interestingly, Whittenburg was found unconscious and had to be transported to Erlanger hospital in Chattanooga.

While it is too early to say exactly what happened, the fact that Whittenburg was unconscious raises an interesting question.  Specifically, what role does intoxication play in a defense?  Tennessee Code Annotated section 39-11-503 provides:

(a) Except as provided in subsection (c), intoxication itself is not a defense to prosecution for an offense. However, intoxication, whether voluntary or involuntary, is admissible in evidence, if it is relevant to negate a culpable mental state.

(b) If recklessness establishes an element of an offense and the person is unaware of a risk because of voluntary intoxication, the person’s unawareness is immaterial in a prosecution for that offense.

(c) Intoxication itself does not constitute a mental disease or defect within the meaning of § 39-11-501. However, involuntary intoxication is a defense to prosecution, if, as a result of the involuntary intoxication, the person lacked substantial capacity either to appreciate the wrongfulness of the person’s conduct or to conform that conduct to the requirements of the law allegedly violated.

(d) The following definitions apply in this part, unless the context clearly requires otherwise:

(1) “Intoxication” means disturbance of mental or physical capacity resulting from the introduction of any substance into the body;

(2) “Involuntary intoxication” means intoxication that is not voluntary; and

(3) “Voluntary intoxication” means intoxication caused by a substance that the person knowingly introduced into the person’s body, the tendency of which to cause intoxication was known or ought to have been known.

Assuming felony murder doesn’t apply, the State will need to show premeditation and intentionality if they want to convict Whittenburg of first-degree murder.  T.C.A. § 39-11-503.  As seen above in the intoxication statute, both voluntary and involuntary intoxication are relevant to whether a person has a culpable mental state.  So, if the defendant was so high that he was out of his mind, this may make it difficult for the State to prove first-degree murder.  Similarly, an extreme level of intoxication could also be a defense against second-degree murder, which is the “knowing” killing of another.

But what about reckless homicide?  If you look back at the intoxication statute, voluntary intoxication does not matter if the crime only requires recklessness.  Why?  Presumably, it’s because you’re already being “reckless” if you voluntarily take drugs that make you lose your mind.  So, if someone voluntarily takes drugs that make him unaware that his actions could kill someone and he kills someone, he may be convicted of reckless homicide.

With that said, a jury could reject an intoxication defense altogether and find the defendant guilty of first-degree or second-degree murder.  As an attorney, I regularly have to focus clients on “what would a jury think?”  That often matters more than the truth.  Perhaps, the defendant was out of his mind, but the facts make it unlikely that a jury would believe it.  On the other hand, the defendant could have been in his right mind, but the facts make it likely that a jury would think he was too intoxicated to know what he was doing.  That’s why it’s best to speak with a good attorney.  While no one can know exactly what a jury will do, an experienced attorney will help a defendant make informed decisions in his case.