State of Tennessee v. Bruce D. Mendenhall

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 15, 2011 at Knoxville

STATE OF TENNESSEE v. BRUCE D. MENDENHALL

Appeal from the Criminal Court for Davidson County

No. 2008-C-2541 Steve R. Dozier, Judge

No. M2010-01381-CCA-R3-CD - Filed January 30, 2013

Following a jury trial, the Defendant, Bruce D. Mendenhall, was convicted of three counts

and acquitted of two counts of solicitation to commit first degree murder, a Class B felony.

See Tenn. Code Ann. §§ 39-12-102, -12-107, -13-202. The trial court sentenced the

Defendant to ten years for each conviction and ordered that the sentences be served

consecutively, for a total effective sentence of thirty years. In this appeal as of right, the

Defendant contends the following: (1) that the trial court erred by denying his motion to

sever two of the counts; (2) that the trial court erred by denying his motion to suppress his

statements to the police; (3) that the trial court erred by denying his motion to suppress his

statements made to a fellow inmate turned police informant; (4) that the trial court erred by

denying his motion to suppress numerous letters the Defendant had sent from jail; (5) that

the trial court erred by admitting redacted portions from numerous letters the Defendant had

sent from jail and from several telephone conversations the Defendant had while in jail; (6)

that the trial court erred by admitting evidence of another crime as “contextual background

evidence;” (7) that the evidence was insufficient to sustain the Defendant’s convictions; and

(8) that the trial court erred by imposing consecutive sentences.1 Following our review, we

affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, J R. and C AMILLE R. M CM ULLEN, JJ., joined.

C. Dawn Deaner, District Public Defender (at trial); Jason Gichner (at trial), Jeffrey A.

DeVasher (on appeal), and Melissa Harrison (on appeal), Assistant Public Defenders, for the

appellant, Bruce D. Mendenhall.

1

For the purposes of clarity and brevity, we have renumbered and reordered the issues as stated by the

Defendant in his brief.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; Pamela Sue Anderson and

Rachael Marie Sobrero, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

FACTUAL BACKGROUND

In 2007, the Defendant was arrested and charged with the murder of Sara Hulbert.

Sergeant Pat Postiglione and Detective Lee Freeman of the Metropolitan Nashville Police

Department (MNPD) led the murder investigation. Shortly after his arrest, the Defendant

gave a statement alleging that he had nothing to do with Ms. Hulbert’s murder and that three

other individuals were responsible for killing Ms. Hulbert: Lori Young, Ritchie Kiem, and

David Powell. However, the police were unable to find any evidence connecting these

individuals to Ms. Hulbert’s murder. While awaiting trial for the murder of Ms. Hulbert, the

Defendant was housed at the Davidson County Sheriff’s Department’s (DCSD) Criminal

Justice Center (CJC) in Nashville, Tennessee. On August 15, 2008, the Defendant was

indicted for soliciting a fellow inmate, Roy Lukas McLaughlin, to commit the premeditated

first degree murders of Ms. Young, Mr. Kiem, and Mr. Powell. The Defendant was also

indicted for soliciting another fellow inmate, Michael Jenkins, to commit the premeditated

first degree murders of Sgt. Postiglione and Det. Freeman. A jury trial on the charges was

held from January 11 to January 15, 2010.

I. The Sara Hulbert Murder Investigation and the Defendant’s Arrest

At trial, Det. Freeman testified that he was called to the scene of Ms. Hulbert’s murder

in the early morning hours of June 26, 2007. Det. Freeman arrived at the TravelCenters of

America (TA) truck stop on North First Street around 2:00 a.m. Ms. Hulbert’s body was

found “in a grassy area at the northeast corner of the parking lot . . . near a fence in [the] back

corner.” Ms. Hulbert was killed by a “gunshot wound to the head.” As part of their

investigation, Sgt. Postiglione and Det. Freeman reviewed surveillance video from the TA

for the night of the murder. The video showed a yellow semi-tractor “that went back to [the]

back area where the body was found.” Det. Freeman testified that the yellow truck was “the

only one during that time frame that didn’t go get gas or . . . you didn’t see a driver walk back

to the business or anything else.”

On July 12, 2007, Det. Freeman went to the TA to review “fuel tickets” from the day

of Ms. Hulbert’s murder. Sgt. Postiglione was on his way to join Det. Freeman at the TA

when he saw a yellow tractor-trailer that “looked similar to . . . the tractor that [he] observed

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on the [surveillance] video.” Sgt. Postiglione testified that “there were a couple of artistic-

type designs on the truck that appeared to be similar to the ones on the video.” Sgt.

Postiglione followed the truck in his unmarked vehicle without activating any emergency

lights or sirens. The truck pulled into the TA parking lot and “went to the same side where

[Ms. Hulbert’s] body was found.” Sgt. Postiglione testified that he parked to the left of the

tractor-trailer. Sgt. Postiglione radioed Det. Freeman to let him know that he had spotted a

truck similar to the one from the surveillance video and that he was “going to approach the

vehicle and speak to the driver.”

Sgt. Postiglione testified that he approached the driver’s side of the truck and noticed

that “the curtains were pulled closed on the driver’s side” and that the engine was running.

Sgt. Postiglione knocked on the door and “waited for a response” but got none. Sgt.

Postiglione knocked a second time, and the Defendant opened the curtains. Sgt. Postiglione

testified that he showed the Defendant his identification and “asked” and “motioned” for the

Defendant to step out of the truck and speak to him. According to Sgt. Postiglione, the

Defendant agreed, “he opened the door[,] and he jumped down.” At some point, Sgt.

Postiglione asked the Defendant for his identification, and the Defendant gave Sgt.

Postiglione his driver’s license. Sgt. Postiglione also asked the Defendant “if he had been

to Nashville before,” and the Defendant stated that the last time he had been in Nashville was

May 2007. Sgt. Postiglione testified that as he spoke to the Defendant he noticed “what

appeared to be several small drops . . . [of] blood” on the interior of the driver’s side door.

However, Sgt. Postiglione could not recall exactly when he noticed the spots on the door of

the truck.

While Sgt. Postiglione was speaking with the Defendant, Det. Freeman arrived and

approached the two. Sgt. Postiglione asked the Defendant if he would consent to give a

DNA sample. The Defendant agreed, and Det. Freeman obtained a consent form from his

vehicle. Det. Freeman reviewed the form with the Defendant, had the defendant sign the

form, and took the DNA samples. Sgt. Postiglione then asked the Defendant if he could look

inside the Defendant’s truck. The Defendant asked if Sgt. Postiglione “was going to tear his

truck up.” Sgt. Postiglione told the Defendant that he would not, and the Defendant “said

go ahead.” Det. Freeman retrieved a consent to search form from his vehicle, and the

Defendant signed the form. Prior to entering the truck, Sgt. Postiglione asked the Defendant

“if there were any firearms in the vehicle, [and the Defendant] said there [were] not.”

Sgt. Postiglione testified that once inside the driver’s compartment of the tractor-

trailer, he noticed “a black knife” and “a roll of black electrical tape.” Sgt. Postiglione then

went “into the rear compartment, the sleeper compartment, and sat down on the bed.” Once

on the bed, Sgt. Postiglione noticed a bag with “some blood” on it behind the driver’s seat.

Sgt. Postiglione testified that he asked the Defendant “if he could explain the blood inside

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the truck,” and the Defendant told Sgt. Postiglione that “he cut his leg getting in and out of

the truck and that’s how the blood got in the back.” Sgt. Postiglione asked the Defendant to

show him the cut. The Defendant “pulled up his pant leg,” but “there was no cut, no scab,

no scar there to be seen.” Sgt. Postiglione testified that he then asked the Defendant “if this

is the truck [they had] been looking for” and that the Defendant “shrugged his shoulders.”

Sgt. Postiglione asked the question again, and the Defendant answered, “if you say it is.”

Sgt. Postiglione “followed that up” by asking if the Defendant was “the person [they had]

been looking for.” The Defendant “shrugged again for a third time and said, ‘If you say so.’”

Sgt. Postiglione then asked the Defendant again if there was a weapon in the truck, and the

Defendant told Sgt. Postiglione that there was a .22 rifle in the truck. The rifle was later

found in the sleeper compartment beneath the bed frame.

After the Defendant told Sgt. Postiglione that he had a rifle in the truck, Det. Freeman

placed the Defendant under arrest, and the Defendant’s truck was impounded to be searched.

Det. Freeman left to get a search warrant for the tractor-trailer. Sgt. Postiglione waited with

the Defendant “for a patrol unit to come and transport” the Defendant to the precinct. Sgt.

Postiglione testified that “it was a very hot day” and that the Defendant “said he was tired

and it was hot, he was a diabetic.” Sgt. Postiglione asked the Defendant if he wanted to sit

in the passenger seat of his car with the air conditioning running, and the Defendant

“accepted.” Sgt. Postiglione testified that his car was not like a patrol car. Sgt. Postiglione

testified that his car was “a very average car.”

The Defendant began talking to Sgt. Postiglione while the two waited in the car. The

Defendant said that he was “pissed off at Ritchie and David, they did the killing” and then

pointed to “[e]xactly” where Ms. Hulbert’s body was found. The Defendant told Sgt.

Postiglione that Ritchie and David “had sex with the victim” before they killed her.

According to Sgt. Postiglione, the Defendant claimed that he “displayed” Ms. Hulbert’s body

“in the parking lot so somebody would find her and solve the case.” Sgt. Postiglione asked

the Defendant if he would be willing to give a formal statement at the police station, and the

Defendant agreed. When the patrol unit arrived, the Defendant was taken “to the hospital

to be checked out to make sure he was medically okay.” A short time later, the Defendant

was released from the hospital and taken to the police station where he again agreed to give

a formal statement.

Sgt. Postiglione testified that he advised the Defendant of his rights pursuant to

Miranda v. Arizona, 384 U.S. 436 (1966), and that the Defendant waived his rights and

agreed to speak to the detectives. A redacted video recording of the Defendant’s statement

was played for the jury at trial. In his statement, the Defendant claimed that he was at a Pilot

truck stop in Nashville when he was approached by David Powell and Ritchie Kiem. The

Defendant claimed that one of the men got in his truck and the other followed him to the TA.

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The Defendant explained in his statement that he left his truck to buy a sandwich at the TA,

and that when he returned to the truck, he found Ms. Hulbert’s naked body “sprawled out in

the back.” The Defendant stated that the victim had a plastic bag taped over her head with

black “electrician’s tape.” The Defendant claimed that Mr. Powell and Mr. Kiem took Ms.

Hulbert’s clothes and personal “affects,” told him that it was his problem and not theirs, and

left. The Defendant told the detectives that he then “proceeded to clean the mess up” and

that he “dumped” the victim’s body “out in plain view.” The Defendant described in detail

how he positioned the victim’s body in the TA parking lot.

The Defendant claimed that Mr. Kiem and Mr. Powell had sex with the victim before

they killed her because “[t]hey were laughing about it.” The Defendant denied that he had

sex with the victim or that any of his DNA would be found on the victim’s body. The

Defendant also told the detectives that he thought Mr. Kiem and Mr. Powell used his rifle

“since they’ve did [sic] it before” and because he did not see either of them with a weapon

before he left his truck. The Defendant went on to claim that Mr. Kiem and Mr. Powell did

“it all the time” and that he did not know how they knew where he was, but that they met him

wherever he went. When asked how he knew Mr. Kiem and Mr. Powell, the Defendant

explained that Mr. Kiem’s mother, Lori Young, rented a home from him “until [he] found

out she was a whore. And [he] spent a year trying to get her out of [his] house and couldn’t

do it until she beat on [his] daughter, [fifteen]-year-old daughter.”

Sgt. Postiglione testified that prior to speaking with the Defendant, he had never heard

of Mr. Kiem or Mr. Powell. Sgt. Postiglione was able to locate the three individuals the

Defendant claimed were responsible for Mr. Hulbert’s murder. Ms. Young and her son, Mr.

Kiem, were found living in Kentucky, and Mr. Powell was located in Indiana. Sgt.

Postiglione testified that during the course of the investigation into Ms. Hulbert’s murder,

he was unable to find “any shred of evidence . . . whatsoever” connecting Ms. Young, Mr.

Kiem, or Mr. Powell to the killing of Ms. Hulbert.

II. Solicitation of Roy Lucas McLaughlin

In April 2008, Sgt. Postiglione and Det. Freeman received a letter from Roy Lucas

McLaughlin. Mr. McLaughlin was an inmate housed in the same area of the CJC as the

Defendant. Based upon information contained in the letter, Sgt. Postiglione and Det.

Freeman interviewed Mr. McLaughlin on April 28, 2008. Det. Freeman testified that at this

meeting, he and Sgt. Postiglione learned that the Defendant had solicited Mr. McLaughlin

to kill Ms. Young, Mr. Kiem, and Mr. Powell.

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A. Mr. McLaughlin’s Initial Conversations with Defendant

Mr. McLaughlin testified that he met the Defendant around April 2, 2008, when he

was moved to the fifth floor of the CJC. Mr. McLaughlin told the jury that while he was

incarcerated, he was known as “C-4” because of his “charges.” Mr. McLaughlin claimed

that he got to know the Defendant after he prevented an attack on the Defendant by several

other inmates. After the incident, the Defendant was referred to as “C-truck” by the other

inmates because Mr. McLaughlin had protected the Defendant. Shortly after that, Mr.

McLaughlin received a letter from the Defendant that was signed “C-truck” and that stated,

“We all need friends, I would enjoy being able to call you a friend, talk to you on the roof.”

Mr. McLaughlin explained that the inmates were taken to the roof for outdoor recreation time

when the weather permitted.

Mr. McLaughlin testified that he played chess with the Defendant and talked to the

Defendant about trucking, fishing, and other “general talk.” Mr. McLaughlin explained that

the inmates could talk to each other through the air vents. Each inmate also received one

hour outside of his cell to “make phone calls, get a shower,” and do whatever the inmate

needed to do. During that hour an inmate could talk to the other inmates in his cell block by

going up to their cell doors. Mr. McLaughlin stated that he had “quite a few chances” to talk

to the Defendant while they were on the fifth floor. Mr. McLaughlin testified that he and the

Defendant talked about their charges and that the Defendant eventually asked him if he had

ever “blown anything up.” The Defendant then asked Mr. McLaughlin if he “knew any

truckers that might . . . be willing to help him out with an alibi.” Mr. McLaughlin testified

that he talked “extensively” with the Defendant about finding the Defendant an alibi.

Mr. McLaughlin testified that he eventually asked the Defendant why he needed an

alibi so badly. According to Mr. McLaughlin, the Defendant told him that Ms. Young “was

trying to frame him [and] planting evidence.” Mr. McLaughlin recalled that at some point,

the Defendant sent him a letter asking what his “charges” were and if he had been involved

in killing another inmate’s brother in an explosion. Mr. McLaughlin testified that the

Defendant eventually asked him “[h]ow much C-4 would it take to blow up a trailer.” Mr.

McLaughlin laughed and told the Defendant “not much.” Mr. McLaughlin testified that they

did not talk about it anymore that day, but the next day when they were on the roof the

Defendant told Mr. McLaughlin that Ms. Young, Mr. Kiem, and Mr. Powell were attempting

to frame him for Ms. Hulbert’s murder. According to Mr. McLaughlin, the Defendant asked

him “what it would take to get rid of them.” Mr. McLaughlin testified that he went along

with the Defendant because he had a reputation in the jail as a “bomber hit man.” Mr.

McLaughlin further testified that he and the Defendant talked about killing Ms. Young the

same way Ms. Hulbert had been killed to “draw attention away from that.” The two also

talked about blowing up Mr. Kiem and Mr. Powell’s truck.

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Mr. McLaughlin testified that he recalled having three or four conversations with the

Defendant about killing Ms. Young, Mr. Kiem, and Mr. Powell before he contacted the

police. Mr. McLaughlin further testified that the Defendant told him their names, their

addresses, “where they hung out, where they worked, [and] what they drove.” According to

Mr. McLaughlin, the Defendant gave him information about what Ms. Young and Mr.

Powell looked like, but the Defendant told Mr. McLaughlin that he could not remember what

Mr. Kiem looked like because “it had been so long since he had seen him.” Mr. McLaughlin

testified that he could not remember any of the details of what the Defendant had told him,

but that he wrote it down at the time. Mr. McLaughlin also claimed that the Defendant wrote

him a letter in which the Defendant offered to give him “a truck” in exchange for killing the

victims. Mr. McLaughlin testified that he came up with the idea that the Defendant would

pay him $15,000 by working it off at his uncle’s trucking company. Mr. McLaughlin

claimed that the Defendant’s letter was taken from his cell by the deputies guarding him.

According to Mr. McLaughlin, he decided to contact the police about his

conversations with the Defendant because he “thought [he] was getting set up.” Mr.

McLaughlin wrote to Sgt. Postiglione and Det. Freeman because the Defendant “had

mentioned that they were hounding him pretty hard.” Mr. McLaughlin testified that after he

sent the letter, he had a “couple” more conversations with the Defendant about killing the

victims. According to Mr. McLaughlin, he and the Defendant discussed “the best way to do

it,” when to kill the victims, and how to make sure “there was no connection between [the

Defendant] and [Mr. McLaughlin].” Mr. McLaughlin testified that he wrote some of this

information down because he did not have “too good of a memory.” Mr. McLaughlin stated

that he brought what he had written down to his meeting with Sgt. Postiglione and Det.

Freeman on April 28, 2008. At that meeting, Mr. McLaughlin was asked if he would wear

a recording device the next time he and the Defendant were sent to the roof for recreation

time.

Mr. McLaughlin testified that he told the detectives he would consider wearing a

“wire.” Mr. McLaughlin explained that he was “nervous” to wear a wire because it was “not

too awful good” to be known as a “snitch” inside the jail. However, Mr. McLaughlin met

with the detectives again the next day and agreed to wear a recording device the next time

he and the Defendant were on the roof. Mr. McLaughlin testified that the police and the

district attorney’s office did not offer him “anything in exchange” for wearing a wire. Mr.

McLaughlin met again with the detectives on May 1, 2012. On that day, Mr. McLaughlin

was shown how to work the recording equipment and instructed not to ask the Defendant any

questions about the Defendant’s “pending case.” Instead, the purpose of the wire was to gain

information on the Defendant’s alleged solicitation of first degree premeditated murder.

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B. May 2, 2008 Wire Recording

On May 2, 2008, Mr. McLaughlin was scheduled to go to the roof with the Defendant

for recreation time. Mr. McLaughlin had a broken wrist at that time, and this was used to

explain why Mr. McLaughlin was taken from his cell. A redacted version of the wire

recording was played for the jury at trial. In the recording, Mr. McLaughlin complained to

the Defendant that a guard had ransacked his cell. Mr. McLaughlin told the Defendant that

if he were not incarcerated he would “rig [the guard’s] car up man, boom.” The Defendant

then informed Mr. McLaughlin that his lawyers had informed him that there was “a snitch”

in the jail and to keep his “mouth shut.”

Mr. McLaughlin told the Defendant that “like [they] were talking about” earlier, he

was “trying to think of people [he] already [knew]” to help the Defendant with an alibi. Mr.

McLaughlin then asked the Defendant where he needed an alibi witness to say they saw the

Defendant. The Defendant responded that he “would need them at the TA [to] say [they]

heard [him] tell the q---r [(Sgt. Postiglione)] no to the search, is what [he] need[ed].” Mr.

McLaughlin informed the Defendant that he was “still working on that.” Mr. McLaughlin

then asked the Defendant if “this right here is [Ms. Young’s] correct address.” The

Defendant responded that it was “[f]or now.” The following exchange then occurred:

[Mr. McLaughlin]: What uh, but, here’s my thing, I told you, you know, I’d

help you -

[The Defendant]: But yeah.

[Mr. McLaughlin]: When you get out?

[The Defendant]: Yeah.

[Mr. McLaughlin]: I want you to look at me, just don’t f--k me over.

[The Defendant]: I don’t f--k people over.

[Mr. McLaughlin]: I, but we cool, I just, I want to get that up front.

[The Defendant]: I don’t kill people either.

[Mr. McLaughlin]: Well, yeah, I don’t technically kill people, but I mean, my

– well, my thing is, look. I’m not going to sit here you know if I - -

[The Defendant]: I’m just saying.

[Mr. McLaughlin]: Let me think of how to phrase this.

[The Defendant]: I would owe you dramatically.

[Mr. McLaughlin]: Right, well my thing is, [Ms. Young] goes away, you

know.

[The Defendant]: Yeah.

[Mr. McLaughlin]: My preferred, hell, I’ll blow a b---h up, I don’t give a f--k.

But my thing is, hang on a second . . . . Hell, here’s my thing. That right there

is eliminated and nobody testifies against you then and you come out [and]

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drive a truck? You got to hook up with me because that’s how, you know,

we’ll work it, work it off like that.

[The Defendant]: Nobody else will hire me.

[Mr. McLaughlin]: Look, man this s--t look, you man, you acquitted on s--t

like this, man you ain’t got to worry about s--t.

[The Defendant]: I’m just saying, nobody else will hire me because that.

[Mr. McLaughlin]: That cloud.

[The Defendant]: Yeah.

Mr. McLaughlin then told the Defendant how he was “planning everything” and

assured the Defendant that as long as Ms. Young lived at the address the Defendant had

provided him, he would kill her. Mr. McLaughlin asked the Defendant where Ms. Young

worked. The Defendant responded that he did not know because Ms. Young was “a hooker.”

Mr. McLaughlin told the Defendant to get “against the wall” because he did not want “too

many people listening.” Mr. McLaughlin told the Defendant that “hypothetically” the rumors

that Mr. McLaughlin had killed another inmate’s brother were true. The following exchange

then occurred:

[Mr. McLaughlin]: Alright, hypothetically, you know, I ain’t going to admit

to s--t well, I mean, I don’t give a f--k. I like to know people’s patterns.

Where they go, where they go shopping, that way s--t looks like [an] accident

man. You know, if motherf--kers found, you know, if. Alright. Say you go

to the gym at four o’clock everyday when you get off work.

[The Defendant]: Mmm-hmm.

[Mr. McLaughlin]: You know and it’s on 100th street, alright, but you are

found on 500th street. You are not in your normal area. See what I’m saying?

[The Defendant]: Yeah.

[Mr. McLaughlin]: I want s--t to look like it’s, I want the detective to look at

s--t when he finds a body and go, well they got robbed, you know. Normal

everyday thing, they’re going where they go. Alright, that’s how I take care

of my s--t. You know that’s why I ain’t been linked up. F--k that s--t.

[The Defendant]: Her normal everyday is Monday through Friday truck stop

whore.

[Mr. McLaughlin]: You know what truck stop?

[The Defendant]: Any that she can get to.

[Mr. McLaughlin]: She run a CB?

[The Defendant]: Yeah.

[Mr. McLaughlin]: What’s her handle?

[The Defendant]: Uh, Spoiled Brat.

[Mr. McLaughlin]: Spoiled Brat?

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[The Defendant]: Yeah.

[Mr. McLaughlin]: So if I can get up on there and you know make spo - -

[The Defendant]: If you hollar [sic] for her it’s going to tip her off.

[Mr. McLaughlin]: Well how the f--k?

[The Defendant]: And she’ll hide. She’s smart. How do you think she got me

set up?

[Mr. McLaughlin]: Well how the hell do you think I’m going to, dude, how

can I find her then if she don’t live there? ‘Cause dude, I ain’t going to do my

s--t like that. Hell, I’ll just blow, [does] she live in a trailer?

[The Defendant]: Yeah, trailer park.

[Mr. McLaughlin]: Oh, a trailer park.

Mr. McLaughlin then asked the Defendant what kind of car Ms. Young drove. The

Defendant responded that she drove a Dodge or a Plymouth. Mr. McLaughlin asked again

if Ms. Young lived in a trailer park, and the Defendant responded, “Yeah, it’s a trailer park.”

The Defendant then told Mr. McLaughlin that Ms. Young was framing him for Ms. Hulbert’s

murder. The Defendant claimed that he saw Ms. Young “one night when this supposedly

person got killed,” but that her son, Mr. Kiem, was “alibiing her” and that was what was “f--

king” the Defendant. Mr. McLaughlin asked the Defendant for more information about Mr.

Kiem. The Defendant told Mr. McLaughlin that Mr. Kiem lived with Ms. Young and that

he had “a baby and a girlfriend and she, she hooks too.” The two men then engaged in the

following exchange:

[Mr. McLaughlin]: Alright, here’s the, here’s the trip. Let’s make it look like

a gas leak. I’ll blow the whole f--king house up. It’s a gas leak.

[The Defendant]: Whatever. You know that’s your, that’s your thing.

[Mr. McLaughlin]: Yeah, I mean I don’t. I’ll do what, I, what I’m good at.

You just, you know you don’t even have to worry about it. After court, after

your trial?

[The Defendant]: Yeah.

[Mr. McLaughlin]: We settle up. We do our thing.

[The Defendant]: How, how can we settle up? I, I - -

[Mr. McLaughlin]: You come work. You just pay it, you just pay it off.

[The Defendant]: Okay.

[Mr. McLaughlin]: Alright, you know, like you, like you said you was.

...

[Mr. McLaughlin]: Alright, well here’s the deal. I’ll take care of that little

issue, when you come out, you drive a truck and, you know, we’ll do like a ten

percent or something for a couple of months.

[The Defendant]: Alright.

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[Mr. McLaughlin]: You know, you know how much you can make on a hot

load and s--t. Like, if you, if you running streamline, you know, state, state,

state?

[The Defendant]: Yeah.

[Mr. McLaughlin]: Twelve, fourteen hundred dollars a week. You know, until

I say, I, I get five grand, then you, you kill my ten percent. You ain’t got to

pay that. Like I said –

[The Defendant]: Whatever you say.

[Mr. McLaughlin]: We’re truckers. I got you bro.

Later, Mr. McLaughlin told the Defendant that he “was a hit man” and that he blew

“people up.” Mr. McLaughlin told the Defendant that he would give him “an update later”

after he found “out some more stuff.” Mr. McLaughlin asked the Defendant to keep what

they had “just talked about” between themselves. The Defendant responded that “[i]t stays.”

Mr. McLaughlin then asked how the Defendant managed to “piss off” Ms. Young. The

Defendant claimed that Ms. Young thought he was “in love with her.” Mr. McLaughlin

responded that the Defendant would not have “to worry about her. I got her.” Mr.

McLaughlin then approached another inmate, identified as “L-Hood,” and the two proceeded

to discuss how Mr. McLaughlin, once he was released from jail, would kill two witnesses for

L-Hood. Mr. McLaughlin told L-Hood that he would kill both witnesses for $10,000, “two

for one.” Mr. McLaughlin described himself to L-Hood as “a psycho motherf--ker [who]

blows people up” and upon his release would be “giving out hell.” Mr. McLaughlin told L-

Hood that he had “earned” his nickname, C-4, and that it would only “take four ounces of

C-4” to kill the witnesses. Mr. McLaughlin then went back and continued his conversation

with the Defendant until they were returned to their cells.

At trial, Mr. McLaughlin testified that while he was incarcerated “a rumor had been

started” that he had killed another inmate’s brother. Mr. McLaughlin explained that he

“[k]ind of went with it” regarding the rumors that he had killed someone because there was

“no way you can get rid of a reputation in jail.” Mr. McLaughlin denied telling other inmates

that he had previously killed people. Instead, Mr. McLaughlin insisted that when another

inmate would ask him if he “could kill witnesses,” he would “just let that ride and stay[] with

the program so to speak.” Mr. McLaughlin testified that he never attempted to challenge the

impression that he was a “hit man” because “[t]he less information that you give about

yourself in jail, the better.” However, Mr. McLaughlin denied that he had lied to his fellow

inmates about whether or not he was a killer.

According to Mr. McLaughlin, L-Hood “believed” the rumors about him being a hit

man. Mr. McLaughlin claimed to have been surprised by L-Hood’s approaching him that

day and requesting that he kill two witnesses. However, Mr. McLaughlin later clarified that

-11-

the two had previously discussed the matter “the night before and a couple of days before in

the cells.” According to Mr. McLaughlin, he was surprised by L-Hood’s request because the

two had only previously discussed Mr. McLaughlin’s providing explosives and building an

explosive device for L-Hood. Mr. McLaughlin denied approaching L-Hood and discussing

the “hit” so that he “could get some extra help from the detectives.”

C. May 16, 2008 Wire Recording

Mr. Kiem and Mr. Powell’s names were never mentioned in the May 2, 2008

recording. After listening to the recording, Sgt. Postiglione and Det. Freeman decided to

have Mr. McLaughlin wear a body wire a second time in order to get “more detail.” Det.

Freeman testified that given the difficulty of coordinating a wire operation in jail, it would

ideally only be attempted once. However, Mr. McLaughlin “was talking too much” on the

May 2, 2008 recording. Det. Freeman testified that they wanted Mr. McLaughlin to wear a

wire a second time so that it would be clearer who the Defendant wanted killed and how the

Defendant would pay Mr. McLaughlin. Det. Freeman explained that on the May 2, 2008

recording, “things were talked about [without using] full names or anything like that.”

Instead, Mr. McLaughlin and the Defendant’s conversation showed that they knew “what

each other were talking about” based upon previous conversations, but “somebody listening

to it wouldn’t understand all of it.” Mr. McLaughlin agreed to wear a wire for a second time

on May 16, 2008.

A redacted version of the wire recording was played for the jury at trial. After some

small talk, Mr. McLaughlin told the Defendant that he was worried about what would happen

“[i]f they start correlating this s--t after [he] [got] out.” Mr. McLaughlin stated that he did

not think that the Defendant would turn him in to the police, but that he wanted to “just go

ahead” and “iron everything out.” The following exchange then occurred:

[Mr. McLaughlin]: Who, you know, I’ve done my, my homework. I ain’t

gonna walk into s--t blind. But, who the hell is David [Powell]? What’s,

what’s his whole connection? I mean, if I’m gonna, if I’m gonna pop his ass,

I need to know why. I mean, what did he, who is he to you though?

[The Defendant]: Nobody. He’s a friend of uh . . .

[Mr. McLaughlin]: Alright. Whoa, whoa, whoa.

[The Defendant]: . . . Richie [Kiem] and Lori [Young].

[Mr. McLaughlin]: Oh, okay. ‘Cause I’m sitting here going, alright, well he’s

on the list, you know, you know, I’m gonna make his ass go bye bye, I kinda,

you need, need . . .

-12-

[The Defendant]: And he, uh, he’s living with [Ms. Young’s] daughter. Um,

‘cause, and her daughter is a hooker too, that goes to the three truck stops up

there in Anderson.

[Mr. McLaughlin]: Alright. Well, do you think all them together is really that

big of a threat though?

[The Defendant]: Could be.

[Mr. McLaughlin]: Alright. Well, like we discussed, hang on . . .

....

[Mr. McLaughlin]: But uh, sorry, I just don’t like talking around people. You

know how I am.

[The Defendant]: Yeah.

[Mr. McLaughlin]: But uh, so, they, they could be that big of a threat?

[The Defendant]: Yeah, it’s possible.

[Mr. McLaughlin]: Alright. Like we talked in my cell the other day, as far as

uh, uh, what’s her name? Um, [Ms. Young] and that little ordeal with her

pick-up truck?

[The Defendant]: Um-hmm?

[Mr. McLaughlin]: I thought about it, and I’m just gonna do it how I’m gonna

do it. It’s a gas leak in the trailer, and everybody blows up. I’m happy.

You’re happy. And my part’s done with it. Uh, you know, my thing, I was,

I wanted to, you know, I got the [Ms. Young] thing down, I just wanted to

know who the [Mr. Powell] guy was and if, if he was that big of a threat, that

you know, one thing I don’t like doing is innocent bystanders.

[The Defendant]: Um-hmm.

[Mr. McLaughlin]: I don’t, I don’t want to kill an innocent bystander. You

know. But, like you said, if they that big of a threat, f--k it. What’s one more

explosion?

[The Defendant]: Yep.

[Mr. McLaughlin]: Oh, me. Oh, so.

The Defendant then told Mr. McLaughlin about a “hawk” he saw on the roof “the

other day.” After discussing the hawk, Mr. McLaughlin went on to clarify how the

Defendant would pay him for the murders. The following exchange occurred:

[Mr. McLaughlin]: Seeing as how the truck thing is kinda wishy-washy, we

still, we still on for what we discussed about, you know, I was just fixing to

say . . . . But um, we still on, and you pay me back? You know . . .

[The Defendant]: Yep.

[Mr. McLaughlin]: . . . Later. Alright. Now as far as a price now, I don’t want

you to, you know, or a fee, how about that? I’m thinking like roughly fifteen,

-13-

fifteen thousand. And that’s for the whole thing, everybody. And you go

about your merry day. No witnesses show up for you. But, I mean, I ain’t

gonna [be] coming up here visiting you or nothing. “Hey boo, took care of

that s--t.”

[The Defendant]: Ah, naw.

[Mr. McLaughlin]: I’ll send, I’ll send ya a big old billboard, how about that.

[The Defendant]: No connections.

[Mr. McLaughlin]: Yeah. That’s, that’s my thing, I don’t want no connections.

[The Defendant]: Just the number to your uncle’s trucking company.

[Mr. McLaughlin]: Alright. And you, you still need those alibis right?

[The Defendant]: Um-hmm.

[Mr. McLaughlin]: Alright. I got them set up for you. So, I got that

information you wrote me down.

[The Defendant]: Um-hmm.

[Mr. McLaughlin]: Where they were supposed to see you and everything.

[The Defendant]: Right.

[Mr. McLaughlin]: So, so that’s good. Ah, now, you know I’m not new to

this. So, I’m gonna ask you something that I’ve had to ask a couple of other

people. I ain’t gonna do this, then you gonna wind up having remorse, or a

guilty conscience or whatever.

[The Defendant]: Like I said, you do your thing (inaduible).

[Mr. McLaughlin]: Alright.

[The Defendant]: (Inaudible) it’s not mine.

[Mr. McLaughlin]: Then I’ll do it how I do it. Uh, so.

[The Defendant]: And I don’t want to know. You know.

[Mr. McLaughlin]: Ah, plausible deniability with you?

[The Defendant]: Sure. The less I know, the better it is for you.

[Mr. McLaughlin]: How is it less . . . come over here, man.

[The Defendant]: ‘Cause if they connected us I could say no, no that’s bulls--t.

[Mr. McLaughlin]: Well, I, I, I see what you’re saying. Uh, on a serious note,

there’s, there’s, this right here is how it’ll backfire. Okay?

[The Defendant]: Um-hmm.

[Mr. McLaughlin]: Ah, they’re gonna testify against you, I’m gonna go ahead

and kill them, just cut to the chase. You get nervous later on, and you get, I’m

just listen to me, alright? You get nervous later on and give me up, there

gonna be a world of s--t. That’s, that’s how shit gets f--ked up.

[The Defendant]: Alright.

[Mr. McLaughlin]: Alright. Um.

[The Defendant]: Like I said, after today, we don’t talk at all.

[Mr. McLaughlin]: Well, that’s, that’s why I want to get all this ironed out.

-14-

[The Defendant]: Yeah.

[Mr. McLaughlin]: Because, um, we can’t, you know. I mean, walking around

up here, yeah. It don’t look too bad. Cause well, we’re white.

[The Defendant]: Right.

[Mr. McLaughlin]: I mean, you get my point on that one.

[The Defendant]: Yeah.

[Mr. McLaughlin]: Uh, you know, everybody usually sticks to their own up

here. But, that’s why I want to get all of this ironed out today, you know?

‘Cause are they gonna be at separate spots or do they all live together in the

house, I mean, you know. If, if I blow up the trailer, and take out [Ms. Young]

and her son, I don’t know his name.

[The Defendant]: Ritchie [Kiem].

[Mr. McLaughlin]: Oh, [Mr. Kiem], okay. If I go ahead and take them two

out, does [Mr. Powell] live there too? Or . . .

[The Defendant]: Nope.

[Mr. McLaughlin]: Okay.

[The Defendant]: He lives in Anderson, Indiana on Drexel Street.

[Mr. McLaughlin]: On Drexel. Okay. Then what I’ll do, and you said he’s

with her daughter.

[The Defendant]: Right.

[Mr. McLaughlin]: Alright. Does she need to go?

[The Defendant]: Not really, no.

[Mr. McLaughlin]: Alright. So she can’t hurt you.

[The Defendant]: No.

[Mr. McLaughlin]: So, [the] only one’s that’s gonna can hurt you by testifying

[are] . . . [Ms. Young], [Mr. Powell], and um, . . .

[The Defendant]: Her son.

[Mr. McLaughlin]: . . . that [Mr. Kiem] boy.

[The Defendant]: Yep.

[Mr. McLaughlin]: Alright. Those are the only three that can hurt you.

[The Defendant]: Yep.

[Mr. McLaughlin]: Well, guess what, they ain’t gonna hurt you. You know?

I, I, thought a little bit. Uh, you know how I sit there and I’ll ponder different

directions, you know . . .

[The Defendant]: Um-huh.

[Mr. McLaughlin]: . . . look into different options. Uh, I say you’re gonna owe

me fifteen grand, which is f--king cheap. Uh, I mean, it’s f--king . . . you

heard rumors flying around here about how much I got paid for doing little

dude’s brother.

[The Defendant]: No. No. And I don’t even want to know.

-15-

[Mr. McLaughlin]: Yeah, yeah. Let’s not get into my prior cases. I don’t need

nobody going to the police and being like, “Hey you remember this case, well

guess what?” So, I mean, I [doubt] you’ll do that. But uh, fifteen grand, I kill

all three. After that, you don’t know me until you come out, then you just call

that phone number, talk to my uncle. My uncle will get you in touch with me.

But other than that, we don’t know each other.

[The Defendant]: Alright.

[Mr. McLaughlin]: Is that a deal?

[The Defendant]: Yeah.

[Mr. McLaughlin]: Alright. So, everything. I mean, you know, I didn’t want

to turn your words around, but I mean, based on what all you told me and the

conversations we’ve had . . .

[The Defendant]: Um-hum.

[Mr. McLaughlin]: . . . that’s how it stands. We straight?

[The Defendant]: Yep.

Mr. McLaughlin asked the Defendant if there was “anything else [he] need[ed] to look

into.” The Defendant responded that he had “no idea.” Mr. McLaughlin asked again if there

was anyone else he had to “worry about,” and the Defendant responded that there was no one

else as far as he knew. Mr. McLaughlin then asked the Defendant to give him Ms. Young’s

full name and the type of car she drove. The Defendant provided this information to Mr.

McLaughlin. Mr. McLaughlin asked the Defendant that if he saw “a b---h driving a Ford

Ranger” pull up to “the trailer,” could he “hit it that day,” could he “blow [it] up and [] know

[he] got the right one.” The Defendant responded, “Right.” A short time later, the following

exchange occurred:

[Mr. McLaughlin]: So, but uh, who’s the new guy that you just said? What’s

....

[The Defendant]: David Powell?

[Mr. McLaughlin]: No, I’ve already got [Mr. Powell’s]. You already gave me

that information. I got it in a . . .

[The Defendant]: Uh, Ritchie [Kiem]?

[Mr. McLaughlin]: Yeah. Alright. How, how old, how old is . . . oh, that’s,

that’s her son?

[The Defendant]: Yeah.

[Mr. McLaughlin]: Well, hold on. Whoa. Is he a minor?

[The Defendant]: The same age as uh, well, hell no.

[Mr. McLaughlin]: Uh, uh, well dude, I just . . .

[The Defendant]: Same age as David Powell.

-16-

[Mr. McLaughlin]: I look at it like this man, if you live with your momma,

your ass better be under eighteen. You know, ‘cause, if you’re over eighteen,

you outta be out on your damn own. That’s just how I look at it.

[The Defendant]: Yah. But, how can you do crime and not have your momma

to alibi ya?

[Mr. McLaughlin]: Actually, I guess that’s a damn good alibi, cause you know

she ain’t gonna turn on ya.

[The Defendant]: Yeah.

[Mr. McLaughlin]: So, alright, well, we straight up. Those are the three that

die. Fifteen thousand, and you don’t know me.

[The Defendant]: I don’t know you.

[Mr. McLaughlin]: I like that. I like that.

[The Defendant]: Leave that there number when you get ready to leave.

[Mr. McLaughlin]: Do what?

[The Defendant]: Your uncle’s number.

The two men then discussed Mr. McLaughlin’s broken wrist for several minutes

before Mr. McLaughlin asked the Defendant if “there [was] any particular way” the

Defendant “would like for these services to be carried out.” The Defendant responded “no,”

and agreed with Mr. McLaughlin’s statement “[j]ust as long as they don’t show up for court.”

Mr. McLaughlin told the Defendant that he was “getting paid to provide a service” and that

he “just want[ed] to make sure everybody’s happy with it.” Mr. McLaughlin told the

Defendant to remember “[p]lausible deniability” and that the Defendant did not know Mr.

McLaughlin. The Defendant responded that he “just met [Mr. McLaughlin] up here. That’s

it. Walked around talking trucking.”

The two men then spent several minutes discussing other prisoners before the

following exchange occurred:

[Mr. McLaughlin]: You let me take care of that. You, you.

[The Defendant]: You know they’re not gonna say, “Yeah, yeah, we’ll cut you

loose.”

[Mr. McLaughlin]: Hey, I don’t give a s--t. Hey, all I know is you hired my

services. Those people ain’t gonna show, you going home. If that’s your

goal? You know, don’t worry about.

[The Defendant]: Going home’s my goal.

The Defendant then changed the subject and began talking about a beam above them on the

recreation area’s roof. After discussing how the beam was attached to the building, the two

men talked about the weather, a prisoner who had a heart attack, and other various topics.

-17-

A short time later, Mr. McLaughlin told the Defendant “no more talk” and assured the

Defendant that he had the victims “taken care of.” The Defendant urged Mr. McLaughlin

not to forget to give him the phone number for Mr. McLaughlin’s uncle because the

Defendant did not want Mr. McLaughlin to get out and forget about him. Mr. McLaughlin

again assured the Defendant that he would give the Defendant his uncle’s phone number and

that he would not forget the Defendant. Mr. McLaughlin stated that he would “do what I do”

and “kill these three and that’s it.” Mr. McLaughlin asked the Defendant not to “lay [him]

out there,” and the Defendant stated that he would not.

At the conclusion of the recreation hour, the two men were placed back in their cells.

A short time later, the Defendant was allowed out of his cell for his hour of personal time.

As the Defendant walked around the cell block, Mr. McLaughlin asked the Defendant to

come to his cell door. Mr. McLaughlin then asked the Defendant for more details about Mr.

Powell. The Defendant spelled Mr. Powell’s name for Mr. McLaughlin and provided Mr.

McLaughlin with Mr. Powell’s street address. Mr. McLaughlin asked the Defendant for

more information about Mr. Kiem. The Defendant stated that Mr. Kiem lived with Ms.

Young, told Mr. McLaughlin how old Mr. Kiem was, and spelled Mr. Kiem’s name for Mr.

McLaughlin. Mr. McLaughlin asked the Defendant for a description of Mr. Kiem, but the

Defendant stated that he had not “seen him in years.” However, the Defendant made several

disparaging remarks about Mr. Kiem’s intelligence and told Mr. McLaughlin that Mr. Kiem

went “to school” and was picked up by a “[s]chool bus” for “like [] GED classes.” The

Defendant also told Mr. McLaughlin what color Mr. Kiem’s hair was and that he thought Mr.

Kiem had a beard.

Mr. McLaughlin then told the Defendant that he would make Ms. Young’s murder

“look like a copy cat.” Mr. McLaughlin explained that “if it happens the same way” and the

Defendant was in jail, then he would have “a damn good alibi.” The following exchange

then occurred as Mr. McLaughlin further explained his reasoning to the Defendant:

[Mr. McLaughlin]: That if uh, if I took and made it look like your s--t, then,

you know, your lawyers will have something to go on. Like hey, listen, this

other s--t happened to another woman at a truck stop. And you know, the

same way, and you know, so, and it couldn’t have been him, ‘cause he was in

here. You know, it don’t matter whether she was a witness against you or not.

You see what I’m saying?

[The Defendant]: Um-hmm.

[Mr. McLaughlin]: But if I go, like we talked about while ago. I go to blowing

s--t up? ‘Cause you know me, I love that s--t. I’ll make that s--t be seen from

the f--king space, astronauts up there at the U.S. space station go damn, say

“What the hell’s that?” I mean, ‘cause I’m gonna make it go boom, motherf--

-18-

ker. But, what I would rather do is, if I’m gonna do this for you, I’d rather do

her, because she is a female, I’d rather do her at a truck stop like that. Okay?

And then, I can take, I can take and put a bullet you know, I can take a Barrett

fifty cal, two miles away and take care of the other motherf--kers. You know.

But I was just thinking with her, make it look like the previous s--t. You know

what I mean?

[The Defendant]: Right.

[Mr. McLaughlin]: But, I mean, I wanted to get your approval on that before

I done anything. I didn’t want that, ‘cause I didn’t want you to hear about it

and all of a sudden you freak out. You see, yeah, you’re laughing, but you see

what I mean.

[The Defendant]: Oh yeah.

[Mr. McLaughlin]: I mean, what would you think if all of a sudden you heard

that, you know, that the witness you asked me to take care of, was killed like

these you’d flip man.

[The Defendant]: I don’t, huh?

[Mr. McLaughlin]: Exactly. You would have flipped your lid dude.

[The Defendant]: Still will anyway.

[Mr. McLaughlin]: Well, I mean, is that cool? You want me to, you want me

to do it like that?

[The Defendant]: However.

[Mr. McLaughlin]: Alright. Done.

[The Defendnat]: Okay.

Mr. McLaughlin told the Defendant that he thought the Defendant would be out “in

a year” thanks to the fact that the Defendant’s “witnesses” would be gone and the alibis he

would provide the Defendant. Mr. McLaughlin told the Defendant that he wanted to make

sure they were “copasetic” because he did not want the Defendant to “start freaking out.”

The Defendant assured Mr. McLaughlin that he did not “freak out.” Mr. McLaughlin then

asked the Defendant if Ms. Young would be carrying a weapon. The Defendant stated that

he had “no clue” but warned Mr. McLaughlin that Ms. Young “changes . . . like a

chameleon.” The recording concluded with Mr. McLaughlin and the Defendant playing

several games of chess.

In addition to the audio recordings, portions of the conversations were video taped and

those videos were shown for the jury. Sgt. Postiglione testified at trial that they could not

record video of the entire conversation because there was a chance the inmates might see the

camera and the videographer. Mr. McLaughlin admitted that while he told the Defendant in

both recordings that he would be leaving on May 27, 2008, he knew that was not true. Mr.

McLaughlin was not released until he pled guilty on August 14, 2008. However, Mr.

-19-

McLaughlin was removed from the CJC after the Defendant’s attorneys were informed about

the body wire recordings. Mr. McLaughlin also admitted that on the May 16, 2008

recording, he was the first person to bring up the topic of killing the victims. Mr.

McLaughlin also acknowledged that at times during the recording the Defendant seemed

“distracted” and would change the subject. However, Mr. McLaughlin claimed that the

Defendant did this “because another inmate was walking by [them].”

D. Impeachment Evidence Regarding Mr. McLaughlin

Mr. McLaughlin testified that while he was incarcerated with the Defendant, he had

charges for four Class B felonies and one Class C felony pending against him. Mr.

McLaughlin explained that he had been arrested “for having explosive components, gun

powder and stuff of that nature.” Mr. McLaughlin was also facing a Class D felony for

passing a worthless check. Mr. McLaughlin subsequently pled guilty to one count of

possessing a “prohibited weapon” and one count of passing a worthless check. Mr.

McLaughlin received eight years on probation as part of his guilty plea. Mr. McLaughlin

testified that he was also on probation for a separate conviction of theft. After Mr.

McLaughlin was released, a probation violation warrant was filed against him because he

failed to report to his probation officer. Mr. McLaughlin’s probation was ultimately

reinstated. Mr. McLaughlin denied that there was a current probation violation warrant

pending against him. Mr. McLaughlin admitted that all together he had four felony

convictions and four misdemeanor convictions. Mr. McLaughlin also admitted that he had

written “some bad checks in Arkansas” in 2006. Mr. McLaughlin further admitted that he

was “moved around” the CJC because he had gotten into fights and had possessed

contraband.

On cross-examination, Mr. McLaughlin contradicted his earlier testimony and the

information on the wire recordings. Mr. McLaughlin stated that before he met with the

detectives, the Defendant had asked about killing Ms. Young “specifically and vaguely about

two other people but [he] didn’t . . . [have] their names at that time.” Mr. McLaughlin also

testified on cross-examination that the Defendant only asked him to kill the victims after he

told the Defendant that he could not get any alibi witnesses for the Defendant. Mr.

McLaughlin testified that he could not remember when he told the Defendant that. However,

the May 16, 2008 wire recording clearly belied this statement because Mr. McLaughlin told

the Defendant that he had alibis ready for the Defendant.

Mr. McLaughlin denied that his cooperation in this case was a part of the plea deal

he received for his pending cases. Mr. McLaughlin admitted that in January 2008 he had

accepted a plea agreement in which he would be required to serve an eight-year prison

sentence. However, Mr. McLaughlin backed out of that agreement in February 2008. Mr.

-20-

McLaughlin also noted that he participated in the wire recordings three months before he

accepted a plea agreement with an eight-year sentence to be served on probation. Mr.

McLaughlin insisted that he did not need the detectives’ help with his “charges.” Mr.

McLaughlin also insisted at trial that he had testified truthfully.

Mr. McLaughlin admitted on cross-examination that in phone conversations with his

family, he had stated that he “didn’t want to be screwed over by the police yet again.” Mr.

McLaughlin also admitted that he said that he knew the police could not promise him

“anything up front,” but that he trusted that they would “help [him] out.” Mr. McLaughlin

further admitted that he told his family that if the police would not “help” him then he was

“going to blow the whole deal for them.” However, Mr. McLaughlin insisted that when he

referred to the police helping him out, he meant that the police would move him “if anything

went wrong,” and not that they would help him out with his charges. Mr. McLaughlin

insisted that he only wanted the police to protect him if he was “found out” by the other

inmates.

Dan Hamm testified that he was the Assistant District Attorney General who handled

Mr. McLaughlin’s cases. General Hamm testified that he was aware that Mr. McLaughlin

had cooperated in this case, but that he did not know what information Mr. McLaughlin had

provided in this case and that Mr. McLaughlin’s cooperation in this case did not factor into

the plea agreement. General Hamm testified that he had already reached an agreement with

Mr. McLaughlin’s attorney before he found out about Mr. McLaughlin’s cooperation in this

case.

The State also recalled Det. Freeman following Mr. McLaughlin’s testimony. Det.

Freeman testified that Mr. McLaughlin was never offered anything in “exchange for wearing

the wires” or to testify at trial. Det. Freeman also testified that he “corroborated” the

information Mr. McLaughlin had given him “prior to going forward with the body wires.”

On cross-examination, Det. Freeman admitted that he did not remember if, during their first

meeting, Mr. McLaughlin mentioned the Defendant’s wanting to kill anyone besides Ms.

Young. Det. Freeman also admitted that Mr. McLaughlin agreed to wear a body wire at their

first meeting on April 28, 2008, and that Mr. McLaughlin did not say he needed time to think

about it. Det. Freeman further admitted that none of the papers Mr. McLaughlin gave him

“contained any information about an alleged solicitation to commit murder.”

Mr. McLaughlin told Det. Freeman that he had other “documentation” in his cell, but

he never produced those documents to the detectives. Det. Freeman testified that Mr.

McLaughlin’s cell was searched by Sheriff’s deputies, but they did not find any documents

that pertained to the solicitation. After Det. Freeman’s testimony, the defense called

Davidson County Sheriff’s Deputy Orlando Tippins to the stand. Deputy Tippins testified

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that he was a guard on the fifth floor of the CJC when Mr. McLaughlin was there. Deputy

Tippins testified that, in his opinion, Mr. McLaughlin was an untruthful person.

III. Solicitation of Michael Jenkins

Sgt. Postiglione testified that around July 10, 2008, he received a letter from Michael

Jenkins. Mr. Jenkins had been housed on the fifth floor of the CJC with the Defendant

earlier in 2008. As a result of the letter, Sgt. Postiglione and Det. Freeman interviewed Mr.

Jenkins. However, at the time Mr. Jenkins was housed at a different correctional facility and

no longer had access to the Defendant; therefore, the detectives could not conduct another

wire operation.

At trial, Mr. Jenkins testified that he was on the fifth floor of the CJC with the

Defendant in February of 2008 and from May 29, 2008 until June 5, 2008. According to Mr.

Jenkins, during that time the Defendant discussed the facts of his murder charge with Mr.

Jenkins. Mr. Jenkins testified that the Defendant became “very angry and upset” after the

Defendant learned that Mr. McLaughlin “had been recording their conversations.”

According to Mr. Jenkins, a short time later, the Defendant approached him and “was very

angry and he wanted somebody to kill the two officers.” Mr. Jenkins testified that the

Defendant never gave him “the names of [the] officers, but everybody knew” who they were.

Mr. Jenkins went on to explain that the Defendant was referring to “the arresting officers”

who had stopped him at the TA.

According to Mr. Jenkins, the Defendant stated that “he blamed them for all of his

problems . . . he blamed them for everything” including the recent death of the Defendant’s

wife. Mr. Jenkins described the Defendant as “very belligerent about those two officers.”

Mr. Jenkins testified that the Defendant told him “point blank” that he “wanted those officers

dead.” Mr. Jenkins further testified that the Defendant was “very serious” about wanting to

kill Sgt. Postiglione and Det. Freeman. According to Mr. Jenkins, the Defendant asked Mr.

Jenkins to kill “the two officers,” and Mr. Jenkins said yes because he thought he “needed

to keep [the Defendant] close to [him] and relay” the information to the police chief.

Mr. Jenkins testified that the Defendant offered him $15,000 to kill Sgt. Postiglione

and Det. Freeman. Mr. Jenkins further testified that the Defendant told him that the

Defendant “was due some money.” Mr. Jenkins thought “it was probably from his wife’s

death.” According to Mr. Jenkins, he had “several” conversations with the Defendant about

killing the detectives. Mr. Jenkins testified that on one occasion, the Defendant asked him

“to pull [his] shirt up” to show the Defendant that he was not wearing a wire. Mr. Jenkins

also testified that the Defendant told him things that were said on the wire recordings with

Mr. McLaughlin. Mr. Jenkins recalled that the Defendant told him that Mr. McLaughlin said

-22-

“that he would take the same caliber gun and shoot someone to make it look like that the

killer was still out there” and that the Defendant said he told Mr. McLaughlin “to do what

you do.” On cross-examination, Mr. Jenkins admitted that he told the police that he thought

Mr. McLaughlin was a liar.

Mr. Jenkins testified that he was currently serving a ten-year sentence in the

Tennessee Department of Correction, that he had “battled drug and alcohol” abuse through

much of his life, and that he had a “lengthy” criminal history. Mr. Jenkins also admitted that

while he had various charges pending he wrote “a lot of letters to different people” offering

to be a police informant. On cross-examination, Mr. Jenkins admitted that in his letter to the

police, he got the Defendant’s name wrong, referring to him as Mr. Mendenhoff. Mr.

Jenkins also admitted that he told no one about his conversations with the Defendant until

after he was arrested on new charges on June 18, 2008.

IV. Jail Letters and Phone Calls

In addition to the foregoing evidence, the State also presented redacted excerpts from

several phone conversations the Defendant had while incarcerated and several letters the

Defendant sent from jail. At trial, Det. Freeman testified that it was typical for investigators

to listen to a defendant’s “jail phone calls” after a defendant’s arrest. Kevin Carroll, an

internal affairs investigator with the DCSD, testified that the jail’s “telephone system records

all outgoing phone calls that inmates . . . make.” Mr. Carroll also testified that at “the

beginning of each recorded phone call, there is a prerecorded tag that says this call may be

monitored and recorded.” Mr. Carroll received a request from Det. Freeman for the

Defendant’s “jail calls,” retrieved the recordings from the jail’s computer system, and

provided them to Det. Freeman. Det. Freeman testified that he and Sgt. Postiglione listened

to “more than 100 calls” made by the Defendant and that they became familiar with the

voices of the Defendant and his family members.

Det. Freeman further testified that based upon statements made by the Defendant in

the recorded “jail calls,” he obtained a judicial subpoena for copies of the Defendant’s mail.

Det. Freeman explained that the Defendant “stated in certain calls that he was going to have

to write it in a letter about finding alibis and other things.” Mr. Carroll testified that all

inmates at the CJC were provided a handbook that stated that “their mail may be read and it

may be turned over to law enforcement.” Mr. Carroll further testified that it was common

to get judicial subpoenas for an inmate’s mail and that inmate mail could also be scanned

“out of concerns for jail safety and security.” Mr. Carroll testified that he received and

complied with the judicial subpoena to copy the Defendant’s mail. Mr. Carroll also testified

that the Defendant was not alerted to the fact that his mail was being intercepted. Det.

Freeman testified that he and Sgt. Postiglione read almost 500 letters written by the

-23-

Defendant and that they became familiar with the Defendant’s handwriting and the people

the Defendant wrote to.

The phone calls and letters can be separated into the following categories: (1) calls

and letters which referred to Ms. Young, Mr. Kiem, and Mr. Powell and the Defendant’s

belief that they were responsible for framing him for Ms. Hulbert’s murder; (2) calls and

letters which referred to Sgt. Postiglione and Det. Freeman and the Defendant’s belief that

they were also responsible for framing him for Ms. Hulbert’s murder; (3) calls and letters that

corroborated Mr. McLaughlin and Mr. Jenkins’ testimony; (4) calls and letters in which the

Defendant stated that he needed an alibi or attempted to fabricate an alibi; and (5) letters

written after June 5, 2008. Det. Freeman admitted at trial that at no point in the calls or

letters did the Defendant discuss “a scheme where someone [had] been hired to commit a

murder on his behalf” or ask “anyone to commit murder on his behalf.”

A. Calls and Letters Regarding Ms. Young, Mr. Kiem, and Mr. Powell

In a phone conversation with his wife from August 7, 2007, the Defendant stated,

“She’s [(referring to Ms. Young)] got me tied up pretty good.” When the Defendant’s wife

asked him who he was referring to, the Defendant responded, “Well, who do you f--king

think? Who have I been searching for all these months?” The Defendant’s wife told him

that Ms. Young had “been blabbing.” The Defendant responded that his “lawyers” had told

him that and that Ms. Young was “smiling, so that’s a plus on me.” Later in the

conversation, the Defendant stated, “But you know, how long we [sic] been looking for her?

And our lawyers we hired couldn’t find her . . . . My lawyers found her in two days.” The

Defendant’s wife informed him that Ms. Young had been “[p]utting [him] down.” The

Defendant then stated that he heard that Ms. Young had said that he was “a good guy.” The

Defendant’s wife responded that Ms. Young had said that at first and “then she said some

other things.” The Defendant warned his wife to “keep it off that air.” Later in the

conversation, the Defendant asked his wife to have their daughter “text [Ms. Young] and ask

the questions” on their daughter’s “untapped line.”

In a phone conversation with his wife from August 10, 2007, the Defendant discussed

the fact that Ms. Young had a recent conviction for driving under the influence. The

Defendant’s wife stated that Ms. Young got out of the charge by paying “a hundred bucks.”

The Defendant then stated that was the type of thing his attorneys wanted “the jury to hear

. . . [w]hat [he] was up against with [Ms. Young].” The Defendant stated that would paint

“a better picture” for him. The Defendant’s wife then asked him if he knew that their phone

call was monitored. The Defendant responded that he did and that he was not saying

anything that he was not supposed to. Later in the conversation, the Defendant’s wife told

-24-

the Defendant about a newspaper article that described Ms. Young as the Defendant’s

“girlfriend.”

In a phone conversation with his wife and one of their daughters from August 18,

2007, the Defendant discussed the news coverage of his case in a “rag paper” called

“Disclosure.” The Defendant’s wife stated that someone interviewed in the paper said Ms.

Young “was a prostitute.” The Defendant then stated that he guessed he “pissed [Ms.

Young] off enough” because his attorney told him that she “wouldn’t shut her mouth.” The

Defendant and his wife hoped that his attorney would “see through” Ms. Young. The

Defendant told his wife and daughter that his attorneys had “found everybody but one.” The

Defendant’s wife asked if Mr. Kiem was still missing. The Defendant told her that they had

found Mr. Kiem, but Mr. Powell was stilling missing, and the Defendant’s wife then referred

to Mr. Powell as “d--khead.”

In a phone conversation with his son from August 22, 2007, the Defendant stated that

he “hired them [sic] two lawyers, to you know, look, to look for you know who [(referring

to Ms. Young)].” The Defendant then stated that those attorneys “couldn’t find her in six

years,” but that his new attorneys found Ms. Young in two days.

In a phone conversation with his wife from August 29, 2007, the Defendant again

stated that he had “hired a lawyer to look for [Ms. Young], to get [his] money” and that after

six years they “never did really find her.” However, the Defendant stated that during that

time Ms. Young “was finding [him].” The Defendant stated that it took his new attorneys

only two days to find Ms. Young. The Defendant’s wife pointed out that this was after Ms.

Young “came out in the paper” with a story that she had ridden in the Defendant’s truck for

“three or four days” and what “saved” her was the fact that she was not a prostitute. The

Defendant insisted that his attorneys found Ms. Young before her story had been published.

The Defendant then stated that his attorneys had found everyone except for Mr. Powell.

In a phone conversation with his wife from September 17, 2007, the Defendant stated

that he wished he knew Ms. Young’s “so called husband’s address” so he could “write him

a letter and let him . . . wise up to things.” The Defendant’s wife informed the Defendant

that Ms. Young’s husband was a “truck driver too.” The Defendant responded that Ms.

Young “always picks on truck drivers. That’s for sure.” The Defendant continued

discussing Ms. Young’s husband in a phone conversation with his wife on September 24,

2007. In that conversation, the Defendant stated that no one believed him that Ms. Young

could frame him and that the only reason for that was because no one knew Ms. Young like

he did. The following exchange then occurred:

-25-

[Defendant’s wife]: Lori or Lori’s husband.

[The Defendant]: Yeah. I don’t know him. So, I wouldn’t, uh, put it on him.

[Defendant’s wife]: Well, I know, in the Disclosure they said he was a

hothead.

[The Defendant]: Um. Well, like I said, you outta write him and tell him he’s

next on the list.

[Defendant’s wife]: Yeah, she’s setting him up real good, isn’t she? I don’t

know she might be scared of him.

[The Defendant]: Huh?

[Defendant’s wife]: She may be scared of him.

[The Defendant]: She ain’t scared of nobody. She uses the law against

everyone of us.

In a phone conversation with his wife and one of their daughters from September 28,

2007, the Defendant’s wife advised him to “keep [his] enemies closer.” The Defendant

complained that he tried to do that with Ms. Young, but he “got bit.” In a later conversation

with his wife from October 15, 2007, the Defendant stated that Ms. Young “stacked it good”

against him. The Defendant’s wife stated that she did not think Ms. Young had framed the

Defendant by herself and that she thought “there’s more people to it.” Later, the Defendant

stated that he had asked one of his daughters to get information on Ms. Young.

In a phone conversation with his wife from October 22, 2007, the Defendant

complained that no one was “going after” Ms. Young. The Defendant stated that Ms. Young

could “allegate [sic] against the guys and they arrest ‘em. But you turn it around, you have

to prove it.” The Defendant further stated that he was “up against a brick wall and no where

to knock it down.” In a later conversation on November 30, 2007, the Defendant stated that

Ms. Young, Mr. Kiem, and Mr. Powell had “alibied theirselves [sic].” The Defendant’s wife

stated that their alibis were “fake.”

Exhibit 16 at trial was a letter from the Defendant to one of his daughters dated

January 9, 2008. In the letter, the Defendant stated that Ms. Young and Mr. Kiem had him

“pretty well hemmed up here trying to prove that [he] didn’t do it and they alibied each

other.” The Defendant also stated that “Mr. F’n Powell got alibied he was at work.” The

Defendant then stated that because Ms. Young, Mr. Kiem, and Mr. Powell had alibis, he

would need someone to say that they saw him on the night of the murder. Later in the letter,

the Defendant stated that he believed his daughters were “the target of [Ms. Young and Mr.

Kiem’s] threats.” The Defendant told his daughter that he believed Ms. Young and Mr.

Kiem had “screwed with” her car after they had spoken to his attorneys. The Defendant then

asked his daughter to help him by “getting someone to trick them into getting them to talking

-26-

about coming after [him], setting [him] up, like [his daughter] said Powell was doing that one

night.”

The January 9, 2008 letter continued with the Defendant making the following

statement about Ms. Young:

I always jumped your mom for not kicking Lori’s ass when she beat on you,

but I found out the hard way it’s not possible because she knew she had to

have help getting me down. So she brought Ritchie and David with her and

always came out of the dark or blindsided me. And I realized your mom didn’t

stand a chance against her and neither did you. So that’s why last year you

hardly ever heard me cut your mom down for not protecting you because I was

at the other end of it. I was not very proud of myself but they didn’t know

what she was up to until the day that I was arrested, but it was too late.

The Defendant concluded the letter by stating his version of the events that led up to his

arrest.

In Exhibit 18, a letter from the Defendant to his “pen pal” Katie Collins and dated

February 22, 2008, the Defendant asked Ms. Collins if she knew Ms. Young. The Defendant

then told Ms. Collins where he thought Ms. Young was and asked Ms. Collins to write to Ms.

Young “like you’re her friend and you hate [the Defendant]. Find out all of the info you can,

please. It would be real helpful.”

Exhibit 21 was a letter from the Defendant to his wife and daughters dated March

2008. In the letter, the Defendant asked if there was anything about him or Ms. Young “in

the paper.” The Defendant referred to Ms. Young as “the b---h.” The Defendant then stated

that he had learned the name of Ms. Young’s husband and some information about him.

After complaining about the detectives in his case, the Defendant then asked if his family

remembered “the night [they] went looking for” Mr. Kiem after they saw him drive by their

house. The Defendant claimed that he could not find Mr. Kiem that night because Ms.

Young had helped Mr. Kiem hide his car. The Defendant claimed that Mr. Kiem lied by

saying that he had “never [] driven a car” and that Mr. Powell lied by saying that “he hasn’t

been around [them] since 2002.” The Defendant implored his family to give “any info” to

his attorneys to help “back [him] up.” The Defendant also claimed that a friend had stated

that Mr. Powell “was still in the area in 2005 or 2006.”

Later in Exhibit 21, the Defendant asked his family to “run the computer to a

newspaper in [the town of] Only about Powell’s arrest for not reporting and [Mr. Kiem’s]

losing his driver’s license for [a] DUI wreck.” The Defendant stated that this information

-27-

would “help support [him] saying [he] saw them.” The Defendant then stated that he recalled

an incident when Mr. Kiem and Ms. Young drove by his house. The Defendant elaborated

stating as follows:

Richie and Lori drove by with Richie behind the wheel, but I need help

proving Richie and David are big ass liars. Richie is saying Lori was with him

at home, so proving him a liar would be a must.

The Defendant concluded the letter by stating that he was “nervous Lori might win,” and he

would never get to go home.

In Exhibit 23, a letter from March 2, 2008, the Defendant stated Ms. Young’s alleged

attempt to frame him was “one hell of a set up.” The Defendant also stated that he had not

killed anyone, but that it was “stack[ed] really good” and that it was “enough to make you

wonder how in the f--k did Lori manage it?” In Exhibit 24, a letter from the Defendant to

his “pen pal” Ms. Collins dated March 4, 2008, the Defendant stated that he asked Ms.

Collins “to keep tabs on Ms. Lori Young [] because she has a history of getting men in

trouble with [the] law.” The Defendant claimed that while these men were “in jail fighting

to prove their innocence,” Ms. Young would “disappear[] under the radar, [and] assume[]

a different identity.” The Defendant also claimed that when Ms. Young “started messing

with” him, he contacted the police, “but she was sexually involved with them from our state’s

attorney down to the chief of police, so [he] was banging [his] head against the wall.” The

Defendant then went on a rant about the unfairness of the judicial system and how the

detectives in his case had framed him.

In Exhibit 28, a letter from the Defendant to his daughter dated March 13, 2008, the

Defendant stated that Mr. Kiem was lying about having not driven. The Defendant stated

that he had people checking court and police records on Mr. Kiem so that any information

they found could be used so that when Mr. Kiem’s “bearded fat ass gets on the stand and

lies” the Defendant’s attorneys would “have the ammo available.”

Exhibit 29 was a letter from the Defendant to one of his daughters dated March 19,

2008. In the letter, the Defendant stated that making Mr. Kiem and Mr. Powell “out to be

F’n liars” was “real important because it supports what [he had] been saying.” The

Defendant then stated what he believed to be Mr. Kiem and Mr. Powell’s various lies, “So

far they say they have not seen me and you since 2001 and Richie never has driven a vehicle.

And I’m the one that killed your cat and her little kittens.” The Defendant complained that

“someone who doesn’t know me ain’t going to believe unless someone other than family

says” that he was telling the truth. The Defendant then stated that he would not speak to the

-28-

media about Ms. Young’s alleged plot to frame him but instead would follow his attorney’s

advice and win his case “a step at a time.”

In Exhibit 36, a letter to the Defendant’s wife dated April 25, 2008, the Defendant

stated that he was frustrated with his social worker because she wanted to know why he was

“setting Lori up with these crimes.” In Exhibit 37, a letter to one of the Defendant’s

daughters dated April 25, 2008, the Defendant also complained about his social worker

asking why he was “trying to frame Lori.” The Defendant asked his social worker “who’s

framing who here? The evidence is pointing toward me, not her, so who’s doing the

framing?” The Defendant then asked his daughter to “find out when did David Powell move

to Anderson, Indiana,” so they could prove that he was “still in the area in 2006 or 2005.”

The Defendant also stated that he had someone else looking up information on Ms. Young

and Mr. Kiem.

In Exhibit 39, a letter dated April 30, 2008, the Defendant told one of his daughters

to “watch” herself “a lot” because “Lori [had] been released.” In a phone conversation with

his wife from May 4, 2008, the Defendant told his wife to warn their family “to start

watching their backs closer, Lori’s on the loose.” In another phone conversation with his

wife on May 6, 2008, the Defendant stated that Ms. Young was “on the loose,” that she had

been in jail in Kentucky, and that “they let her go.” The Defendant stated that “one of the

guys here, he found out she got two years probation.” The Defendant told his wife that he

was not sure if it was true, but that he wanted his family to “watch you guys’ back [sic], real

good now.” In a phone conversation with his wife on May 10, 2008, the Defendant stated

“[l]ook out, look . . . [s]he is, she is on the loose. She’s got a two year probation.”

Exhibit 54 was a letter from the Defendant to his wife dated May 11, 2008. In the

letter the Defendant claimed that he was being framed and that he was worried about his

family being “safe . . . from Lori.” The Defendant reiterated what he had told his wife in an

earlier phone conversation that she needed to “watch [her] damn back[] because Lori’s up

to something.” The Defendant concluded the letter by stating that “something is smelling

bad.”

B. Calls and Letters Regarding Sgt. Postiglione and Det. Freeman

In a phone conversation with his son from August 20, 2007, the Defendant stated that

Sgt. Postiglione “needed to clear his desk” so he “wouldn’t have an open case laying [sic]

on his desk, when he retired.” The Defendant claimed that he was Sgt. Postiglione’s “bait.”

Later in the conversation, the Defendant stated that the “arresting officer” had “blinders on”

and could not see what had really happened with Ms. Hulbert’s murder. The Defendant then

reiterated that “when you got a detective getting ready to retire, you know, he don’t want that

-29-

on his desk when he walks out the door.” The Defendant’s son responded that Sgt.

Postiglione would have a lawsuit “on his desk before he walks out that door.” The

Defendant’s son further stated that Sgt. Postiglione “jumped the gun . . . and he’s gotta pay

the price for that.” The Defendant made a similar statement on August 25, 2007. The

Defendant claimed that Sgt. Postiglione “just wanted to clear his desk before he retired” and

that the Defendant was “his scapegoat.”

In a phone conversation with his son from August 28, 2007, the Defendant stated that

Sgt. Postiglione “ain’t gonna let [his case] die.” The Defendant stated that Sgt. Postiglione

kept his case in the news by “putting everything on the internet and s--t.” In a later phone

conversation with his wife on October 26, 2007, the Defendant stated that someone had

asked him in a letter if he needed anything and that he responded “[j]ust two cops’ badges

is all.”

In Exhibit 16, a letter from the Defendant to one of his daughters dated January 9,

2008, the Defendant stated his version of his encounter with Sgt. Postiglione on July 12,

2007. In the letter the Defendant referred to Sgt. Postiglione as a “q---r looking gentleman,”

a “q---r,” “Mr. Q---r,” and “q---r boy.” The Defendant claimed that he initially refused to

speak to Sgt. Postiglione but eventually got out of his truck. The Defendant further claimed

that he never consented to Sgt. Postiglione searching his truck and that Sgt. Postiglione ran

past him to get inside his truck while he spoke to Det. Freeman. According to the Defendant,

the detectives began to accuse him of Ms. Hulbert’s murder almost immediately, and Sgt.

Postiglione stated that he would bet “his badge” that the Defendant’s DNA and shoe prints

would be found at the murder scene. The Defendant then claimed that Sgt. Postiglione began

“tearing trash bags open” and questioning him. The Defendant claimed that he was

handcuffed for refusing to answer Sgt. Postiglione’s questions. The Defendant further

claimed that he was tricked into signing the consent to search form because the detectives

told him it was a second consent form for a DNA sample.

Exhibit 17 was a letter from the Defendant to his wife and daughters dated February

15, 2008. In the letter the Defendant stated that nothing was going on with his case, “just

more time for the detectives to fabricate more s--t.” Exhibit 19 was a letter from the

Defendant to one of his sisters dated February 21, 2008. In the letter, the Defendant stated

that the “two detectives” had “people in a frenzy down here” by spreading “rumors” and

“lies” about him. The Defendant stated that he wanted “the SOB’s job and his retirement

benefits” so that “the next detective might think more than once about putting his badge on

the line like these have done.” The Defendant concluded the letter by stating that it was

unfair that he was being treated as guilty until proven innocent but that the detectives were

“innocent until you prove them guilty.” The Defendant stated that he felt that was a “little

ass backwards.”

-30-

Exhibit 20 was an undated letter from the Defendant to Katie Collins. In the letter,

the Defendant stated that the police had arrested him and “then started trying to make the

crime scene fit.” The Defendant then made the following cryptic statement, “One by one is

gone, bye-bye and that one so long. I would elaborate more, but my lawyers say watch it so

I do.” In Exhibit 21, the Defendant stated that when anyone referred “to the two detectives,”

he would say “f--k them” and that the detectives were “two-faced lying SOB[s].” The

Defendant also stated that the “two detectives [were] contradicting themselves.”

Exhibit 22 was a letter from the Defendant to one of his sisters dated March 2, 2008.

In the letter, the Defendant again claimed that the detectives had tricked him into signing a

consent to search form by telling him it was a consent form for providing a DNA sample.

The Defendant also claimed that the detectives “dubbed” the tape of his interview and

planted evidence in his truck to make him appear guilty. The Defendant then stated that he

was charged with murder “because two detectives can’t pull their heads out of their asses if

you drew them a map on how.”

In Exhibit 24, a letter dated March 4, 2008, the Defendant told his “pen pal” Ms.

Collins that he had “a finger on each hand, and it’s the middle one, aimed at anyone who is

connected to the law.” Later, the Defendant stated that he was “pissed” because he had “to

prove the detectives wrong” and that a “little injustice goes a long way.” The Defendant then

told Ms. Collins to make sure that her boyfriend wore gloves whenever he threw trash away

and always had an alibi because the TA would “do whatever somebody tells them, lies,

cheats, makes s--t up.” Later, the Defendant stated that the detectives had “everyone scared

from the TA workers to the pimps, drug dealers, and prostitutes.”

Exhibit 27 was a letter from March 2008, with the Defendant writing to one of his

sisters. In the letter, the Defendant stated that “it still hurts that these detectives can spread

such BS and [nothing] gets done to stop it.” Later in the letter, the Defendant recalled a

conversation in which someone told him that they would send the detectives “to jail for being

such blundering idiots.” In Exhibit 28, a letter from March 13, 2008, the Defendant stated

that the police were framing him because he looked “like a good patsy.” The Defendant also

warned his daughter to “watch who you talk or write to because it could be a cop or police

informant trying to make [him] sound like a liar.”

Exhibit 31 was a letter from the Defendant to his daughter dated April 1, 2008. In the

letter, the Defendant stated that he wanted the “public to know what kind of crooked

detectives they have and put it on TV and newspaper nationwide like they did when [he] was

arrested.” The Defendant stated that he would “burn” the detectives “the same way” they had

burned him.

-31-

Exhibit 32 was a letter from the Defendant to Ms. Collins dated April 11, 2008. In

the letter, the Defendant stated that Ms. Young had always said that “cops are f--king idiots

who can’t pull their heads out of their own ass even if you gave them step by step

instructions.” The Defendant then stated that he wanted “two crooked as a dog’s hind leg

detectives’ badges,” and that one of the detectives had just won an award that he was “going

to tarnish.” Exhibit 33 was a letter from the Defendant to Christina Edwards, another “pen

pal,” and dated April 19, 2008. In the letter, the Defendant described Sgt. Postiglione and

Det. Freeman as “two crooked detectives who couldn’t pull their own heads out of their asses

if you handed them step by step instructions.”

Exhibit 34 was two separate letters that were mailed in the same envelope. In the first

letter the Defendant wrote to one of his daughters that he was going to “miss a lot of s--t”

because he could not get anyone “to step forward for [him] because they are scared of these

cops.” The second letter was dated April 9, 2008, and addressed to the Defendant’s wife.

In that letter the Defendant stated that he was “going down a fighting, tarnishing a couple of

badges as” he went. Later, the Defendant stated that there was “nothing that a few dead

detectives wouldn’t cure.” Further in the letter, the Defendant stated that “[l]ike Lori said,

cops are a bunch of dumbasses who can’t pull their heads out of their own asses if you

handed them step by step instructions! Right!”

In Exhibit 35, a letter from the Defendant to his son dated April 23, 2008, the

Defendant referred to Sgt. Postiglione and Det. Freeman as “assholes” and liars. The

Defendant stated that everything the detectives said about him was “a lie,” and that “[t]hese

detectives lying was bad enough,” but now his own son was questioning him. The Defendant

accused the detectives of dubbing the recording of his interview and pulling “this case out

from under another [detective] and [causing] that one to lose his job.” The Defendant also

noted that the detectives were tapping “phone calls.” The Defendant concluded by saying

that there were a “bunch of FN’ questions and no answers.”

In Exhibit 38, a letter from the Defendant to his son dated April 30, 2008, the

Defendant stated that he needed alibis “badly because the detectives are helping frame [him]

good.” The Defendant also stated that one detective “was overheard saying he would frame

anyone fitting close to it so it wouldn’t be on his desk when he retired.” Later in the letter,

the Defendant stated, “I hope when you get the picture of your asshole taken, have Detective

Freeman on one cheek and have the other Detective Postiglione.” The Defendant then asked

his son if he could “shed some positive light on [his] case by going after them.” The

Defendant told his son to keep his “head up and quit listening to the news, it’s all bulls--t

created by these crooked detectives and they are so far under water they are doing everything

they can to survive the explosion coming.” The Defendant then told his son to quit

“worrying on what the assholes say.”

-32-

Exhibit 52 was a letter from the Defendant to his son dated April 1, 2008. In the

letter, the Defendant accused the police of hiding evidence “in a storage place at Metro police

station.” The Defendant stated that Sgt. Postiglione and Det. Freeman had “ruined [his]

family’s life and [his] life so [he] will go to court and try to ruin two detectives’ lives as

well.” The Defendant further stated that the detectives had ruined his life “worldwide,” so

he wanted “these crooked S.O.B.’s [sic] lives ruined on TV as well.” The Defendant then

stated that he hoped he would win his trial, but the detectives had “done a damn good frame

up.” The Defendant stated that he wanted to show the world “how crooked Nashville

detectives will stoop to say they solved a crime.” The Defendant claimed again that he was

being framed by Sgt. Postiglione and Det. Freeman. The Defendant concluded the letter by

telling his son to “never ever trust a detective. Never ever let them in your house. Never

ever let them search your vehicle without [a] legal warrant.”

In Exhibit 53, a letter from the Defendant to one of his sisters dated April 1, 2008, the

Defendant stated Sgt. Postiglione and Det. Freeman had ruined his life and his family’s lives

and that he wanted “the news channels and paper to ruin these two detectives’ lives, show

everyone how hind leg crooked these assholes are.” Exhibit 55 was a letter from the

Defendant to a “pen pal” named Vanessa Ellis dated May 15, 2008. In the letter, the

Defendant stated that “the detectives covered their track real good” in planting evidence and

framing him for murder. The Defendant then stated that his attorneys would “have to do

their jobs as crooked as the detectives.” The Defendant claimed that the FBI had planted

“two snitches” in his cell block and explained that was why he asked Ms. Ellis to send him

“some skimpy clothing pictures, ‘cause a cop will not expose their bodies.”

Exhibit 57 was a letter written after the Defendant learned about the police

intercepting his mail and Mr. McLaughlin. The Defendant stated that he knew incoming

mail “was checked for contraband,” but he thought that “the law says once an envelope is

sealed and placed in a mailbox it becomes federal property.” The Defendant complained that

“[t]hese assholes bend the rules to suit theirselves.” The Defendant then stated that he “just

added two more people to [his] drop dead list so the detectives won’t feel alone: C-4 and the

DA, both crooks.” The Defendant concluded the letter by stating that he would not

“elaborate on [anything] else” in his letters.

C. Calls and Letters Corroborating Mr. McLaughlin and Mr. Jenkins’ Testimony

In a recorded phone conversation with his wife from March 25, 2008, the Defendant

stated that a fellow inmate had just been convicted of ordering “a hit, a kill” on someone

even though “he wasn’t even around.” The Defendant stated that he could not believe that

a conviction could be based upon “that hearsay bulls--t” and that “hopefully” he would not

“get something like that done to [him].”

-33-

Exhibit 36 was a letter from the Defendant to his wife dated April 25, 2008. In the

letter the Defendant referred to his conversations with Mr. McLaughlin. The Defendant

stated that “another guy [had been] brought up whose uncle owns a trucking company, [and]

he’s setting me up with a high dollar run when I get out, which he says I will.” The

Defendant stated that he told Mr. McLaughlin that his wife, kids, or brother would ride with

him because he “won’t be set up again.” According to the Defendant, Mr. McLaughlin stated

that “his uncle wouldn’t care who rides with [him] as long as [he] did the run.” The

Defendant then described the route he was supposed to drive for Mr. McLaughlin’s uncle.

Later in the letter, the Defendant stated that Mr. McLaughlin told him he would “have no

problem” winning his case. Mr. McLaughlin then stated that the FBI had put “one of their

guys two cells down” from the Defendant “trying to get [him] to say something.” The

Defendant concluded that he was “pissing [them] off” because they could not get anything

out of him.

Exhibit 37 was a letter from the Defendant to one of his daughters dated April 25,

2008. In the letter, the Defendant asked his daughter to “get on the internet and look up Roy

McLaughlin, get a picture of him, if possible, and send all [the] info you can.” The

Defendant stated that Mr. McLaughlin had told him that “he bombed the building in New

York” and that he had been “in jail here for around two years.” The Defendant explained

that Mr. McLaughlin had been “released [] out on bail and was rearrested a couple of months

ago.” Later in the letter, the Defendant stated that there was “a guy who’s saying I will walk

from these charges and his uncle would like me to drive for him.” The Defendant then

described the route and stated that he would not “even tell him okay if no one will ride with

me. Ain’t going to get set up again, that’s for damn sure.” The Defendant stated that Mr.

McLaughlin told him he would make around $2,000 to $3,000 a week. The Defendant stated

that Mr. McLaughlin also stated that he would try to get the Defendant’s brother a job with

his uncle because the Defendant’s brother was unable to get work after the Defendant’s

arrest. The Defendant concluded the letter by stating that after he “beat these charges,”

neither one of them would “have to worry about money anymore.”

In Exhibit 38, a letter to the Defendant’s son dated April 30, 2008, the Defendant

stated that there was “another truck driver in here for carrying a cargo of C-4 and detonators

in his jeep going home from work.” The Defendant stated that Mr. McLaughlin “said he

would help alibi me with some of his friends, [and] asked where did I need it.” The

Defendant told Mr. McLaughlin “let me count the ways” and “was looking up at the sky.”

The Defendant stated that Mr. McLaughlin “laughed” and told him that he was “serious.”

The Defendant responded, “so am I.” In Exhibit 39, a letter to one of the Defendant’s

daughters dated April 30, 2008, the Defendant asked his daughter if she would be willing to

drive a truck for him. The Defendant told her that he had “a guy who said he would hook”

him up with “his uncle making runs.” The Defendant stated that Mr. McLaughlin told him

-34-

that if the Defendant could get drivers for his uncle’s company, his uncle would hire the

Defendant when the Defendant got out of prison. The Defendant also stated that someone

would have to ride with him so he would not “get set up again.”

In a phone conversation with one of his sisters from May 5, 2008, the Defendant

stated that he was “being such a good cat and mouse game player they brought another

[confidential informant] up here.” The Defendant stated that there were informants on both

sides of his cell. The Defendant told his sister that he would walk and talk on the roof with

another inmate nicknamed C-4 and that his nickname was C-Truck. The Defendant

explained that Mr. McLaughlin was nicknamed C-4 because “he likes to play with plastic

explosives.” The Defendant claimed that while he was talking to Mr. McLaughlin, another

inmate approached him and tried to talk to him about being at the Pilot truck stop in

Nashville. The Defendant stated that Mr. McLaughlin told him “that motherf--ker’s CI.”

The Defendant agreed with Mr. McLaughlin. The Defendant then stated that because he was

in “county jail” the police “can’t use a wire.”

A phone conversation from June 1, 2008, between the Defendant and one of his sisters

was played for the jury. In the conversation the two discussed the Defendant’s wife’s life

insurance policies. In Exhibit 60, a letter dated August 3, 2008, the Defendant asked one of

his daughters if she had checked on his wife’s life insurance policy and stated that he thought

the policy was worth $15,000 or $16,000. Det. Freeman testified that the amount mentioned

in the letter was significant because Mr. Jenkins had stated that the Defendant asked him to

kill Sgt. Postiglione and Det. Freeman for a “down payment” of $15,000.

Exhibit 58 was a letter from the Defendant to Ms. Ellis dated June 2, 2008. In the

letter, written after the Defendant learned that Mr. McLaughlin had been a police informant,

the Defendant stated that it was his fault “for believing who he was and what he was capable

of doing and not caring about innocent people in the way, his term he used was casualty of

war.” The Defendant then stated that Mr. McLaughlin “got what he wanted when he wanted,

nothing got in his way to obtain it.”

D. Calls and Letters Regarding an Alibi or Attempts to Fabricate an Alibi

In a phone conversation with his son from August 27, 2007, the Defendant stated that

the case against him was “stacked so good, [he] may not get out.” The Defendant reiterated

that he “couldn’t believe how good it was stacked.” Later in the conversation, the Defendant

stated that the “way these things [were] stacked on [him], it’s gonna be a longer time for

[him].” The following exchange then occurred:

-35-

[The Defendant]: But, trying to find alibis for when they’re saying this s--t

happened. That’s what’s hard. Finding them. Remembering dates, times.

[Defendant’s son]: Um-hmm.

[The Defendant]: I go. About the only way to get one is to lie about one.

[Defendant’s son]: Right. Can’t do that.

[The Defendant]: No. Well, you could, if you could talk to somebody about

doing it. I mean, you know, like me and you talking right now, you know,

they’d hear and know about it before you did it. You know what I mean? So,

it wouldn’t be no good.

[Defendant’s son]: Right.

[The Defendant]: Oh well.

In a phone conversation with his wife from October 8, 2007, the Defendant stated that

he would not be able to go home unless he got “some alibis here.” The Defendant also stated

that unless he could “get an alibi” he would be “done.” Later in the conversation, the

Defendant reiterated that he had to “have alibis.” In a phone conversation on October 12,

2007, the Defendant informed his wife that their son had told the Defendant that he would

not be an alibi for the Defendant. The Defendant reiterated that the “only way to beat this

system down here is with alibis.” The Defendant’s wife then reminded him that their phone

conversation was being recorded. The Defendant responded that “the only thing they record

is if you talk about uh, trying to get out.” The Defendant’s wife then stated that she had

something to say, but she was not sure if she could say it over the phone. The Defendant told

her to write it in a letter. The Defendant stated that he knew the jail read incoming mail but

he did not know about outgoing mail.

In a phone conversation with his wife from October 22, 2007, the Defendant told her

that he had to prove that he told the police that he wanted a lawyer and that they could not

search his truck. The Defendant’s wife asked how he could possibly prove that when the

detectives were saying “something different.” The Defendant responded that he needed to

“get somebody that said, you know, they over heard [him] saying it.” The Defendant

concluded that was “hard to do.” The following exchange then occurred:

[The Defendant]: In other words, if I can get, you know like, Aries or

somebody like that to say, “Well I was walking down the railroad tracks when

they [were] trying to arrest this guy and, we snuck down into some higher

grass, and listened and we heard the driver say, ‘No you can’t search my truck,

and I want [a] lawyer.’” You know something like that . . . .

[Defendant’s wife]: Well, it didn’t happen.

[The Defendant]: Well, you get my drift.

[Defendant’s wife]: Yeah, I get your drift.

-36-

The Defendant later reiterated that he needed an alibi because “they just stacked a lot of s--t

on [him].” The Defendant stated that he needed to “get somebody to lie for [him] to get out

of it” and that he needed to “come up with some alibis.” The Defendant’s wife interrupted

him and reminded him that their conversation was being recorded. The Defendant responded

that he had “said nothing wrong.” After discussing Ms. Young, the Defendant stated that he

was “gonna have to come up with people that you know, wasn’t there that says they were.”

The Defendant’s wife again reminded him that their conversation was being recorded, and

the Defendant stated that he was “just saying” that if “somebody comes up and says they

were there” he would be “surprised.”

In Exhibit 17, the Defendant stated that his wife “better not get jealous of [him]

walking around with a hooker and talking even if the hooker testifies” that they had sex

because his family would “know better.” The Defendant went on to state that he would “not

say any different” if a hooker claimed to have had sex with him at the time of the murder

because “just that alone [would] be a good alibi.”

Exhibit 23 was a letter from the Defendant to Dee Barrett and dated March 2, 2008.

In the letter, the Defendant stated that someone named Bud “could muster to help [him] by

saying he saw Richie [in] February of 2007 with a gun that looked like his.” The Defendant

then made the following statements:

But anyway, if I could use some people to stack s--t right back at these

mothers to make them look really stupid! And say you had the killers already

behind bars and even know it and laughed at them as I walk away with 20

million. The people you use has to be reliable and trustworthy to pull this s--t

off. I need two women really acting like whores and one saying she had [seen]

Sara Hulbert a week prior to her death [and Ms. Hulbert had said] she had seen

a girl killed by spoiled brat (Lori) and Hollywood and thought maybe she was

next. And the other one to say on July 10th she saw my yellow truck and seen

my yellow paper in [the] window and knew me and went to the TA to meet me

and saw the police around me and heard one policeman in plain clothes, 5’10”,

165 pounds, ask me if he could search my truck and heard me say no. And

couldn’t believe it when they saw him bail into the bunk area. You know

that’d end a lot [of] bulls--t . . . . But if there’s anyone you know who doesn’t

live around me that can identify me and wants to help me by acting as a whore

just write and say you know a whore and I give you the girl’s description.

Well, better tell me scene #1 she saw it, or scene #2 saw me. Whore #1 or

Whore #2 or both whore. Don’t mention no names, they read what you write.

-37-

The letter ends with the Defendant stating the following, “So my only luck would be scene

#2, but I also will [accept] #1 with it. Sara Hulbert was beautiful blonde with . . . .”

In Exhibit 24, the Defendant stated that he had people offer to provide him a fake alibi

for money and that he had turned them down. The Defendant then stated that “now I’m

thinking hell anything will do! Right!” Exhibit 25 was a letter from the Defendant to his son

and grandson dated March 4, 2008. In the letter, the Defendant stated that he needed

“someone to grow some balls and step forward and help [him].” Exhibit 26 was a letter from

the Defendant to his sister and nephew also dated March 4, 2008. In the letter, the Defendant

stated that he needed “someone” to “grow some balls and stand up against these assholes

instead of being scared.” The Defendant claimed that he had five witnesses who “saw a

white Volvo pull in with the dead woman in his truck and was saw [sic] changing clothes.”

In Exhibit 31, a letter dated April 1, 2008, the Defendant asked one of his daughters

to tell someone named Bud that when the police interviewed him, “to say that wasn’t the gun

he left in [the Defendant’s] car, but he did see it in Richie’s hand when squirrel hunting with

him.” The Defendant told his daughter that the “DA cannot put the dead woman in [his]

truck or the gun in [his] hand so [his] lawyers want[ed] to disprove it when they try to put

[the gun] in [his] hands. 10-4 good buddy. Ha ha.” The Defendant then told his daughter

not to tell his wife about his plan because she would “rant and rave.” The Defendant stated

that Ms. Young, Mr. Kiem, and Mr. Powell had all lied and that he wanted “to turn it a little

back at them.” The Defendant then stated that Mr. Kiem had “dark brown eyes, long hair,

and [a] full beard.”

In Exhibit 38, the Defendant stated that he “needed alibis badly” because the

detectives were framing him. The Defendant stated that Mr. McLaughlin had offered to help

him get some alibis. The Defendant also told his son to “just cross your fingers my alibis can

be found prior to court. I don’t like someone to lie, but at this point in the game, I will take

anything, right?”

E. Letters Written After June 5, 2008

Exhibit 59 was a letter from the Defendant to a fellow inmate named “Ray-Ray” and

dated July 7, 2008. In the letter, the Defendant stated that “C-4 turned out to be an F-N’

snitch so watch that to be good.” Exhibit 61 was another letter to Ray-Ray dated August 8,

2008. In the letter, the Defendant told Ray-Ray not to trust anyone and referred to Mr.

McLaughlin as an “asshole.” The Defendant further stated that he did not talk about Mr.

McLaughlin “very much to anyone” but that Mr. McLaughlin was “lower than snail slime.”

-38-

Exhibit 62 was a letter from the Defendant to Randy Dee dated August 19, 2008. In

the letter, the Defendant stated that the “FN’ rat’s name is Roy Lucas McLaughlin” and that

as “soon as he snitched on [the Defendant] and two others” he was moved to “protective

custody.” The Defendant then asked Mr. Dee to “[t]ell your buddy judge I need his help.

Ha! Ha!” Exhibit 63 was also a letter to Randy Dee dated September 7, 2008. In the letter,

the Defendant stated that he learned that Mr. Jenkins was also a “snitch” and that he thought

it was “funny” that Mr. Jenkins and Mr. McLaughlin were working with the police. The

Defendant then stated, “Both are saying I hired them but I never said s--t like that, nor did

I write it. The detective must be scared to death that I might go free and he’ll be caught with

a hand full of s--t which he created.”

Exhibit 64 was a letter from the Defendant to his son dated October 1, 2008. In the

letter the Defendant stated that he thought the person in the cell next to him was a “snitch.”

The Defendant then stated that Sgt. “Postiglione, stick this guy up your ass.” Exhibit 65 was

a letter to Ray-Ray dated October 23, 2008. In the letter, the Defendant stated that Mr.

McLaughlin and Mr. Jenkins were testifying against him and called the situation “bulls--t.”

Exhibit 66 was an undated letter from the Defendant to Randy Dee. In the letter, the

Defendant stated that he would “fight for [his] constitutional rights” and that he would make

sure “the detectives are going to wear some battle scars, sort of speaking.” The Defendant

further elaborated that Sgt. Postiglione and Det. Freeman would “be blackballed from any

civil service job in the U.S.” when he got done with them. The Defendant also complained

that his mail was read “without a search warrant.” The Defendant then asked Mr. Dee to “get

on a computer and find [him] some info” to help him “nail the two detectives.”

Exhibit 67 was another letter to Randy Dee dated November 9, 2008. In the letter, the

Defendant called Sgt. Postiglione and Det. Freeman “lying jerks” and stated that he wanted

to “take [their] badges so bad [he] [could] taste it.” The Defendant stated that he was “more

angry with Postiglione than Freeman” but that Det. Freeman was still “backing the asshole

up.” The Defendant then stated that his attorneys were “up against a detective whose been

doing this type of bulls--t for [twenty] years.” The Defendant stated that he thought it was

“time for [Sgt. Postiglione’s] reign of terror to end and harshly.”

Exhibit 68 was a letter from the Defendant to his son and grandson from April 2009.

In the letter, the Defendant wanted someone to “at least start something against Postiglione

and Freeman legally like, internal affairs, so them assholes can start ducking the s--t.”

Exhibit 69 was a letter from the Defendant to Randy Dee dated June 9, 2009. In the letter,

the Defendant complained that “they” did not “make cops pay for their crimes on us poor

people.” The Defendant stated that instead “dirty f--king cops [get] to retire and draw [their]

monthly money like [they] never did nothing [sic] wrong.”

-39-

V. Verdict and Sentencing

Based upon the foregoing evidence, the jury convicted the Defendant of soliciting Mr.

McLaughlin to commit the premeditated first degree murders of Ms. Young, Mr. Kiem, and

Mr. Powell. The jury acquitted the Defendant of soliciting Mr. Jenkins to commit the

premeditated first degree murders of Sgt. Postiglione and Det. Freeman.

Following a sentencing hearing on February 26, 2010, the trial court sentenced the

Defendant as a Range I, standard offender to ten years for each count. The trial court ordered

the sentences to be served consecutively, for an effective thirty-year sentence. In determining

whether the Defendant’s sentences should be served consecutively, the trial court made the

following statement:

Is [the Defendant] under the law a dangerous offender whereby some,

all, none of these multiple convictions are run together? Well, the law has

discussion of that as well. And the only - - based on the proof, the only

possible classification [the Defendant] would possibly fall under is the

dangerous offender.

That statute goes on to define that: One whose behavior indicates little

or no regard for human life. And [defense counsel is] right in that the case law

goes beyond that for courts having to find certain factors. That’s what I was

mentioning earlier.

Aggregate terms of the sentence and how that relates to the severity of

the offense, whether it’s necessary within the sentencing of a certain individual

to protect the public from further serious criminal conduct. Well, you could

say, well, that - - just let that rise and fall on the other charges and if he’s

convicted then that’ll handle that. Well, if he’s - - I mean, we [are] here for

sentencing on these particular counts. And the Court has to factor in what the

law says as to these particular charges and let the other charges rise and fall on

their own. He may be found not guilty of all of those particular charges. So

I’ve got to, here today, under those statutory factors and [State v. ]Wilkerson[,

905 S.W.2d 933 (Tenn. 1995),] factors determine what aggregate terms should

be imposed based on the facts and circumstances of this case.

And then that gets to what I was discussing. I mean, not every serious

offense - - I mean, this is a serious offense based on what I’ve already said.

I mean, going to the - - trying to alter the justice system which some people

may not like, but it’s the best system I’m aware of in our - - within the world.

-40-

So that then gets us [] back to the facts of the case. And when you

listen to all of the statements and the discussions on tape, you review the proof

that was introduced through some of the letters, I mean, it appears that there’s

a - - and [the Defendant] argued to the jury, well, he didn’t really mean what

he was saying, it was mainly Mr. McLaughlin or his idea just to help himself

out with the State. But I’ve looked back through here earlier, the statements

on tape and otherwise and without repeating all of them - - I mean, they’re

fairly descript as to what’s being discussed and names, addresses being

provided. “We’re not going to talk after this as long as they don’t show for

court, don’t care how you carry it out, blah, blah, blah.”

I mean it’s apparent to the Court that [the Defendant] has a nonchalant

attitude about the lives of these three people. Just quite apparent. But as I was

saying, not every serious offense makes one a dangerous offender. But in the

Court’s opinion based on the proof in this particular case and those factors that

I’ve mentioned under the statute and the case law, [the Defendant] would

qualify under [Tennessee Code Annotated section] 40-35-115 as a dangerous

offender.

After sentencing, the Defendant filed a timely motion for new trial which the trial

court denied. A timely notice of appeal was filed, and this appeal followed.

ANALYSIS

I. Severance

Prior to trial, the Defendant filed a motion to sever the two counts charging him with

solicitation of the first degree murders of Sgt. Postiglione and Det. Freeman from the

remaining counts of the indictment. The trial court held a hearing on the matter and issued

a written order denying the motion. The trial court concluded that both sets of charges were

part of “a continuing plan or conspiracy of preventing key State’s witnesses from testifying

against” the Defendant in the trial for Ms. Hulbert’s murder. The trial court also concluded

that if the two groups of offenses were tried separately, evidence of one group would be

admissible at trial for the other group as “evidence of the [D]efendant’s motive, an absence

of mistake on his part, and existence of a larger plan–all of which are material issues in the

instant case.” The trial court further concluded that “the probative value of such evidence

would outweigh any potential prejudice to the [D]efendant.”

The Defendant contends that the trial court erred by denying his motion to sever. The

Defendant argues that the two counts involving Sgt. Postiglione and Det. Freeman were not

-41-

part of a common scheme or plan in relation to the other counts of the indictment because

the Defendant had different alleged motives for each group of offenses. The Defendant

further argues that, if the two groups of offenses were tried separately, evidence of the counts

regarding Sgt. Postiglione and Det. Freeman would not have been admissible at a trial on the

remaining counts. The State responds that the alleged solicitations in all five counts were

part of a continuing plan “to avoid prosecution in [the Defendant’s] capital case.” The State

also responds that evidence of the two groups of offenses would be admissible in separate

trials to show absence of mistake and the existence of a larger plan. The State further

responds that the Defendant did not suffer any prejudice by the trial court’s ruling because

the jury acquitted the Defendant of the solicitation charges regarding Sgt. Postiglione and

Det. Freeman.

Tennessee Rule of Criminal Procedure 8(b) provides that “[t]wo or more offenses may

be joined in the same indictment” if the offenses are either (1) “parts of a common scheme

or plan” or (2) “of the same or similar character.” However, Rule 14(b)(1) provides that if

“two or more offenses are joined . . . pursuant to Rule 8(b), the defendant has the right to a

severance of the offenses unless the offenses are part of a common scheme or plan and the

evidence of one would be admissible in the trial of the others.” Accordingly, once a

defendant makes a motion to sever or objects to a pre-trial consolidation motion by the State,

“the trial court must consider the motion by the severance provisions of Rule 14(b)(1)”

instead of the provisions of Rule 8(b). State v. Garrett, 331 S.W.3d 392, 402 (Tenn. 2011)

(quoting Spicer v. State, 12 S.W.3d 438, 443 (Tenn. 2000)).

Upon a defendant’s motion to sever, “the trial court must hold a hearing in order to

gather the information necessary to adjudicate the issue.” Garrett, 331 S.W.3d at 403. The

trial court must sever the offenses unless it can

conclude from the evidence and arguments presented at the hearing that: (1)

the multiple offenses constitute parts of a common scheme or plan; (2)

evidence of [one] offense is relevant to some material issue in the trial of all

the other offenses; and (3) the probative value of the evidence of other

offenses is not outweighed by the prejudicial effect that admission of the

evidence would have on the defendant.

Id. (quoting Spicer, 12 S.W.3d at 445) (citations omitted). A trial court’s denial of a motion

to sever is reviewed under an abuse of discretion standard. Id. at 401 (citing Spicer, 12

S.W.3d at 442).

As our supreme court has previously stated, “a common scheme or plan for severance

purposes is the same as a common scheme or plan for evidentiary purposes.” State v. Moore,

-42-

6 S.W.3d 235, 240 n.7 (Tenn. 1999). For offenses to be considered part of a continuing

scheme or plan, the crimes must be directed toward a “common goal or purpose.” State v.

Denton, 149 S.W.3d 1, 15 (Tenn. 2004) (quoting State v. Hoyt, 928 S.W.2d 935, 943 (Tenn.

Crim. App. 1995)) (quotation marks omitted). This “requires proof of ‘a working plan,

operating towards the future with such force as to make probable the crime for which the

defendant is on trial.’” State v. Allen Prentice Blye, No. E2001-01375-CCA-R3-CD, 2002

WL 31487524, at *5 (Tenn. Crim. App. Nov. 1, 2002) (quoting Hoyt, 928 S.W.2d at 943),

perm. app. denied (Tenn. Mar. 10, 2003).

We agree with the trial court’s assessment that both sets of offenses were part of a

common scheme to derail the case against him for Ms. Hulbert’s murder. The Defendant

argues that his motive in soliciting Sgt. Postiglione and Det. Freeman’s murders was his

personal hatred for the two men, and that he sought to kill Ms. Young, Mr. Kiem, and Mr.

Powell because they would be witnesses against him at his murder trial. However, the

evidence established that the Defendant believed that both sets of victims were attempting

to “frame” him for Ms. Hulbert’s murder. Likewise, the evidence demonstrated that the

Defendant was obsessed with and despised all of the victims. Additionally, evidence

demonstrating the Defendant’s repeated attempts to acquire false alibis illustrated the

Defendant’s continuing scheme to gain an acquittal in his murder trial by circumventing the

judicial process. Therefore, the evidence was sufficient for the trial court to conclude that

both sets of offenses constituted parts of a common scheme or plan.

The primary issue of any severance case is whether the evidence of one offense would

be admissible in the trial of the other if the two offenses remained severed. Garrett, 331

S.W.3d at 402. Put another way, a severance motion is essentially “‘a question of evidentiary

relevance.’” Id. (quoting Spicer, 12 S.W.3d at 445). Tennessee Rule of Evidence 404(b)

excludes evidence of “other crimes, wrongs, or acts” committed by the defendant when

offered only to show the defendant’s propensity to commit the crime charged. This is

because such evidence lacks relevance and invites the finder of fact to infer guilt from

propensity. Garrett, 331 S.W.3d at 402-03. However, evidence of prior bad acts may be

admissible for other purposes, such as “to show identity, guilty knowledge, intent, motive,

to rebut a defense of mistake or accident, or to establish some other relevant issue.” Moore,

6 S.W.3d at 239 n.5 (quoting State v. Hallock, 875 S.W.2d 285, 292 (Tenn. Crim. App.

1993)).

We agree with the trial court’s assessment that evidence of one set of offenses would

have been admissible at trial for the other set of offenses. The Defendant’s main argument

at trial was that he did not intend to solicit Mr. McLaughlin or Mr. Jenkins and that the two

men misunderstood his statements to them. Evidence that the Defendant offered Mr.

McLaughlin $15,000 to kill Ms. Young, Mr. Kiem, and Mr. Powell would have been

-43-

admissible at trial for the solicitation of Mr. Jenkins in order to rebut the defense of mistake

or accident. Both Mr. Jenkins and Mr. McLaughlin testified that the Defendant offered them

the same amount of money to kill the different sets of victims. Likewise, evidence of the

wire recordings with Mr. McLaughlin would have been admissible to corroborate Mr.

Jenkins’ testimony that the Defendant gave him details about the recorded conversations.

Evidence that the Defendant asked Mr. Jenkins to “pull [his] shirt up” in order to demonstrate

that he was not wearing a wire would have also been admissible at a trial for the solicitation

of Mr. McLaughlin in order to rebut the defense that Mr. McLaughlin took the Defendant’s

statements out of context. We also agree with the trial court’s assessment that the probative

value of this evidence would not have been outweighed by the danger of unfair prejudice.

Accordingly, we conclude that the trial court did not err by denying the motion to severe.

With respect to the notion that the Defendant was prejudiced by the joinder of the two

sets of offenses, we note that prior to trial, the Defendant argued that trying all of the

offenses together would improperly “bolster” the State’s “weak proof” with respect to the

counts regarding Sgt. Postiglione and Det. Freeman. Having been acquitted of those counts,

the Defendant now complains on appeal that the counts regarding Sgt. Postiglione and Det.

Freeman improperly bolstered the evidence in the remaining counts and created an inference

“that the [D]efendant had a propensity to solicit persons to kill others.” However, even if the

trial court erred by denying the Defendant’s motion to sever, such error would ultimately

have been harmless. State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999) (stating that “the

defendant must show that the error probably affected the judgment before reversal is

appropriate”).

Given the overwhelming evidence of guilt with respect to the counts involving Ms.

Young, Mr. Kiem, and Mr. Powell, which we will discuss in more detail later in this opinion,

and the fact that the Defendant was acquitted on the counts involving Sgt. Postiglione and

Det. Freeman, we agree with the State’s assertion that the Defendant did not suffer any

prejudice as a result of the trial court’s denial of his motion to sever and that any possible

error by the trial court was ultimately harmless. See Moore, 6 S.W.3d at 242-43 (noting that

“the line between harmless and prejudicial error is in direct proportion to the degree . . . by

which proof exceeds the standard required to convict” and holding that denial of motion to

sever was harmless error where “the evidence presented was more than sufficient for

conviction” and because the defendant was acquitted of two of the joined offenses); State v.

James Carson Honeycutt, No. E2007-00303-CCA-R3-CD, 2008 WL 2600684, at *15 (Tenn.

Crim. App. July 2, 2008) (concluding that “because the jury acquitted the defendant . . . the

trial court’s error in joining these offenses to those concerning the other two victims was

harmless beyond a reasonable doubt”). Accordingly, we conclude that this issue is without

merit.

-44-

II. Defendant’s Statements to the Police

The Defendant contends that the trial court erred by denying his motion to suppress

his statements to the police. The Defendant argues that his statements were inadmissible

because he was illegally seized when Sgt. Postiglione “instructed him to exit his truck”

because Sgt. Postiglione had no reasonable suspicion to believe that the Defendant had

“committed or was about to commit a crime.” Alternatively, the Defendant argues that he

was illegally seized when Sgt. Postiglione “took possession of his identification.” The

Defendant also argues that his statements were inadmissible because he was subjected to

“custodial interrogation without the benefit of Miranda warnings” while Sgt. Postiglione

searched his vehicle. The Defendant further argues that he was subjected to “the functional

equivalent of interrogation without Miranda warnings” after his arrest, during a conversation

with Sgt. Postilione while the two were inside a car. Finally, the Defendant argues that his

statement given after Miranda warnings was tainted and inadmissible due to the prior

“extraction of an illegal, unwarned confession from” the Defendant. Alternatively, the

Defendant argues that his statement given after Miranda warnings was also considered

tainted and inadmissible under the Tennessee Constitution.

The State responds that the trial court did not err in admitting the Defendant’s

statements to the police. The State responds that Sgt. Postiglione had a reasonable suspicion

to stop and seize the Defendant. Alternatively, the State argues that the initial encounter

between Sgt. Postiglione and the Defendant was “a consensual police-citizen encounter”

which required no reasonable suspicion. The State also argues that the fact that Sgt.

Postgilione “retained the [D]efendant’s driver’s license did not transform the consensual

police-citizen encounter into a seizure.” The State further responds that the Defendant was

not “in custody” while Sgt. Postiglione searched his truck; therefore, Sgt. Postiglione was not

required to give Miranda warnings prior to asking the Defendant if he was the person they

were looking for and if his truck was the truck they were looking for. The State also

responds that Sgt. Postiglione’s “small talk” with the Defendant in the car did not amount to

the functional equivalent of interrogation. Finally, the State responds that because there was

no prior custodial interrogation, the Defendant’s statement given after he had received

Miranda warnings did not violate his federal or state constitutional rights.

A. Factual Background

Prior to trial, the Defendant filed a motion to suppress the statements he made to the

police when he was arrested for Ms. Hulbert’s murder. The arguments in the Defendant’s

motion mirrored the arguments raised in his appellate brief. On November 9, 2009, the trial

court held a hearing on the motion. At the hearing, Sgt. Postiglione and Det. Freeman

testified about the Defendant’s arrest in more detail than they testified at trial.

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At the hearing, Sgt. Postiglione testified that on July 12, 2007, he saw a “similar

looking tractor” to one seen on the surveillance video near “the area of the crime scene when

the crime had occurred.” However, Sgt. Postiglione admitted that he was not able to get any

“identifying information” about the truck from the surveillance video besides noticing “some

sort of a design on it.” Sgt. Postiglione followed the tractor-trailer in a “Ford Taurus,

unmarked car” and without activating his emergency lights or sirens. The truck pulled into

the TA and parked. Sgt. Postiglione testified that he “saw the curtains on the driver’s side

of the tractor immediately get pulled closed.” Sgt. Postiglione radioed Det. Freeman and

informed him that he was “going to approach the driver and just try and speak with him.”

Sgt. Postiglione testified that he knocked on the door once and got “no response.” Sgt.

Postiglione believed that approximately thirty seconds passed and then he knocked a second

time. At that time, “the curtain came open and [he] saw [the Defendant] looking down.”

Sgt. Postiglione testified that he showed the Defendant his badge, “asked [the Defendant] if

he would mind coming out and speaking to [him],” and “motioned for him to come out.”

Sgt. Postiglione testified that the Defendant got out of his truck “fairly quickly.” Sgt.

Postiglione identified himself and told the Defendant that he was “looking for a truck that

might be similar to [the Defendant’s] truck.” Sgt. Postiglione testified that the Defendant had

no shoes on and his shirt was opened. The Defendant told Sgt. Postiglione that he “had

woken him up or that he had been asleep.” Sgt. Postiglione testified that he “had a casual

conversation” with the Defendant and eventually asked the Defendant to consent to provide

a DNA sample. The Defendant agreed to provide a DNA sample. Sgt. Postiglione testified

that at some point he asked the Defendant for identification and the Defendant gave his

driver’s license to Sgt. Postiglione. Later, Sgt. Postiglione testified that he “probably had”

the Defendant’s driver’s license after the Defendant was arrested. After “some additional

conversation” with the Defendant, Sgt. Postiglione noticed “a few drops of blood on the

driver’s side door” and on the Defendant’s “left thumb.” According to Sgt. Postiglione, Det.

Freeman arrived shortly after the Defendant got out of the truck.

According to Sgt. Postiglione, after the Defendant provided a DNA sample he asked

the Defendant when was “the last time [the Defendant] had been to Nashville.” The

Defendant told Sgt. Postiglione that it had been May 2007. Sgt. Postiglione then asked the

Defendant if he could search the truck. Sgt. Postiglione testified that the Defendant asked

him if he “was going to tear the truck up.” Sgt. Postiglione assured the Defendant that he

would not “tear the truck up,” and the Defendant “motioned with his hand to go ahead.” Sgt.

Postiglione testified that he asked Det. Freeman to get “a consent to search” form from his

car. Sgt. Postilione then asked the Defendant if “he had a weapon in the truck and he said

he did not.” Sgt. Postiglione thought that he “went up into the truck and looked around”

when Det. Freeman “got back to the truck.” Sgt. Postiglione later testified that he did not get

into the truck until after the Defendant had given him “verbal permission” and “signed a

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consent to search” form. Sgt. Postiglione testified that prior to entering the Defendant’s

truck, “there was no level of suspicion whatsoever” on his part, and that everything “was

very casual.”

Sgt. Postiglione testified that he went back to the “sleeper portion” of the truck and

“noticed a large trash bag . . . between the bed and the driver’s seat.” Inside the bag, Sgt.

Postiglione “noticed what appeared to be blood soaked items.” The Defendant was “standing

outside the truck,” and Sgt. Postiglione “asked him about the blood in the bag.” The

Defendant told Sgt. Postiglione that “he cut his leg getting in and out of the truck.” The

Defendant was still outside of the truck, and Sgt. Postiglione asked the Defendant to show

him the cut. Sgt. Postiglione testified that the Defendant “pulled his pant leg up” and showed

Sgt. Postiglione his leg “which did not have a cut, scab, or scar visible.” Sgt. Postiglione

stated that the blood “appeared to be wet” and that the Defendant “just had no explanation

for that.” Sgt. Postiglione looked into the bag again and saw “some female clothing.” Sgt.

Postiglione asked the Defendant “if there was any females who were riding in his vehicle.”

Sgt. Postiglione testified that the Defendant stated that his wife and daughter “would ride”

with him, but the Defendant “was unable” to describe “the clothing that they might [have

left] in the truck.”

Sgt. Postiglione testified that while he was searching the truck, the “door was open

the whole time” and he believed that the “engine was actually running.” While Sgt.

Postiglione continued to ask the Defendant about the blood found in the bag, the Defendant

“jumped into the truck and he stood with his arm . . . on the steering wheel and he was having

a conversation with [Sgt. Postiglione] while [he] was seated on the back mattress.” The

Defendant told Sgt. Postiglione that “the blood actually came from a prostitute in

Indianapolis who cut her hand.” The Defendant then asked Sgt. Postiglione if he was under

arrest, and Sgt. Postiglione told him that he was not. The Defendant also asked if he “needed

a lawyer,” and Sgt. Postiglione told him that he “couldn’t really advise him about that.” Sgt.

Postiglione testified that he did not give the Defendant Miranda warnings after the Defendant

asked him these questions. Sgt. Postiglione testified that he noticed a pair of shoes that had

“tread markings” that appeared to be similar to tread markings found at the crime scene in

Ms. Hulbert’s murder. Sgt. Postiglione showed the shoes to Det. Freeman, asked Det.

Freeman if “it looked familiar,” and Det. Freeman “agreed that it looked similar.” Sgt.

Postiglione testified that he did not ask the Defendant any questions about the shoes.

Sgt. Postiglione then asked the Defendant if he was in “the right truck” and if this was

the truck he had “been looking for.” According to Sgt. Postiglione, the Defendant “twice []

shrugged his shoulders and then he said, ‘If you say it is.’” Sgt. Postiglione then asked the

Defendant if the Defendant was “the person [they had] been looking for.” Sgt. Postiglione

testified that the Defendant “did the same thing, shrugged his shoulders and said, ‘If you say

-47-

so.’” Sgt. Postiglione then asked the Defendant “[f]or a second time whether he had a

weapon in the truck and . . . he admitted that he had a .22 [rifle] after initially denying [it].”

Sgt. Postiglione told Det. Freeman to “take [the Defendant] into custody” at that point. Sgt.

Postiglione admitted that the Defendant was not given his Miranda warnings at the time of

his arrest. Sgt. Postilgione testified that he stopped searching the Defendant’s truck at that

point because he did not want to contaminate the crime scene. Sgt. Postiglione testified that

his search of the truck took between ten and twenty minutes.

Sgt. Postiglione testified that as they waited for “a transport car” to take the Defendant

to the CJC, the Defendant told him “that he’s a diabetic.” Sgt. Postiglione recalled that it

“was extremely hot that day,” in the mid-nineties. Sgt. Postiglione “offered the opportunity

[for the Defendant] to sit . . . in [his] car while [they] waited on a patrol car.” The Defendant

was placed in the front passenger seat of Sgt. Postiglione’s car, and Sgt. Postiglione got into

the driver’s seat. The Defendant was handcuffed while he was in the car. Sgt. Postiglione

turned on the air conditioner, and the Defendant “sat there for a few minutes and didn’t say

anything.” Sgt. Postiglione testified that he did not ask the Defendant any questions while

they were in the car. Sgt. Postiglione admitted that he “engaged in small talk” with the

Defendant, “just typical small talk, [like] ‘hot day.’” Sgt. Postiglione testified that he was

in the car with the Defendant for approximately ten to twenty minutes.

According to Sgt. Postiglione, the Defendant volunteered that he “was pissed off at

Richie and David.” Sgt. Postiglione summarized what else the Defendant had told him in

the car as follows:

And then he began to give some information about they did all the

killings. He made other statements about he displayed the victim here so we

could find her. He said the blood inside the bag belong[ed] to a girl they killed

up in Indianapolis. He made some other incriminating statements.

When he finished I asked him if he’d be willing to make a voluntary

statement downtown. He said that he would. And that was it.

Sgt. Postiglione testified that he did not “stop to Mirandize” the Defendant as he was making

these statements. Sgt. Postiglione also testified that the Defendant only spoke to him for a

“couple of minutes.” The Defendant was then placed in the backseat of a patrol car and

taken from the TA to a local hospital “to be checked out because he said he had diabetes and

. . . said he was feeling hot, possibly sick or something like that.”

Sgt. Postiglione testified that he later conducted an interview of the Defendant “down

[at] the station.” Prior to this interview, the Defendant was advised of his Miranda rights and

-48-

signed a written waiver form. Sgt. Postiglione summarized what the Defendant said after

receiving his Miranda warnings as follows:

He spoke about several different homicides that occurred. He claimed

not to have been involved but claimed that these other people did it. And he

claimed to - - they somehow knew what truck stop he would be at and they

would show up at the same truck stop. They would somehow find his weapon;

they would kill the victim. In some cases leave the victim in his truck. He

then would take the victims out of the truck in some cases. In other cases he

would just clean up the blood.

In our homicide in Nashville, he would - - he took the victim out. He

laid her down in a displayed fashion. He said he did that so we could do our

job. He wanted the police to find the real killers of all these victims.

Det. Freeman testified at the hearing that he parked his car behind the Defendant’s

truck to the “left-hand side.” Det. Freeman also testified that Sgt. Postiglione’s car was

parked “parallel” or “beside” the Defendant’s trailer, but not behind the trailer. According

to Det. Freeman, the Defendant could have backed his truck out of its parking space without

having to “run over” the detective’s vehicles. Det. Freeman testified that when he

approached Sgt. Postiglione and the Defendant, Sgt. Postiglione asked him to get a DNA kit

from the trunk of his car. Det. Freeman testified that he read the consent form to the

Defendant and told the Defendant that he did not “have to give [them] a sample.” The

Defendant signed the consent form without saying anything. Det. Freeman testified that he

then took the consent form and the samples back to his car. When Det. Freeman came back

to the Defendant, Sgt. Postiglione asked him if he had a consent to search form in his trunk.

Det. Freeman testified that he explained the form to the Defendant and told the Defendant

that he “didn’t have to do it.” According to Det. Freeman, the Defendant signed the form

without saying anything. Det. Freeman recalled that Sgt. Postiglione had not entered the

Defendant’s truck when he returned with the consent form, but he could not remember if Sgt.

Postiglione waited until the consent form was signed to enter the truck.

On November 30, 2009, the trial court entered an order denying the Defendant’s

motion to suppress. The trial court concluded that the “initial interaction between Sergeant

Postiglione and the Defendant” was a seizure because Sgt. Postiglione took the Defendant’s

driver’s license “never to return it.” However, the trial court also concluded that Sgt.

Postiglione had a reasonable suspicion to seize the Defendant based upon the fact that the

Defendant’s truck resembled the truck seen on the TA surveillance video and because the

truck was “approaching the very truck stop where Ms. Hulbert was found dead.” With

respect to the questions asked by Sgt. Postiglione during the search of the Defendant’s truck,

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the trial court concluded that Sgt. Postiglione had “interrogated” the Defendant, but that the

Defendant was not “in custody” at the time his vehicle was searched; therefore, the

Defendant was not entitled to Miranda warnings. With respect to the Defendant’s statements

while waiting in the car with Sgt. Postiglione, the trial court accredited Sgt. Postiglione’s

testimony that he only engaged the Defendant in small talk and concluded that Sgt.

Postiglione’s decision to sit in the car with the Defendant was reasonable under the

circumstances. The trial court concluded that Sgt. Postiglione’s actions did not amount to

the functional equivalent of interrogation; therefore, the Defendant’s statements were

admissible despite the fact that he had not been given Miranda warnings. The trial court also

concluded that the Defendant’s remaining issues were moot because the Defendant had not

been subjected to a prior illegal interrogation.

At the April 23, 2010 hearing on the Defendant’s motion for new trial, the State

presented more testimony regarding who had possession of the Defendant’s driver’s license

on the day of the Defendant’s arrest. Sgt. Postiglione testified that he gave the Defendant’s

driver’s license to Det. Freeman within a few minutes of the Defendant giving it to him. Det.

Freeman testified that gave the Defendant his driver’s license back either before or after the

Defendant signed the consent to search form. Det. Freeman recalled that the Defendant put

his driver’s license back into his pocket or wallet. Sgt. Postiglione testified that prior to

interviewing the Defendant at the police station, he retrieved the Defendant’s driver’s license

from the Defendant’s wallet, which had been placed on Sgt. Postiglione’s desk.

B. Standard of Review

On appellate review of suppression issues, the prevailing party “is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley,

307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996)). Questions about “the assessment of witness credibility, the weight and value of

evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the

trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court

“makes findings of fact in the course of ruling upon a motion to suppress, those findings are

binding on appeal unless the evidence in the record preponderates against them.” Id.

Additionally, a trial court’s conclusions of law along with its application of the law to the

facts are reviewed de novo without any presumption of correctness. Id.2

2

For purposes of brevity, we note that this standard of review applies to this issue and the next two issues

addressed: the trial court’s denial of the Defendant’s motions to suppress his statements to Mr. McLaughlin

and his jail letters.

-50-

C. Defendant’s Fourth Amendment Claims

Both the federal and state constitutions offer protection from unreasonable searches

and seizures with the general rule being “that a warrantless search or seizure is presumed

unreasonable and any evidence discovered subject to suppression.” Talley, 307 S.W.3d at

729 (citing U.S. Const. amend. IV; Tenn. Const. art. I, § 7). However, these constitutional

principles do not limit all contact between the police and private citizens. Instead, “these

constitutional protections are implicated only when a police officer’s interaction with a

citizen impermissibly intrudes upon the privacy or personal security of the citizen.” State v.

Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). As such, courts have recognized three different

types of police-citizen interactions: “1) a full scale arrest which must be supported by

probable cause; 2) a brief investigatory stop which must be supported by reasonable

suspicion; and 3) a brief police-citizen encounter which requires no objective justification.”

State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006).

It is only “when the officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). It has repeatedly been held that “even when

police have no basis for suspecting that an individual has committed or is about to commit

a crime, the officer may approach an individual in a public place and ask questions without

implicating constitutional protections.” Daniel, 12 S.W.3d at 425. The United States

Supreme Court has explained the reasoning behind this rule as follows:

[L]aw enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place, by asking

him if he is willing to answer some questions, by putting questions to him if

the person is willing to listen, or by offering in evidence in a criminal

prosecution his voluntary answers to such questions. Nor would the fact that

the officer identifies himself as a police officer, without more, convert the

encounter into a seizure requiring some level of objective justification. The

person approached, however, need not answer any question put to him; indeed,

he may decline to listen to the questions at all and may go on his way. He may

not be detained even momentarily without reasonable, objective grounds for

doing so; and his refusal to listen or answer does not, without more, furnish

those grounds. If there is no detention–no seizure within the meaning of the

Fourth Amendment–then no constitutional rights have been infringed.

Florida v. Royer, 460 U.S. 491, 497-98 (1983) (internal citations omitted).

-51-

To that end, “courts have consistently held that the Fourth Amendment is not

implicated and no seizure occurs when police approach an individual, in a public place, or

in a parked car” and ask the individual questions or request to search, “so long as police do

not convey a message that compliance with their request is required.” Daniel, 12 S.W.3d at

426. Similarly, this court has previously recognized the validity of the “knock and talk”

procedure which is premised on the following:

Absent express orders from the person in possession against any

possible trespass, there is no rule of private or public conduct which makes it

illegal per se, or a condemned invasion of the person’s right of privacy, for

anyone openly and peaceably, at high noon, to walk up the steps and knock on

the front door of any man’s “castle” with the honest intent of asking questions

of the occupant thereof-whether the questioner be a pollster, a salesman, or an

officer of the law.

State v. Cothran, 115 S.W.3d 513, 521 (Tenn. Crim. App. 2003) (quoting United States v.

Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000)).

Sgt. Postiglione’s initial interaction with the Defendant was a consensual police-

citizen encounter as described above; therefore, no reasonable suspicion was required from

Sgt. Postiglione to approach the Defendant’s vehicle and ask to speak to the Defendant. Sgt.

Postiglione knocked twice within the span of a minute and, when the Defendant opened the

curtain, motioned and asked the Defendant to step out of the truck and speak with him.

While Sgt. Postiglione was “visibly armed,” he did not draw his weapon, nor did he attempt

to physically restrain the Defendant. Sgt. Postiglione did not block the Defendant’s truck,

and the Defendant could have driven away from the TA parking lot. The Defendant argues

that because his truck was running, he would not have been able to hear Sgt. Postiglione’s

request that he step out of the truck. According to the Defendant, Sgt. Postiglione’s “gesture

to exit the truck” amounted to an order or demand. However, the trial court accredited Sgt.

Postiglione’s testimony that he both gestured and asked the Defendant to step out of the truck

and speak with him. The evidence in the record does not preponderate against this finding;

therefore, we agree with the trial court that Sgt. Postiglione did not demand or order the

Defendant out of the vehicle.

The Defendant also argues that “once [he] looked out of his truck from behind the

closed curtains and saw Sergeant Postiglione’s display of police authority,3 along with his

gesture to exit the truck, no reasonable person in his situation would have felt free to ignore

3

The Defendant argues that Sgt. Postiglione’s badge coupled with the fact that Sgt. Postiglione was “visibly

armed” constituted a display of police authority.

-52-

the police officer’s persistent efforts or his instructions.” However, the “encounter did not

become a seizure simply because [the Defendant] may have felt inherent social pressure to

cooperate with [Sgt. Postiglione].” Daniel, 12 S.W.3d at 427; cf. State v. Donaldson, 380

S.W.3d 86, 92-93 (Tenn. 2012) (holding that “a lawful traffic stop authorizes officers, as a

matter of course, to require drivers to exit their vehicles”). Accordingly, we conclude that

the Defendant was not illegally seized when Sgt. Postiglione’s initially approached the

Defendant’s vehicle and requested that the Defendant step out and speak with him.

However, “what begins as a consensual police-citizen encounter may mature into a

seizure of the person.” Daniel, 12 S.W.3d at 427. Our supreme court has previously held

that “when an officer retains a person’s identification for the purpose of running a computer

check for outstanding warrants, no reasonable person would believe that he or she could

simply terminate the encounter by asking the officer to return the identification.” Id.

Without identification, a defendant is “effectively immobilized” because “[a]bandoning one’s

identification is simply not a practical or realistic option for a reasonable person in modern

society.” Id.

Sgt. Postiglione testified at the suppression hearing that early on in his encounter with

the Defendant, he asked for the Defendant’s identification and the Defendant gave his

driver’s license to Sgt. Postiglione. Sgt. Postiglione admitted that he “probably had” the

Defendant’s driver’s license until sometime after the Defendant was arrested. At the motion

for new trial hearing, Det. Freeman testified that Sgt. Postiglione gave him the Defendant’s

driver’s license and that he gave the license back to the Defendant around the time the

Defendant signed the consent to search form. Under either factual scenario, the detectives

retained the Defendant’s identification for several minutes. Accordingly, we conclude that

the Defendant was effectively seized for Fourth Amendment purposes when Sgt. Postiglione

took possession of his driver’s license.

We must now determine whether Sgt. Postiglione’s seizure of the Defendant was

justified by a reasonable suspicion. “An officer conducting an investigatory stop must be

able to point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant [the] intrusion.” Nicholson, 188 S.W.3d at 659 (quoting

Terry, 392 U.S. at 21) (internal quotation marks omitted) (brackets in original). Reasonable

suspicion is “a particularized and objective basis for suspecting the subject of a stop of

criminal activity, and it is determined by considering the totality of the circumstances

surrounding the stop.” State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (internal citations

omitted).

Based upon the totality of the circumstances, we conclude that Sgt. Postiglione had

a reasonable suspicion to detain the Defendant for a brief investigatory stop. Sgt. Postiglione

-53-

testified that the Defendant’s truck was similar to a truck seen on surveillance video of the

night of Ms. Hulbert’s murder and was in the area where Ms. Hulbert’s body was found. Sgt.

Postiglione also noted that the Defendant’s truck had “artistic-type designs” that were similar

to markings on the truck from the surveillance video. At trial, Det. Freeman testified that the

truck in the surveillance video “went back to [the] back area” where Ms. Hulbert’s body was

found and was “the only one during the time frame that didn’t go get gas or . . . you didn’t

see a driver walk back to the business or anything else.” Additionally, the Defendant lied and

told Sgt. Postiglione he had been sleeping when Sgt. Postiglione knocked on his window.

Sgt. Postiglione also testified that there was what appeared to be blood on the driver’s side

door and on the Defendant’s left thumb.4 Accordingly, we conclude that Sgt. Postiglione had

a reasonable suspicion to stop the Defendant and that the trial court did not err in denying the

Defendant’s motion to suppress his statements on Fourth Amendment grounds.

D. Defendant’s Miranda Claims

A defendant’s statements “made during the course of custodial police interrogation

are inadmissible as evidence in a criminal case unless the State establishes that the defendant

was advised of certain constitutional rights and waived those rights.” State v. Anderson, 937

S.W.2d 851, 853 (Tenn. 1996) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The

Miranda decision, by its own terms, “applies to the questioning of an individual who has

been taken into custody or otherwise deprived of his freedom by the authorities in any

significant way.” State v. Dailey, 273 S.W.3d 94, 102 (Tenn. 2009) (quoting Miranda, 384

U.S. at 478) (internal quotation marks omitted). However, a police action that would

constitute a Fourth Amendment seizure of an individual does not automatically equate to that

individual having been placed “in custody” for purposes of a Miranda analysis. For example,

the United States Supreme Court has held that persons temporarily detained pursuant to a

traffic stop are not “in custody” for the purposes of Miranda. Berkemer v. McCarty, 468

U.S. 420, 440 (1984). As such, the fact that the Defendant was seized by Sgt. Postiglione

when Sgt. Postiglione took possession of his identification does not mean that the Defendant

was “in custody” for Miranda purposes.

The test for determining whether a person is in custody to a degree that he would be

entitled to Miranda warnings is “whether, under the totality of the circumstances, a

reasonable person in the suspect’s position would consider himself or herself deprived of

freedom of movement to a degree associated with a formal arrest.” Anderson, 937 S.W.2d

at 855. The determination of whether a suspect is in custody for Miranda purposes is a “very

4

It is unclear from the record exactly when Sgt. Postiglione asked for the Defendant’s driver’s license and

when he noticed what appeared to be blood. However, the stains were on the driver’s side door and on the

Defendant’s thumb.

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fact specific inquiry.” Id. To that end, our supreme court has supplied the following, non-

exclusive, list of factors “relevant to that objective assessment”:

the time and location of the interrogation; the duration and character of the

questioning; the officer’s tone of voice and general demeanor; the suspect’s

method of transportation to the place of questioning; the number of police

officers present; any limitation on movement or other form of restraint

imposed on the suspect during the interrogation; any interactions between the

officer and the suspect, including the words spoken by the officer to the

suspect, and the suspect’s verbal or nonverbal responses; the extent to which

the suspect is confronted with the law enforcement officer’s suspicions of guilt

or evidence of guilt; and finally, the extent to which the suspect is made aware

that he or she is free to refrain from answering questions or to end the

interview at will.

Id.

The Defendant argues that he was in custody and interrogated when Sgt. Postiglione

asked the Defendant if he was in the right truck and if the Defendant was the person he had

been looking for. However, based upon our review of the Anderson factors, we agree with

the trial court that the Defendant was not in custody for Miranda purposes when Sgt.

Postiglione searched his truck. The incident occurred around 10:00 a.m. in a public parking

lot, and the Defendant was in the cab of his truck when Sgt. Postiglione asked him the

questions. Sgt. Postiglione testified that his search of the truck took between ten and twenty

minutes and that his interactions with the Defendant prior to the search also took between ten

and twenty minutes.

This text is long and has been trimmed here. Open the source document for the complete record.