State of Tennessee v. Donald Ray Lovell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 17, 2003 Session

STATE OF TENNESSEE v. DONALD RAY LOVELL

Direct Appeal from the Criminal Court for Davidson County

No. 2001-B-1175 J. Randall Wyatt, Jr., Judge

No. M2002-02379-CCA-R3-CD - Filed September 17, 2003

The Davidson County Grand Jury indicted the Defendant for aggravated gambling promotion. The

trial judge denied the Defendant’s preliminary motion to suppress certain evidence, and a Davidson

County jury found the Defendant guilty as charged. The court sentenced him to two years of

probation, a $1,000 fine, and five hours of unpaid community service per month for twenty-four

months. He now appeals claiming: (1) that the trial court erred in failing to suppress physical

evidence gathered during and incriminating statements made as a result of a warrantless search; and

(2) that the evidence was insufficient to support a conviction for aggravated gambling promotion.

Finding no reversible error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and

JOHN EVERETT WILLIAMS, JJ., joined.

Peter J. Strianse, Nashville, Tennessee (at trial and on appeal), and Dale M. Quillen, Nashville,

Tennessee (at trial), for the appellant, Donald Ray Lovell.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T.

Ryan, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Janice H.

Bossing and John Zimmermann, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

I. Facts

A 911 call made in response to a robbery instigated the present case. Stephanie Bates, a

record keeper for the Metropolitan Nashville Police Department Communications Division,

identified a tape that she prepared of the 911 call, which was received at 9:20 p.m. on January 6,

2001, and related radio traffic between the dispatcher and police officers, and it was played at trial

and entered into evidence. During the taped conversation, the caller identified himself as Donald

Lovell, the Defendant. Thereafter, the Defendant stated that a robbery was in progress at 2602

Belmont Boulevard, that the robber had a gun and wore a black mask and an army jacket, and that

two women were still inside the house. The Defendant also stated that at least one of the women was

still tied up, and he did not know whether the robber was still in the house. On cross-examination

Bates quoted the transcript of the call and noted that the Defendant said that the robber was inside

the house when he arrived there.

Nicholas Falcone, an officer with the Metropolitan Nashville Police Department, testified

that he was on patrol on January 6, 2001 and was dispatched to 2602 Belmont Boulevard in response

to a robbery call. He stated that he had been driving toward the given address when he came across

the Defendant on a side street. The officer testified that when the officer saw the Defendant he had

a phone in his hand and flagged the officer down. According to Falcone, the Defendant got in the

car, and they rode together to the scene, where the Defendant remained by the car while Officer

Falcone joined other officers in examining the house. The officer reported that they found two other

victims of the robbery inside. He stated, “I was one of the last ones to go in. Some other guys went

in first to clear the house, make sure there w[eren’t] anymore suspects in there.”

Officer Falcone testified that inside the house, he saw a table with calculators and banded

pieces of paper with numbers on them. He stated that in the kitchen, they found several brown paper

bags with “the date and some . . . money . . . [ and letters were written on the bags] like ‘DJ’ for Dow

Jones, . . . referring to . . . actual numbers.” He asserted that the dates were all within about a week

of January 6, 2001. He further stated that around the couch on the floor he saw a few white tie

wraps, such as police use when they do not have handcuffs, which had apparently been used to tie

up the victims. Officer Falcone stated that the Defendant said little at first, but eventually admitted

the location was used as a “numbers house.” Falcone testified that the Defendant admitted he was

counting the daily numbers slips at the time of the robbery.

Chris Hendry, an officer with the Nashville Metropolitan Police Department, testified that

he also investigated the January 6, 2001, robbery at 2602 Belmont Boulevard. He stated that he and

Officer Daniel Schager rode to the scene together, where they met another officer and the Defendant.

He stated that the officers then approached the house and knocked on the door, and two women came

out and had a brief conversation with the officers about the possibility of one or more suspects still

being in the house. He asserted, “Nobody could state for a fact . . . that the suspect had an

accomplice or not or whether or not that person could be in the house.”

Officer Hendry testified that the officers then entered the house to ensure that there were no

other suspects inside. He testified that upon entering, he found in plain view a series of calculators

and numbers paraphernalia on tables. He also stated that in the kitchen, they found several open

brown paper bags containing number slips and tickets. He explained that a numbers ticket is a

receipt from a wager in which people bet that certain numbers will come up on a specified lottery

on a specified date. He claimed he had seen thousands of slips such as the ones he was describing

and that these particular slips had money amounts on them.

-2-

Officer Hendry reiterated his earlier statement that two women were inside the house, but

stated that he had limited contact with them. He testified that when the women were asked to come

outside to speak with the officers, they walked out the front door and pulled it closed behind them.

He stated that the Defendant actually took him into the house. Although Officer Hendry described

it as a residence, he noted that it actually appeared to be strictly a “counting house,” as there was no

bedding, furniture for sleeping, plates, or china. He acknowledged that he did not do any paperwork

on the case, but testified from memory, using others’ materials to refresh his memory as to the date

and time of the incident.

Ryan Sledge, another officer with the Metropolitan Nashville Police Department, testified

that he was also involved in the January 6, 2001, investigation at 2602 Belmont Boulevard. In

describing the scene inside the house, he noted several tables lined up together, paper, and

calculators. He testified that the officers looked inside the house to ascertain whether there were any

other suspects still in the house because the victims were unsure whether any suspects remained.

He acknowledged that a sweep of the house did not provide any robbery suspects. He identified the

Defendant in court as having been the man in the house with the two women that day. On cross-

examination Officer Sledge testified that he made no written memorandum of the described events

other than some citations. He had with him at trial an extensive file of the case that he received from

the prosecutor and that he used to refresh his memory, although he acknowledged that he wrote only

the two pages of citations in the file.

Daniel Schager, a law enforcement officer of eleven years, estimated that he had investigated

fifty or more numbers cases. He testified that around 10:00 p.m. on January 6, 2001, he responded

to a call about an armed robbery at 2602 Belmont Boulevard. He stated that the door was partly open

when he arrived, so he opened it and found a woman standing inside with her nose to the wall. She

was apparently reluctant to turn around until Officer Schager got her attention and told her he was

a police officer. He stated that she was also reluctant to say anything. He testified that she said she

did not know whether anyone else was in the house, so at that point, the officers performed a

protective sweep to ascertain the occupants of the house.

Officer Schager testified that during the sweep, he noted that there was “paper . . . on the

windows so it was only lit up by electric lights.” He described two banquet-style tables, adding

machines, rolls of paper, rubber bands, pens, and four chairs. In his opinion, it did not appear to be

a residence. In court, he identified the Defendant as having been at the house that night. He testified

that although the Defendant made no statements directly to him, he overheard the Defendant say that

the house was a numbers counting house.

Officer Schager testified that inside the kitchen, he saw grocery bags full of numbers and

numbers slips with dates in organized bundles. He identified the bags in court and described them

as bearing the initials ‘DJ,’ which he understood to mean the Dow Jones Industrial Average. He

gave his opinion that the slips and receipts bore initials to identify certain people and that the

numbers were for a lottery in another state. He estimated that he saw thousands of tickets in the

house the night of the incident.

-3-

Jonathan Riggs, also of the Metropolitan Nashville Police Department, testified that he was

in charge of collecting and maintaining the evidence from the 2602 Belmont. At trial, he identified

a number of calculators and a telephone recovered from the house. He also testified to finding trash

bags full of tickets, envelopes, letters, numbers, and office supplies, such as paper for the calculators.

Subsequent to his in-court identification, the evidence recovered from the house was entered as

exhibits.

After an offer of proof, the court permitted Officer Milton Elrod to testify about his

experience and training and about the significance of the records and evidence gathered from 2602

Belmont. Although all gathered evidence was filed with the record, including number slips dated

prior to January 6, 2001, the court limited Officer Elrod’s testimony to the evidence dated January

6. The court also limited the evidence for the jury’s viewing to the numbers slips dated January 6,

in addition to the calculators and other office supplies.

Officer Milton Elrod testified that he worked in the gambling squad of the Vice Division of

the Metropolitan Nashville Police Department. He stated that he had been a police officer for

seventeen years and had investigated gambling operations for five years, and that he had been

involved in hundreds of gambling investigations and the execution of related search warrants.

Regarding the evidence in this particular case, he explained that the ‘MD’ marking on the tickets

denoted a mid-day Illinois lottery. He said that numbers operations usually play Dow Jones, but that

was only available on weekdays. He also explained that coding on the tickets indicated where the

purchasers went to buy them and redeem winners. He explained that the custom in the business was

to use red ink to mark groups of tickets and denote winners, as was apparently done on the tickets

found on January 6. He also explained that the remaining letters on the tickets were probably

people’s initials or abbreviated names. Finally, he explained that the markings on the back of

winning tickets denoted the amount bet, the amount won, and the winning numbers.

II. Analysis

A. Suppression of Evidence

On appeal, the Defendant contends that the trial court erred in refusing to suppress two forms

of evidence at trial: fruits of a warrantless search and incriminating statements made by the

Defendant when confronted with the fruit of that warrantless search without first having received

his Miranda warnings. However, with regard to the Defendant’s statements to officer Falcone, we

conclude that the Defendant waived this issue. Our review of the record indicates that the Defendant

failed to raise this issue in his motion for new trial. Consequently, it is waived. See Tenn. R. App.

P. 3(e) (stating that “An appeal as of right to the . . . Court of Criminal Apeals shall be taken . . .

[p]rovided, however, that in all cases tried by a jury, no issue presented for review shall be

predicated upon an error . . . or other ground upon which a new trial is sought, unless the same was

specifically stated in a motion for new trial; otherwise such issues will be treated as waived”); State

v. Caughron, 855 S.W.2d 526, 538 (Tenn. 1993). Having so determined, we proceed to the issue

of the admissibility of fruits of the warrantless search.

-4-

When reviewing a trial court’s ruling on a motion to suppress, “[q]uestions of credibility of

the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are

matters entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). Findings of fact made by a trial court in ruling on a motion to suppress are binding upon this

court unless the evidence preponderates against the findings. See id. However, “[t]he application

of the law to the facts found by the trial court . . . is a question of law which this court reviews de

novo.” State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

Specifically, Defendant argues that the search conducted of 2602 Belmont was warrantless,

nonconsensual, and did not fall within any of the recognized exceptions to the Fourth Amendment

protection against unreasonable searches and seizures and, as such, that all evidence derived from

that search is inadmissible. The Fourth Amendment to the United States Constitution, made

applicable to the states by the Fourteenth Amendment, provides:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the person or things to be seized.

Article I § 7 of the Tennessee Constitution provides that:

[P]eople shall be secure in their persons, houses, papers and possessions, from

unreasonable searches and seizures; and that general warrants, whereby an officer

may be commanded to search suspected places, without evidence of the fact

committed, or to seize any person or persons not named, whose offences are not

particularly described and supported by evidence, are dangerous to liberty and ought

not to be granted.

Both of these constitutional provisions are intended to “‘safeguard the privacy and security of

individuals against arbitrary invasions of government officials.’” State v. Randolph, 74 S.W.3d 330,

334 (Tenn. 2002) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)).

Under both the federal and state constitutions, warrantless searches are presumed

unreasonable, and evidence obtained from such a seizure should be suppressed unless the State

demonstrates by a preponderance of the evidence that the search or seizure was conducted pursuant

to one of the narrowly defined exceptions to the warrant requirement. See Coolidge v. New

Hampshire, 403 U.S. 443, 454-55 (1971); Yeargan, 958 S.W.2d at 629. The main exceptions to the

requirement for a search warrant are: (1) consent; (2) incident to a lawful arrest; (3) probable cause

to search with exigent circumstances; (4) in hot pursuit; (5) a stop and frisk situation; and (6) plain

view. See State v. Bartram, 925 S.W.2d 227 (Tenn. 1996); see also Taylor v. State, 551 S.W.2d 331,

334 (Tenn. Crim. App. 1976). “If the circumstances of a challenged search and seizure come within

one of the recognized exceptions, the fruits of that search and seizure are not subject to operation of

-5-

the exclusionary rule and may be properly admitted into evidence.” State v. Shaw, 603 S.W.2d 741,

742-43 (Tenn. Crim. App. 1980).

The search in this case was permissible under the warrant requirement exception of probable

cause to search with exigent circumstances. “[P]olice officers may not enter a suspect’s home to

make a warrantless arrest, even if the arrest is based on probable cause, unless there are exigent

circumstances excusing the necessity of a warrant.” State v. Elliott, No. W1999-00361-CCA-R3-

CD, 2001 Tenn. Crim. App. LEXIS 9, at *10 (Tenn. Crim. App. Jan. 5, 2001); see also Payton v.

New York, 445 U.S. 573, 590 (1980).1 “Exigent circumstances are limited to three situations: (1)

when officers are in ‘hot pursuit’ of a fleeing suspect; (2) when the suspect presents an immediate

threat to the arresting officers or the public; or (3) when immediate police action is necessary to

prevent the destruction of vital evidence or thwart the escape of known criminals.” State v. Givens,

No. M2001-00021-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 920, at *10 (Tenn. Crim. App. Nov.

29, 2001); see also Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir. 1989). “The mere existence of

these circumstances does not necessarily validate a warrantless search. . . . There must be a showing

by those asserting the exception that the exigencies of the situation made the search imperative.”

Yeargan, 958 S.W.2d at 635.

The burden of justifying a warrantless search under the exigent circumstances exception rests

upon the prosecution, and courts must conduct a two-step inquiry to determine whether that burden

has been met. State v. Findley, No. 03C01-9406-CR-00194, 1995 Tenn. Crim. App. LEXIS 205,

at *6-7 (Tenn. Crim. App. Mar. 14, 1995) (referring to People v. Duncan, 720 P.2d 2, 5 (Cal. 1986)).

First, the Court must look “to what the officer knew or believed and what action he

took in response.” Then the Court must determine the legal question of “whether that

action was reasonable under the circumstances.” “As a general rule, the

reasonableness of an officer’s conduct is dependent upon the existence of facts

available to him at the moment of the search or seizure which would warrant a man

of reasonable caution in the belief that the action taken was appropriate.” In

determining whether the officer acted reasonably, due weight must be given to “the

reasonable inferences which he is entitled to draw from the facts in light of his

experience.” This does not mean he can point to “unparticularized suspicions,” or

“hunches,” but he must be able to point to specific and articulable facts from which

he concluded that his action was necessary.

Findley, 1995 Tenn. Crim. App. LEXIS 205, at *6-7 (citing Duncan, 720 P.2d at 5). The Supreme

Court has upheld a warrantless search under the exigent circumstances exception where police were

informed that an armed robbery had taken place and had reasonable belief as to the suspect’s

location, declaring that “speed . . . was essential, and only a thorough search of the house for persons

and weapons could have insured that [the defendant] was the only man present and that the police

1

Pro bab le cause is “a reasonable ground for suspicion, supported by circum stances indicative of an illegal act.”

State v. Henning, 975 S.W .2d 2 90, 2 94 (Tenn. 19 98).

-6-

had control of all weapons which could be used against them or to effect an escape.” Maryland

Penitentiary v. Hayden, 387 U.S. 294, 299 (1967).

In this case, the Defendant himself called 911 in response to an armed robbery and requested

assistance. As a citizen informant, his statements were presumptively reliable. See State v. Cauley,

863 S.W.2d 411, 417 (Tenn. 1993); see also State v. Moon, No. 01C01-9401-CC-00023, 1994 Tenn.

Crim. App. LEXIS 570, at *7 (Tenn. Crim. App. Sept. 1, 1994).2 Upon arriving on the scene,

Officer Schager found the door to the house ajar, opened it further, and found one of the female

victims inside the doorway with her nose to the wall in a fearful state. Although the Defendant told

the officers that the robber had already left, neither he nor either of the female victims was able to

state for a fact that there had been only one robber or that there were no longer suspects in the house.

These circumstances constituted probable cause for the police to enter the house and ensure that their

safety and the safety of those inside the house was no longer in danger. Further, the “exigent

circumstances” element of this exception was met by the uncertainty of whether or not any criminals

remained in the house, and by extension, the uncertainty of whether the officers and others present

were faced with an immediate threat. Additionally, such search may have been necessary to prevent

the escape of any robbers if there had been more than one, a fact unknown at the time.

Once the officers were lawfully inside the house, they could seize the evidence found under

the authority of the other previously discussed exceptions to the warrant requirement, under the plain

view doctrine and within the bounds of a protective sweep. “It is well established that under certain

circumstances the police may seize evidence in plain view without a warrant . . . . Where the initial

intrusion that brings the police within plain view of such an article is supported, not by a warrant,

but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.

. . . [T]he ‘plain view’ doctrine has been applied where a police officer is not searching for evidence

against the accused, but nonetheless inadvertently comes across an incriminating object.” Coolidge,

403 U.S. at 465-466.

It appears from the record that much of the gambling paraphernalia seized by the officers in

this case was found in plain view when the officers entered the house. Some of the seized evidence

was found in the kitchen; however, even it was lying openly on the floor. All officers testified to

seeing the tables, calculators, bags of numbers tickets, and other various office supplies upon first

entering the house. Their assessments as to the lack of customary living amenities was also based

on a plain view assessment of the house. Although the material ultimately seized was not the object

of the officers’ search, it was incriminating evidence found after the initial permissible intrusion into

the house and was therefore subject to seizure under the plain view doctrine.

2

In this case, the Defendant was acting as a citizen/bystander witness when he called 911. Information received

from a citizen informant is presumptively reliable and is not subject to the two-prong Aguillar-Spinelli test of reliab ility

that applies to information received fro m co nfidential informants. Cauley, 863 S.W.2d at 417; see also Spinelli v. United

States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).

-7-

B. Sufficiency of Evidence

The Defendant next contends that the evidence adduced at trial was insufficient to sustain

his conviction for aggravated gambling promotion. When an accused challenges the sufficiency of

the evidence, an appellate court’s standard of review is whether, after considering the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443

U.S. 307, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to

findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct

and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

However, before the accused may be convicted from purely circumstantial evidence, “the

circumstances must be so strong and cogent as to exclude every other reasonable hypothesis save the

guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford, 470 S.W.2d 610, 612

(Tenn. 1971).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions

concerning the credibility of the witnesses, the weight and value of the evidence, as well as all

factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.

This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant

removes the presumption of innocence and raises a presumption of guilt, the convicted criminal

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. Id.

Aggravated gambling promotion, a Class E felony, occurs when “[a] person . . . knowingly

invests in, finances, owns, controls, supervises, manages or participates in a gambling enterprise.”

Tenn. Code Ann. § 39-17-504(a), (c). “Gambling enterprise” is defined as “two (2) or more persons

regularly engaged in gambling promotion . . . .” Tenn. Code Ann. § 39-17-504(b). Gambling

promotion, a Class B misdemeanor, is defined as follows:

(a) A person commits an offense who knowingly induces or aids another to engage

in gambling, and: (1) Intends to derive or derives an economic benefit other than

personal winnings from the gambling; or (2) Participates in the gambling and has,

other than by virtue of skill or luck, a lesser risk of losing or greater chance of

winning than one (1) or more of the other participants.

Tenn. Code Ann. § 39-17-503.

-8-

In the present case, the officers went to 2602 Belmont Boulevard in response to a 911 call

regarding an armed robbery. On the way there, Officer Falcone discovered the Defendant on a side

street and took him back to the location. When all officers arrived at the house, they found two

women inside and asked them to come out. Neither the women nor the Defendant could state for

a fact that there had been only one perpetrator, or that the house was by then free of robbers. Despite

their lack of a search warrant, the officers then proceeded to do a protective sweep of the house to

ensure that no dangerous suspects remained inside and that no one’s safety was at risk. This search,

as previously discussed, was proper and permissible.

Once inside the officers discovered in plain view tables, calculators, pens, a phone, chairs,

bags of envelopes and numbers tickets, and ties that had allegedly been used to bind the robbery

victims. Officer Elrod testified, based on his experience in hundreds of numbers investigations, that

tickets found in the house were numbers tickets, and explained that their markings denoted amounts

and numbers bet and locations for redeeming winning tickets. He further testified that markings

customarily used in the illegal business were found on the tickets, envelopes, and bags, including

red ink to mark winning tickets and initials indicating certain lotteries or the Dow Jones as the basis

for determining winners.

The Defendant was present in the house at the time of the robbery and made the 911 call.

Two other women were inside the house when the officers arrived. The wealth of physical evidence

found in the house could support a finding that the people present “regularly engaged in gambling

promotion.” Tenn. Code Ann. § 39-17-504(b). Given these circumstances, the evidence was

sufficient to sustain a finding of the Defendant’s guilt on the charge of aggravated gambling

promotion.

The trial court judge explicitly acknowledged that “this is a circumstantial case if it’s

anything.” It is true that “when a case is made by circumstantial evidence alone, . . . the

circumstances must be so strong and cogent as to exclude every other reasonable hypothesis save the

guilt of the defendant, and that beyond a reasonable doubt.” Crawford, 470 S.W.2d at 612.

However, the evidence when taken together was sufficient to overcome even this higher burden. The

Defendant had been at the house when it was robbed, and he made the 911 call. The responding

officers found no evidence in the house consistent with residential use; instead, everything found was

indicative of a gambling operation. Officer Elrod’s testimony thoroughly described the numbers

tickets, their markings, and how they are played. A jury could come to no other reasonable

hypothesis other than that the Defendant was engaged in aggravated gambling promotion.

Accordingly, we AFFIRM the judgment of the trial court.

___________________________________

ROBERT W. WEDEMEYER, JUDGE

-9-