State v. Green

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED

APRIL 1997 SESSION

March 27, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. No. 03C01-9610-CR-00379

)

Appellee, ) HAMILTON COUNTY

)

VS. ) HON. STEPHEN M. BEVIL, JUDGE

)

MICHAEL DEANGELO GREEN, ) (Murder First Degree, Criminal

) Attempt: Especially Aggravated

Appellant. ) Robbery, Aggravated Robbery- 6

) Counts, Aggravated Assault- 2

) Counts, Theft- 2 Counts)

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD T. LANDIS JOHN KNOX WALKUP

Suite 327, Doctors Building Attorney General and Reporter

744 McCallie Avenue

Chattanooga, TN 37408 MICHAEL J. FAHEY, II

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

GARY D. GERBITZ

District Attorney General

DAVID DENNY

Assistant District Attorney General

Suite 300, Court Building

Chattanooga, TN 37402

OPINION FILED:

AFFIRMED

CHRIS CRAFT,

SPECIAL JUDGE

OPINION

The defendant, Michael Deangelo Green, was tried by a Hamilton County jury

on twelve indictments, all consolidated for trial, which resulted from a crime spree

committed between July 6 and July 11, 1993. The indictment numbers, dates of

offense, resulting convictions and name of each victim are set out below:

Indictment # Date Offense Charged Victim

204819 7/6/93 Theft over $1,000 Melinda Davidson

204813 7/6/93 Aggravated Robbery Earl Guilmenot

204814 7/6/93 Aggravated Robbery Michelle Morgan

204816 7/6/93 Aggravated Robbery Ginger Brown

204817 7/6/93 Aggravated Robbery Kristi Wilson

204818 7/7/93 Aggravated Robbery Jason Peace

204820 7/7/93 Murder First Degree Jeffrey Wolfe

204812 7/7/93 Criminal Attempt, to wit: Jeffrey Wolfe

Esp. Aggravated Robbery

200144 7/11/93 Theft over $500 Minnie Hewlett

200090 7/11/93 Aggravated Assault Lashanna Acklin

200091 7/11/93 Aggravated Assault Lorenzo Suttles

200089 7/11/93 Aggravated Robbery William Townsend

Proof at the trial showed that on July 6, 1993, appellant, along with four other

young men, stole Ms. Davidson’s car, then stopped a pedestrian, Mr. Guilmenot, and

forced him to disrobe, robbing him of his clothes at gunpoint. They then forced Ms.

Morgan’s car off the road into a ditch, and robbed her of her purse. Next they forced

Ms. Brown and Ms. Wilson off the road, taking money from Ms. Wilson and the car

from Ms. Brown, abandoning Ms. Davidson’s car. Shortly after midnight they pulled

in front of Mr. Peace’s car and robbed him at gunpoint of his wallet, some money and

a radio. Appellant next approached Mr. Wolfe and his wife, who were stopped at a red

light, put a gun to Mr. Wolfe’s head and demanded that they get out of the car. The

gun went off, killing Mr. Wolfe. Appellant and the other young men then fled. Three

days later, on July 11, 1993, appellant and some of the same young men stole another

car belonging to Ms. Hewlett, and in the process of driving it around, pointed guns at

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two pedestrians, forcing Ms. Acklin to disrobe and beating Mr. Suttles unconscious.

They then forced Mr. Townsend off his porch and robbed him at gunpoint of $50 in

cash and $200 in food stamps. The police soon pulled in behind them, and

apprehended them after a chase. Appellant was the leader, always displayed a

firearm, and was the driver of all the cars used in the crimes.

Appellant appeals as of right from those verdicts and presents four issues for

our review:

(1) whether it is constitutionally permissible to try appellant in state court

following his federal court trial on the same facts,

(2) whether the trial court erred in denying a change of venue due to extensive

pretrial publicity,

(3) whether the trial court erred in failing to strike the testimony of a witness, or

in the alternative, to grant a mistrial, when the State failed to turn over a prior

statement of that witness upon request, after his testimony, and

(4) whether the trial court erred in failing to grant appellant’s motion for judgment

of acquittal as to three of the indictments.

APPELLANT’S FEDERAL TRIAL

Appellant was first tried in the United States District Court for the Eastern

District of Tennessee on a six count indictment charging him with conspiracy to commit

armed carjacking resulting in death, the basis for that indictment being the offenses

committed July 6-7, 1993, the subject of eight of the Hamilton County indictments.

Appellant was convicted in federal court, and was sentenced on September 12, 1994,

to life plus 25 years in the penitentiary for those offenses. He now complains that

retrying him for those same offenses in state court constitutes double jeopardy and

violates his right to due process.

The longstanding principle of dual sovereignty contemplates that a conviction

for the same identical offense by a court of another sovereign does not constitute

double jeopardy. Raybin, Tennessee Criminal Practice and Procedure, § 16.112

(1984 & Supp. 1997). The Tennessee Supreme Court, in Lavon v. State, 586 S.W.2d

112, 113-114 (Tenn. 1979), held that

[t]here is no question but that such a procedure does not subject the

defendant to double jeopardy insofar as the guaranty of due process in the 14th

amendment of the federal constitution is concerned. Bartkus v. Illinois, 359 U.S.

121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). While the rationale of this case -- that

the state and federal governments are distinct sovereignties, and thus the

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punishment of a single act by each is not double jeopardy -- has been criticized,

a similar approach has provided the basis for a more recent case, which would

imply that Bartkus' analysis of the issue is still valid. See United States v.

Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). This court is

bound by the decisions of the United States Supreme Court concerning the

proper interpretation of the federal constitution. Townsend v. Clover Bottom

Hospital and School, 560 S.W.2d 623 (Tenn.1978).

The double jeopardy provision of the Tennessee constitution, Article I,

§ 10, affords the defendant no greater protection. In the past, this provision has

been interpreted to permit successive state and federal prosecutions on the

basis of the same "dual sovereignties" analysis employed in Bartkus, supra,

and, given the need for stability in constitutional interpretation, we see

insufficient cause to depart from that precedent now.

See also Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).

Thus, in violating the laws of two sovereigns, appellant can be successively prosecuted

under the laws of both without subjecting him to double jeopardy. State v. Wyche, 914

S.W.2d 558, 561 (Tenn. Crim. App. 1995).

Furthermore, appellant was convicted in federal court of conspiracy to commit

carjacking while possessing a loaded firearm, which is a different offense from the

ones charged in the Hamilton County indictments. “On examination of the predicate

federal charges as contrasted with the State charges it is readily apparent that distinct

substantive offenses are laid by the federal indictment and the State [indictments.]

One factual base may be the foundation for multiple substantive offenses with distinct,

separate, and indispensable elements. Conspiracy charges are distinct from charges

of the consummated substantive offenses.” State v. Frank Mongione, No. 115 (Tenn.

Crim. App, Knoxville, January 31, 1991). Therefore, no due process or double

jeopardy problem arises from the subsequent state prosecution.

DENIAL OF CHANGE OF VENUE

Appellant filed a motion for change of venue due to the pretrial publicity given

the murder and the subsequent federal trial. At the hearing on the motion, appellant

requested that the trial judge reserve the motion for change of venue until the day of

trial, to see whether or not appellant could get an untainted jury. During the voir dire,

forty eight of the jurors, approximately half, indicated they had heard something about

the murder, and they were then individually voir dired by the trial judge and attorneys

concerning their knowledge of the case, and their ability to be fair. Only two jurors had

to be excused because they indicated that they had followed the case, were familiar

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with the details, and had formed an opinion of appellant’s guilt. Two jurors were also

excused for other reasons, one because he knew the victims, and another because

he had been a witness in a trial concerning his neighbor’s murder. All the other jurors

examined indicated that they remembered no details other than that a man had been

killed during an attempted car theft, and all indicated that they could give appellant a

fair trial. None of the jurors examined had any knowledge of appellant’s federal trial

or conviction. The trial judge therefore found that appellant could get a fair jury without

a change of venue, and denied the motion. A jury of twelve, plus three alternates, was

selected and sworn, only seven peremptory challenges having been exercised by both

sides combined.

Appellant has not established that his jury was tainted by the pre-trial publicity.

Whether to change venue because the jury might not be impartial is a matter which

addresses itself to the sound discretion of the trial court; the appellate court will not

interfere with the exercise of discretion absent clear abuse. State v. Melson, 638

S.W.2d 342, 360 (Tenn. 1982), cert. denied, 459 U.S. 1137, 74 L. Ed. 2d 983, 103 S.

Ct. 770 (1983). Generally, the accused must demonstrate that the jurors who heard

the case were biased or prejudiced because of pre-trial publicity. A long list of factors

to consider in deciding whether venue should be changed is contained in State v.

Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979). Prejudice will not be

presumed on the mere showing that there was considerable pre-trial publicity.

Extensive knowledge in the community of the crimes of the alleged offender is not

sufficient by itself to render a trial constitutionally unfair. State v. Stapleton, 638

S.W.2d 850, 856 (Tenn. Crim. App. 1982), citing Dobbert v. Florida, 432 U.S. 282,

303, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977); see also State v. Kyger, 787 S.W.2d 13,

19 (Tenn. Crim. App. 1989). Here, the petitioner failed to demonstrate the kind of bias

or prejudice that would have precluded a fair trial.

INTERVIEW SUMMARY OF THADDEUS DANIEL

The first witness called by the state was Thaddeus Daniel, one of the juveniles

who accompanied appellant during the series of crimes for which he was on trial.

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Daniel indicated during his testimony that he had also “told what happened” when he

was in juvenile court, prior to being offered a 20 year settlement. At the conclusion of

direct examination, but prior to cross-examination, appellant’s attorney informed the

trial judge in front of the jury that he needed time to review the witness’s “rather lengthy

previous statement.” The state then informed the trial judge, also in front of the jury,

that the defense had possessed the statement for some time. After both attorneys

were asked to approach the bench, the state accused appellant’s attorney of

“theatrics.” Appellant’s attorney then admitted that he had already possessed a copy

of Daniel’s prior testimony from the federal trial, but that he had never been given any

statements from juvenile court. The state responded that there were no juvenile court

statements. Because of the confusion of whether or not the witness had made

statements during a juvenile court proceeding, or had just made statements during the

time his case was still being handled in juvenile court, the witness was recalled to clear

the matter up and testified that he meant that he had told “the federal people” what had

happened, before agreeing to his offer of settlement. The following exchange then

took place between the court and appellant’s attorney, prior to cross-examination:

THE COURT: .... All right, is there anything else that needs to be taken up with

reference to the statement issue?

Does that clarify it, Mr. Landis?

MR. LANDIS: Yes, it does, Judge.

THE COURT: Okay.

MR. LANDIS: That’s the first I’d heard of anything in juvenile court.

Appellant did not make a request for any statements given by this witness to “the

federal people,” at this time, but instead proceeded with the cross-examination of the

witness.

One of the last witnesses called by the state in its proof was Wayne Jackson,

an FBI agent, who testified on cross-examination that he interviewed Daniel in

February 1994, and later reduced that interview to a “summarization,” called an “FD-

302.” He was asked repeated questions by appellant about what Daniel told him in

this interview, and repeatedly suggested to appellant’s attorney that he be allowed to

review the summarization to aid his testimony. Appellant’s attorney finally agreed, and

the state passed the document to the witness, who proceeded to testify from it.

Although appellant’s attorney thanked the state for passing the document to the

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witness, and so obviously knew of its existence, he never asked to be allowed to see

it, and never objected to its being given to agent Jackson. At no time did the defense

appear to be surprised by the existence of the “FD-302" of Thaddeus Daniel.

At the end of the state’s proof, appellant moved for a mistrial on the basis that

the state had failed to produce this document after Daniel’s testimony, pursuant to

Rule 26.2 of theTennessee Rules of Criminal Procedure, also known as the

“Tennessee Jencks Act.” Section (a) of that rule provides:

Motion for Production. - After a witness other than the defendant has testified

on direct examination, the trial court, on motion of a party who did not call the

witness, shall order the attorney for the state or the defendant and the

defendant's attorney, as the case may be, to produce, for the examination and

use of the moving party, any statement of the witness that is in their possession

and that relates to the subject matter concerning which the witness has

testified.

Section (e) of that same rule provides for sanctions for noncompliance, as

follows:

Sanction for Failure to Produce Statement. If the other party elects not to

comply with an order to deliver a statement to the moving party, the court shall

order that the testimony of the witness be stricken from the record and that the

trial proceed, or, if it is the attorney for the state who elects not to comply, shall

declare a mistrial if required by the interest of justice. (emphasis supplied)

Appellant, in a prior motion hearing, had already been granted production of all

Jencks material by the trial court. It is the contention of appellant that the “FD-302"

written by Agent Jackson was a prior statement of the witness, and therefore its

nonproduction should have resulted in a mistrial, in that Daniel was a crucial witness

for the state and the statement reveals that Daniel was granted federal immunity for

his federal grand jury testimony. The trial court, after a hearing, ruled that the “FD-

302" was a statement that should have been provided to the defense under Rule 26.2,

but also noted that there was some confusion as to this issue since the federal

authorities apparently did not consider it a statement for their trial purposes. The court

then found that there was no wrongdoing on the part of the state, or any intent to keep

the statement from the defense, but that it was “more of a matter of misunderstanding

and confusion,” and declined to impose sanctions. The trial judge did, however,

reopen the state’s proof in the interest of fairness, recalled Daniel, and allowed

appellant to cross-examine him with the summarization of the agent’s interview of

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Daniel.

As seen from the trial record, although appellant knew of the existence of this

document, and allowed it to be passed to a witness during testimony, he never asked

the trial court to order its production for examination. This Court also respectfully

disagrees with the trial court’s finding that the summarization in question was a

“statement” as defined by Rule 26.2. Section (g) of that rule states:

Definition. As used in this rule, a "statement" of a witness means:

(1) A written statement made by the witness that is signed or otherwise adopted

or approved by the witness; or

(2) A substantially verbatim recital of an oral statement made by the witness

that is recorded contemporaneously with the making of the oral statement and

that is contained in a stenographic, mechanical, electrical, or other recording or

a transcription thereof. (emphasis supplied)

The document at issue was a summarization written by an FBI agent after

interviewing Daniel, which was later transcribed as a record of his interview with this

witness. It was not a “substantially verbatim recital” of the interview, nor was it

“recorded contemporaneously.” Even actual notes an investigator made while

interviewing a witness do not qualify under the definition of a "substantially verbatim

recital" of a witness's oral statement under Rule 26.2 (g). State v. Payton, 782 S.W.2d

490, 494-95 (Tenn. Crim. App. 1989). This statement was only a summary, and was

the statement of an FBI agent, not Thaddeus Daniel.

There is also no evidence in the record that Daniel ever adopted, approved, or

even knew of the summary’s existence. Rule 26.2 was formerly contained in Rule

16(E). Prior to its separation from our Discovery Rule and its renumbering, there was

a great deal of confusion among the bench and bar as to what was discoverable

pretrial, and what was “Jencks material,” and therefore only discoverable after direct

testimony of a witness. In State v. Robinson, 618 S.W.2d 754, 759 (Tenn. Crim. App.

1981), this Court attempted to resolve the confusion, and held that under then Rule

16(E) a summary of a witness's pre-trial statement would not be subject to inspection

under the "Jencks Act" unless it were signed, adopted or approved by the witness.

Although the state might in some situations be under a duty to turn a statement of this

type over to the defense, due to its exculpatory nature, for instance, or for other

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legitimate reasons, the state was under no obligation here to furnish a copy of this

summary to the defense as “Jencks material” under Rule 26.2.

Even if we held the “FD-302" of Daniel’s interview to be a prior statement under

the rule, the action of the trial judge in recalling the witness for additional cross-

examination prior to the beginning of defense proof insured that a mistrial would not

be “required by the interest of justice” pursuant to Rule 26.2 (e), as there was no

prejudice to appellant.

MOTION FOR JUDGMENT OF ACQUITTAL

Appellant alleges that the trial judge should have granted his motion for

judgment of acquittal as to two indictments due to insufficiency of the evidence: the

Aggravated Assault upon Lorenzo Suttles, and the Aggravated Robbery of Kristi

Wilson. Appellant further claims that the conviction for Criminal Attempt, to wit:

Especially Aggravated Robbery should not stand in light of his conviction for Felony

Murder on the same facts.

The indictment charging the Aggravated Assault alleges that appellant caused

“Lorenzo Suttles to reasonably fear imminent bodily injury by use of a deadly weapon.”

Although Mr. Suttles did not testify, his companion Lashanna Acklin did testify that

while walking with Mr. Suttles, five young men exited a car, forced her to completely

disrobe at gunpoint and forced Mr. Suttles to remove his clothes, beating him

unconscious. She identified a photo of the car in which appellant was arrested shortly

after the assault as being the car the young men were driving. Two of those young

men, Thaddeus Daniel and Jermichael Young, identified appellant as the driver during

the assault, and testified that he had a gun, and was their leader. They stated that he

got out with them and stood in front of the station wagon with a ski mask on, holding

a .380 handgun, while the assaults took place.

The indictment charging Aggravated Robbery alleges that appellant

...did unlawfully, intentionally, knowingly, violently, by use of a deadly weapon

or by the display of any article used or fashioned to lead Kristi Wilson to

reasonably believe it to be a deadly weapon, and putting Kristi Wilson in fear,

take from her person money....

Although Ms. Wilson didn’t testify, her companion and driver, Ginger Brown, stated that

a car full of young men ran them off the road, and one of them made Kristi Wilson give

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him twenty dollars at gunpoint. They both were forced to sit on the ground while Ms.

Brown’s car was stolen, and Ms. Davidson’s previously stolen car was abandoned at

the scene. Thaddeus Daniel testified that appellant was the leader, was one of the two

men who got out of the car during the robbery, and was the driver of both cars.

Both of these incidents fit in with other witness testimony involving appellant in

other crimes near in time, with the same criminal actors in the same cars, with

appellant being the leader and driver.

In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor

may this court substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859

(Tenn. 1956). This court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Herrod, 754

S.W.2d 627, 632 (Tenn. Crim. App. 1988). Questions concerning the credibility of the

witnesses, the weight and value to be given the evidence, as well as all factual issues

raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas,

754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). A guilty verdict by the jury, approved

by the trial judge, accredits the testimony of the witnesses for the State and resolves

all conflicts in favor of the theory of the State. State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973).

Because a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused has the burden in this court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt

due to the sufficiency of the evidence unless the facts contained in the record and the

inferences which may be drawn from the facts are insufficient, as a matter of law, for

a rational trier of fact to find the accused guilty beyond a reasonable doubt. State v.

Matthews, 805 S.W.2d 776, 780 (Tenn. Crim. App. 1990). We find the facts shown

in the record sufficient to sustain these two convictions. Even though appellant was

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not identified as being directly responsible for these two particular crimes, there was

sufficient proof for the jury to find that he was “criminally responsible for an offense

committed by the conduct of another” pursuant to T.C.A. § 39-11-402.

Appellant also alleges in his brief that the jury “acquitted the defendant of the

count charging premeditated murder and convicted of felony murder. Consequently

the conviction for attempted especially aggravated robbery cannot stand.” We initially

note that appellant has cited no legal authority in support of his argument, which

results in a waiver. Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure.

Appellant also fails to state any legal grounds for this contention. In State v.

Blackburn, 694 S.W.2d 934 (Tenn. 1985), our Supreme Court held that the imposition

in a single trial of dual convictions for both felony murder and the underlying felony

does not violate constitutional prohibitions against double jeopardy, as the two statutes

are directed to “separate evils.” Id. at 936-37. See also State v. Barber, 753 S.W.2d

659, 671; State v. Zirkle, 910 S.W.2d 874, 890 (Tenn. Crim. App. 1995). This issue is

without merit.

Having found no reversible error in the court below, the judgment of the trial

court is therefore AFFIRMED.

CHRIS CRAFT, SPECIAL JUDGE

CONCUR:

JERRY L. SMITH, JUDGE

JOE RILEY, JUDGE

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