State of Tennessee v. Coy J. Cotham, Jr., also known as Cory J. Cotham

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 17, 2013 Session

STATE OF TENNESSEE v. COY J. COTHAM, JR.,

also known as CORY J. COTHAM

Appeal from the Criminal Court for Davidson County

No. 2010-C-2636 Cheryl A. Blackburn, Judge

No. M2012-01150-CCA-R3-CD - Filed July 31, 2014

Following a jury trial, the defendant, Coy J. Cotham, Jr., also known as Cory J. Cotham, was

convicted of first degree premeditated murder and especially aggravated robbery and

sentenced to life without parole and twenty-five years, to be served consecutively. On

appeal, he argues that the trial court erred in: (1) denying his motion to suppress evidence

seized pursuant to search warrants; (2) denying his motion to suppress Wi-Fi evidence; (3)

denying his motion to recuse; (4) concluding that the evidence was sufficient to sustain the

convictions; (5) allowing evidence of statements to the police by the victim’s husband; (6)

allowing evidence of threats made by the defendant; (7) allowing proof as to the affidavit of

indigency; (8) instructing the jury regarding parole; and (9) setting the defendant’s sentences

and determining that they would be served consecutively. We have carefully reviewed the

record and conclude that the defendant’s assignments of error are without merit.

Accordingly, the judgments are affirmed.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which JOSEPH M. T IPTON, P.J.,

joined. J EFFREY S. B IVINS, J., Not Participating.

Jeffrey A. DeVasher and William Allensworth (on appeal) and J. Michael Engle and Melissa

Harrison (at trial), Assistant Public Defenders, for the appellant, Coy J. Cotham, Jr., also

known as Cory J. Cotham.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Victor S. Johnson, III, District Attorney General; and Thomas Thurman, Bret T.

Gunn, Katrin N. Miller, and Janice Norman, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

FACTS

The crimes for which the defendant was convicted stem from the August 29, 2010

shooting death of the victim, Veronica Bozza, at her home in Hermitage, Tennessee. The

victim’s estranged husband, Timothy Roy Bozza, who testified as a State’s witness during

the defendant’s trial, also was indicted for first degree premeditated murder and tried

separately.

As we will set out, much of the evidence presented at the defendant’s trial resulted

from a series of back-and-forth cell phone calls between the defendant and Mr. Bozza, which

provided a partial basis for search warrant 406. The cell phone call records were obtained

by law enforcement officers pursuant to an exigent-circumstances request to the cell phone

provider, rather than a search warrant. Much of the defendant’s argument on appeal is based

upon his view that these records were obtainable only by a search warrant, and because law

enforcement officers bypassed this procedure, the cell phone call records and derivative

evidence were unlawfully obtained. Accordingly, we first will review the pretrial evidentiary

hearing on the defendant’s motion to suppress these records.

Suppression Hearing on Search Warrant No. 406

Detective Andrew Vallee of the Metropolitan Nashville Police Department (“MNPD”)

testified that, during the “late” evening on the day of the victim’s murder, he made an

exigent-circumstances request for the telephone records of the victim, her husband, and the

defendant. His request to the phone company was for historical cell site data and historical

call detail records. He obtained a search warrant the following day at the request of the lead

investigator, Detective Crumby. In the search warrant affidavit, he included information

from a local record check showing that the defendant had two convictions for aggravated

assault. Based on a document he received from the defendant’s Oregon parole officer and

information from an Internet website, Detective Vallee believed the defendant also had an

aggravated rape conviction although the documents stated the defendant had raped a

fourteen-year-old girl. He later learned the conviction was for statutory rape. He was unable

to conduct a NCIC check because he was not certified to do so.

On cross-examination, Detective Vallee said he requested the historical cell site data

pursuant to Title 18 of the United States Code, section 2703. His exigent-circumstances

request was “based on the fact that Mr. Bozza and [the defendant] had talked numerous times

and the fact we were lied to about how many times they had actually talked. And [the

defendant] and Mr. Bozza both talked immediately prior to and immediately after the

murder.” Detective Vallee explained that historical cell site data did not require triangulation

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in that it was “simply the tower that particular phone was hitting at the time.” He was able

to determine that the defendant’s and the victim’s cell phones1 “were hitting towers in the

same vicinity.”

Detective Andrew Injaychock of the MNPD testified that he provided information to

Detective Vallee for the search warrant and advised Vallee that he had observed scratches

on the defendant’s arms. He identified photographs depicting scratches on each of the

defendant’s forearms.

Garen Blanchard testified that he supervised the defendant’s parole after he was

transferred from Oregon. Blanchard said the defendant’s parole did not expire until March

17, 2012; therefore, he was on parole in August 2010. He identified the defendant’s

application for interstate transfer stating he agreed to abide by all the rules of both Oregon

and Tennessee. Blanchard conducted an intake interview with the defendant on May 21,

2010, at which time they discussed the Tennessee rules of parole to make sure the defendant

understood the insignificant differences between the Tennessee and Oregon rules. He said

the defendant next reported on June 4, July 12, and August 30, 2010. Upon questioning by

the trial court, Blanchard said he specifically recalled explaining to the defendant the

differences between the Oregon and Tennessee rules regarding searches without warrants.

Subsequently, the trial court entered a written order on April 26, 2011, denying the

defendant’s motion to suppress “on the basis Defendant was a parolee at the time of the

search and as part of his transfer to Tennessee he agreed to the warrantless search parole

condition. However, even if Defendant had not been a parolee or had not consented to

Tennessee parole conditions, the Court finds that the search warrant is valid and Defendant’s

motion is . . . denied on the merits.”

On January 24, 2012, the defendant filed a “Re-newed Motion to Suppress Search

Warrant #406 Pursuant to United States v. Jones, __ U.S. __, No. 10-1259 (Jan. 23, 2012).”

Finding that there was no “‘trespassory’ taking of the Defendant’s phone that would cause

this case to fall within the parameters of the Jones ruling,” the court denied the defendant’s

renewed motion by written order entered January 30, 2012.

Trial

State’s Proof

Lorenza Chiarmonte Pintar, the victim’s sister, testified that at the time of the victim’s

death, the victim and her husband were in the process of getting a divorce and were fighting

1

Officers determined, after discovery of the victim’s body, that her cell phone was missing.

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over custody of their son. Pintar had a lengthy telephone conversation with the victim the

evening of August 28, 2010, and received a voicemail message from her the next day around

noon.

Father Joseph Patrick Breen, the pastor at St. Edward’s Catholic Church and School,

testified that the victim was “a very strong, active member” of the church and that her son

was a student at the school. He last saw the victim on Sunday, August 29, 2010, as she was

leaving mass around 11:35 or 11:40 a.m.

Garnett Jagels, a friend of the victim, testified that the victim left her a voicemail

message on August 29, 2010, at 12:07 p.m. She said the call lasted about thirty seconds and

sounded like the victim was in her car.

Brian Robinson, the victim’s boyfriend, testified that he talked to the victim on her

cell phone, a white iPhone, at about 11:45 a.m. on August 29, 2010, and that they made plans

to drive to Fall Creek Falls that day. He stopped to get gas and snacks at 12:15 p.m. before

going to the victim’s house. When he arrived at the victim’s house five to ten minutes later,

he noticed that the garage door was open, which was unusual. The victim’s car was in the

garage, and her sunglasses were on the ground. Robinson saw her purse inside the car and

looked inside it for her cell phone. He entered the house through the back door and saw the

victim, who was bleeding, lying on the floor. Robinson called 9-1-1 at approximately 12:30

p.m., and the police arrived shortly thereafter. Robinson identified a towel that looked “very

similar” to the towel the victim kept in her computer cleaning kit.

Officer Jay Brandon Reed of the MNPD testified that he was the first officer to

respond to the crime scene, arriving at about 12:30 p.m. He briefly spoke to Mr. Robinson

outside and then went into the house where he discovered the deceased victim. He

questioned neighbors, but they had not seen or heard anything.

Detective Craig Christie of the MNPD testified that he arrived at the crime scene at

12:53 p.m. and found the victim lying on the living room floor with a pool of blood by her

head. He discovered a projectile on the floor next to the victim’s body, a hole in the

hardwood floor, and a spent shell casing on the floor next to the wall near the back door.

Officer Johnny Lawrence of the MNPD Technical Investigations Division testified

that he created a Panoscan2 image of the crime scene, which was admitted as an exhibit. He

described the appearance of the garage area and said it appeared some activity had occurred

2

The witness defined the Panoscan as “a camera that sits on a tripod that will take multiple pictures

400-degrees, once that is done, we use software to put that together, so you’re actually like you’re standing

inside of this photograph and this photograph can spin around, it’s like you’re inside . . . the actual scene.”

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near the front of the victim’s vehicle. Inside the vehicle was a woman’s purse on the

passenger’s seat. Shoes were scattered at the doorway while the rest of the house was neatly

organized. From his analysis of the scene, it appeared that the victim had hurriedly entered

the house and gone into the living room where there was a back door leading out to the patio.

The couch appeared to have been disturbed as if someone had lifted up the cushions looking

for something. Four projectiles and one shell casing were recovered from the scene. The

victim had two gunshot wounds to her head and gunpowder residue on her hand, indicating

that her hand was “very close to a weapon when it was fired.” Officers found money on a

counter in plain view a few feet from the victim’s body, $400 in an envelope, and a blank

check made payable to the victim from Mr. Bozza with the notation “for school fees.” It

appeared that the money had not been “searched through. . . . [I]t’s like it [was] not

important.”

Lynette Mace, a civilian employee of the MNPD Identification Unit, testified that she

prepared a diagram of the crime scene and processed the interior and exterior of the door

leading into the garage from the kitchen area for latent fingerprints. She also assisted Officer

Lawrence with lifting prints from the victim’s vehicle. She collected into evidence four

projectiles and one nine-millimeter shell casing. Two projectiles were recovered from holes

in the floor, a third from inside a storage box beside the couch, and the fourth from the floor

near the victim’s body. The shell casing was located against the shoe mold near the rear

patio door. She also collected hair from the victim’s right hand.

Officer George Nathaniel Ward, a crime scene investigator with the MNPD, testified

that he took photographs at the crime scene and collected latent fingerprints. Brenda Russell

of the MNPD Identification Unit testified that she examined the latent fingerprints collected

from the victim’s house and that the only fingerprints she was able to identify belonged to

the victim.

Officer Roy Morris of the MNPD Technical Investigations Section testified that he

collected DNA swabs from Mr. Bozza and Mr. Robinson, which were sent to the Tennessee

Bureau of Investigation (“TBI”) laboratory for testing.

Detective Johnny Ray Crumby, Jr. of the MNPD testified that he was one of the two

lead detectives assigned to investigate the homicide of the victim. He interviewed Mr. Bozza

and determined that he was not present during the victim’s murder based upon receipts and

store surveillance videotapes showing that he was at Holt’s Cee Bee Market at 12:35 p.m.

and at Lowe’s Home Improvement Center at 1:10 p.m. Detective Crumby reviewed

telephone records, which reflected numerous calls between Mr. Bozza and the defendant the

day of the murder. He said the defendant “became a person of interest . . . because it looked

like [the victim’s] cell phone was being used after the time of her death. And her cell phone

was using towers in the locations, exactly the same point, where [the defendant’s] cell towers

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were being used after the homicide.” Detective Crumby subsequently took a tape-recorded

statement from the defendant, which was played for the jury. Detective Crumby said that the

defendant’s statements were inconsistent and did not match the cell phone records the

officers had. The defendant was not arrested at that time, but his vehicle was seized.

After Detective Crumby executed a search warrant at the home of the defendant’s

mother, he began receiving threatening phone calls from the defendant who initially tried to

disguise his voice. The defendant told Detective Crumby that he knew where the detective’s

family lived, how old his son was, and what vehicles they drove. The defendant was later

arrested in Kentucky and transported back to Tennessee. As Detective Crumby was

escorting the defendant to the booking station, the defendant told him he knew also where

the detective’s son attended school.

Felicia Evans, a crime scene investigator with the MNPD, testified that she processed

the defendant’s Cadillac Escalade on August 30, 2010. She identified photographs of the

exterior and interior of the vehicle depicting, among other things, a black duffel bag

containing a pair of white tennis shoes, two used blue latex gloves, and a collapsible cooler

containing a black Nike hat and a Condor brand black tactical sleeve, which could be worn

around the head as a scarf or face mask; a pawn ticket transaction from Toliver’s Pawn and

Loan dated August 25, 2010; two brown towels found in the backseat; a cell phone charger

with a phone connected to it; a pair of black gloves; and a blue hand towel.

Timothy Bozza testified that he had been charged with the first degree murder of the

victim and that he was currently incarcerated. He said he and the victim had been married

about seventeen years and had one son. At the time of the victim’s death, they had been

separated about fourteen months and their divorce was close to being finalized. He

acknowledged that he and the victim “had an issue months before about the separation and

child custody” and that he lost a court hearing regarding custody arrangements for their son.

Mr. Bozza said that he had known the defendant for about thirteen years and that,

about ten years ago, the defendant had lived with him and the victim for a few months. The

defendant left Nashville for a period of time, and Mr. Bozza next saw him at the courthouse

the day of Mr. Bozza’s custody hearing. They renewed their friendship, and the defendant

began working for Mr. Bozza. Asked if he and the defendant had ever discussed killing the

victim, Mr. Bozza replied, “Well, yes, sir. I made a bad joke one day about a movie that –

in the middle of a session we were both complaining about.” He said that he brought up the

issue “in a moment of anger” and that it was then dropped. He denied offering the defendant

$10,000 to kill the victim. However, the defendant offered him $10,000 “to take care of

Laura Yancey . . . the girl who was living with husband who had custody of his son.” Mr.

Bozza said he told the defendant he “could never do anything like that.” Mr. Bozza denied

any knowledge of the defendant’s following the victim on numerous occasions prior to her

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death.

Regarding the day of the victim’s murder, Mr. Bozza acknowledged that he talked to

the defendant several times that day but said they only talked about “average bologna kind

of stuff.” He said he met the defendant at a grocery store near St. Edward’s Church, where

he was waiting to pick up his son from the victim. The defendant was driving a minivan that

belonged to the woman with whom he lived, Jennie. After they parted ways, the defendant

called Mr. Bozza and said that “it was done.” Mr. Bozza denied knowing what the defendant

was referencing because they had discussed “a number of things that day that could have fit

at that point in time.” He later called the victim’s cell phone and received a return call from

the defendant about an hour and a half later. The defendant told him to stop calling the

victim’s phone because he had it. He asked the defendant why he had the victim’s cell

phone, and the defendant told him that “he had taken care of [Mr. Bozza’s] problem and that

[the victim] wouldn’t be a problem for [him] anymore.” Mr. Bozza said that a few weeks

after the victim’s murder, the defendant came by his mother’s house and asked him for

$35,000.

Mr. Bozza acknowledged that he had had numerous meetings with the police and the

district attorney’s office but denied telling them that he had any knowledge of the victim’s

murder prior to its happening. A redacted portion of his November 16, 2010 videotaped

statement was then played for the jury. After the tape was played, the following colloquy

occurred:

Q. (By [the prosecutor]) Mr. Bozza, you admit that that’s inconsistent

with what you’ve testified to today, is it not?

A. Yes, sir. I was taking things in a different context. But, yes, sir.

Q. You were taking things in a different context today or then?

A. No, today, sir. That is clear what was said.

Q. That’s the truth?

A. Yes, sir, that’s what was said.

On cross-examination, Mr. Bozza said that he accepted responsibility for the

statement he made “that caused everything” but denied he was taking responsibility for

planning the murder of his wife. He admitted that he lied to Detective Crumby.

On redirect, Mr. Bozza admitted that his and the victim’s parenting plan required that

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they each carry life insurance in the amount of $350,000 payable to the other as trustee for

their child. Asked about what he said in his statement as to whether he told the defendant

he would give him $10,000 to kill the victim, Mr. Bozza said, “[W]hen he offered, I said, that

sounds like a good plan right there, but I can’t necessarily do that [the killing] myself.”

Asked to clarify if he meant he would give the defendant $10,000, Mr. Bozza responded,

“Well, it could be construed as that, yes, sir.” He agreed that he “never backed off of

anything” and that his statement could “[a]bsolutely” be construed as an agreement to pay

the defendant $10,000.

Barbara Bozza, Mr. Bozza’s mother, testified that she knew the defendant through her

son and that he came by her house a week or two before the victim’s murder to see her son.

Her son went outside and talked to the defendant for about two minutes.

Attorney Michael Rohling testified that he was retained to represent Mr. Bozza and

that he was present during every statement he gave to the police except for the initial one.

He said that Mr. Bozza had not been promised anything in exchange for his testimony.

Jennifer Addington testified that when she separated from her husband in July 2010,

she took his nine-millimeter handgun and placed it in a maroon lunchbox cooler that she kept

underneath her belongings in the back of her 2004 Honda Odyssey minivan. She then began

dating the defendant and occasionally allowed him to drive her van. She discovered that the

gun and lunchbox were missing “[s]ometime towards the end of July” and asked the

defendant about it, but he denied having it. She identified the lunchbox cooler, which was

admitted as an exhibit.

Addington said that, on the day of the victim’s murder, she was supposed to meet the

defendant at her house at 7:30 a.m., but she was late getting home from her job in Huntsville,

Alabama. When she arrived home between 9:00 and 9:30 a.m., the defendant was not there.

She went to sleep and was awakened by the defendant sometime later. She went back to

sleep and was again awakened by the defendant around 2:00 or 3:00 p.m. The defendant left

and, when he returned, he smelled like “burning leaves.” They then went to an early dinner

at TGI Friday’s restaurant. Addington said that the defendant had an Android cell phone, but

she noticed he had a “thinner” white phone that day. She told the police she had not seen an

iPhone, but she had “no clue” if the white phone she saw was an iPhone.

Addington said that the defendant told her not to talk to the police because that was

“how they had gotten him, that they had asked him to meet up to discuss [Mr. Bozza]. And

when they did, that’s when they had seized his phone in his car and held him all day and not

to do it, that they were going to get me like that, too. And they were going to try to tell me

all sorts of mean things – awful things about him and that it was just – for me not to do it.”

However, based upon her attorney’s advice, she met with the police on August 31 but lied

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to them in saying that the defendant was with her the entire day of the victim’s murder. She

subsequently met with Detective Crumby and gave the police another statement.

Addington said that before the defendant was arrested, he asked her to search her

computer for news articles related to the victim’s murder and “to get any and every

information [she] could find on Detective Crumby and his partner.” She gave the defendant

some information, and the defendant asked her if she had deleted everything, which she had.

The defendant also asked her to accompany him on a trip to Barbados and told her not to use

her cell phone because it was tapped.

Jessica Logsdon testified that she was a family friend of Addington and also knew the

defendant. She said that she went to Addington’s residence between 12:00 and 5:00 p.m. on

August 29, 2010, because she wanted to borrow Addington’s minivan, but the van was not

there. She went into Addington’s residence and attempted to wake up Addington but was

unsuccessful. The defendant was not there.

Jeff Walters, Jennifer Addington’s ex-husband, testified that he owned a Hi-Point

nine-millimeter handgun and around July 24, 2010, realized that it was missing. He filed a

police report, listing Addington as a suspect. He previously had fired the weapon during

target practice on his property in Ethridge, Tennessee, and assisted the police in recovering

shell casings from his property. Walters said that the nine-millimeter gun depicted in a

photograph admitted as an exhibit “look[ed] just like [his] gun.”

John Schmahl testified that he met the defendant when he moved into the apartment

across from Schmahl’s and that they frequently socialized. He also knew Mr. Bozza and had

done some remodeling work for him. He described the defendant and Mr. Bozza’s friendship

as “[c]lose. . . . [T]hey both talked about each other highly.” As to the defendant’s financial

condition, Schmahl said that the defendant “played off to – as if he were doing very, very

well. He always had stacks of hundred dollar bills.” However, the defendant moved out of

the apartment about a week before the sheriff’s department showed up with an eviction

notice. Schmahl said that the defendant had an Android phone and that he never saw the

defendant without it. He acknowledged that the defendant had a “pretty fancy” vehicle with

a customized license plate that read “Big Man.”

Schmahl said that the defendant knew he owned a couple of guns and told him that

he wanted to buy a gun for “personal protection.” In July, the defendant showed him a Hi-

Point nine millimeter gun in a maroon lunchbox and told him he “just bought it off of

someone” for $350. Schmahl said that the lunchbox admitted into evidence was “pretty

identical” to the one the gun was in when the defendant brought it to his residence.

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Schmahl said that the defendant called him on August 29, 2010, at approximately

12:28 p.m. as he was driving northbound on Old Hickory Boulevard, a few blocks past the

interstate. The defendant told Schmahl that he had just driven past him.

Michael Chad Wilson testified that he had known the defendant for about ten years

and occasionally socialized with him. He said the defendant had a very distinctive Android

phone that “probably never left his hand.” The defendant called him at approximately 2:46

p.m. on August 29, 2010, and asked how to take the battery out of an iPhone. After Wilson

learned of the victim’s death, he contacted the police and gave a statement. After the

defendant was arrested, Wilson received several telephone calls from him while he was in

jail and perceived the last call to be “threatening.”

Detective Andrew Injaychock of the MNPD testified that he was the co-lead detective

with Detective Crumby. When he arrived at the crime scene, he noticed there appeared to

have been a struggle because the couch cushions were in disarray and a window blind had

been pulled off. After interviewing Brian Robinson, officers established the victim’s “time

frame of leaving the church to [her] residence” and determined that she had met with Mr.

Bozza. Detective Injaychock interviewed Mr. Bozza who provided two receipts dated

August 29, 2010, one from Holt’s Cee Bee in Ridgetop and one from Lowe’s in the Ridgetop

area, which were admitted as exhibits. The time stamped on the Holt’s receipt was 12:35

p.m., and the time on the Lowe’s receipt was 1:19 p.m. Detective Injaychock later reviewed

surveillance videos from the two stores, which showed Mr. Bozza in the stores during the

time frames reflected on the receipts.

Detective Injaychock said that he subsequently went to Jeff Walters’ farm in Ethridge

where two spent shell casings were recovered from the ground. He acknowledged that the

gun and the victim’s iPhone were never found.

Attorney Phillip Robinson testified that he was retained to represent the victim in her

divorce case in March 2010. After a court hearing, the victim was awarded more time,

approximately 203 days, with the parties’ child and a reduction in the amount of child

support to be paid to Mr. Bozza. The time allotted to the victim “became a bone of

contention and was very upsetting to Mr. Bozza.” The parenting plan contained a provision

requiring both the victim and Mr. Bozza to carry $350,000 in life insurance and list the other

parent as the beneficiary as trustee for their minor child. Robinson said that the custody issue

regarding the parenting time and the possibility of relocation had not been resolved at the

time of the victim’s murder.

John Russell, a financial advisor, testified that he did some financial planning for the

victim and Mr. Bozza. He said that, at the time of her death, the victim had a $550,000 life

insurance policy with Mr. Bozza listed as the beneficiary. Mr. Bozza approached him at the

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victim’s funeral and said “he needed to get together with [Russell] to discuss the insurance.”

David Kline testified that he managed the mapping division of the Metropolitan

Planning Department and had created over 100 maps related to the case. He identified aerial

photographs depicting, among other things, St. Edward’s Catholic Church, Jennifer

Addington’s residence, the victim’s residence, TGI Friday’s restaurant, the Waste

Management Nashville transfer station, and 5109 Old Hickory Boulevard.3 He also

identified maps depicting a cell phone tower and the victim’s residence, a Verizon cell phone

tower and TGI Friday’s restaurant, and an AT&T cell phone tower in Benton County. He

provided distances between multiple locations and cell phone towers to Detective Vallee.

Special Agent Joel Wade of the TBI Technical Services Unit, accepted by the trial

court as an expert in computer forensics and forensics of mobile devices, testified that he

analyzed a Motorola cell phone with an Android operating system submitted to him in the

case. He extracted from the phone the cache Wi-Fi file, which showed the actual latitude and

longitude of the router at the time the phone “saw” the router, and the cached out cell file,

which showed the tower location. He explained that a cache file was a “log file of the

locations that that phone ha[d] seen in its past.”

TBI Special Agent Richard Littlehale, accepted by the trial court as an expert in the

field of communications records and criminal investigations, testified that he was the

assistant special agent in charge of the Technical Services Unit. He said cell site location

information, including historical records, was generally available to law enforcement

officers. He explained that historical records were created by the phone company in the

normal course of business and showed which particular cell tower and, in certain cases,

which side of the tower the handset had communicated with. Asked to explain the

geographic correlation between tower location and device location, Agent Littlehale said that

he “would expect to see a handset that is communicating within a particular tower to be

either within that first tier of towers or occasionally, because of interference or load

balancing issues, going out to the outer second tier, . . . possibly in rare circumstances a third

tier.” However, based upon his experience, handsets were “generally within those inner tiers

of towers closer to the towers, particularly in urban areas.” Agent Littlehale acknowledged

that he had not analyzed any of the records in the case.

On cross-examination, Agent Littlehale said that a handset did “not always

communicate with the closest tower. The factors that influence what that handset, what

choice that network will make, as far as which cell tower will communicate with a handset,

depend on signal strength and also the load of the particular tower and any interference,

3

The witness stated “5109” Old Hickory Boulevard, but the corresponding exhibit shows the street

number as “5901.”

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terrain, [or] obstacles that might interfere.” Based upon his experience, on most cellular

networks in Nashville, the towers are between one-half a mile and two miles apart. He

explained that a tier was “a set of towers that the handset could be using” and agreed that if

someone was trying to find a handset, the first tier was a number of towers, perhaps close

together, and the second tier was a greater number of towers. On redirect, Agent Littlehale

agreed that cell phone records and tower locations did not pinpoint a handset. He said that,

in criminal investigations, cell tower records were used to corroborate and/or refute evidence

and alibi statements.

Detective Andrew Vallee of the MNPD Criminal Investigations Division testified that

he specialized in cellular telephone records and the analysis and mapping of those records.

He analyzed call detail records for the victim, Brian Robinson, Jennifer Addington, and the

defendant. Using the PowerPoint presentation he created, Detective Vallee explained his

findings regarding the day of the victim’s murder. Because the 9-1-1 phone call was

received at 12:30 p.m., he reviewed the victim’s cell phone records to determine what calls

were made prior to that time. The victim called Brian Robinson at 11:51 a.m., which lasted

eight minutes and started with tower 3099 near St. Edward’s Church and ended at tower 3108

near Interstate 40 and Stewart’s Ferry Pike. She next made a thirty-three-second call at 12:01

p.m. to her sister, and that call started at tower 3108 and ended at tower 3537 located at

Interstate 40 and Old Hickory Boulevard. The last phone call prior to the victim’s death was

made to Garnett Jagels at 12:07 p.m., with the victim’s phone again connecting to tower

3537. Detective Vallee said that the most direct route from St. Edward’s Catholic Church

to the victim’s residence was about a fifteen- to twenty-minute drive. The victim’s call

pattern showed that when she was at home, she connected with AT&T tower 3035, which

was the closest tower. Mr. Bozza called the victim’s cell phone at 1:48 p.m., connecting to

antenna 3037 which was located 1.8 miles from Addington’s residence. At 1:49 p.m., the

victim’s cell phone received a voicemail notification, which connected to AT&T antenna

3037. The voicemail was accessed at 1:50 p.m. There was no activity on the victim’s phone

from 7:40 p.m. that day until August 31 at 10:53 a.m. when her phone transmitted data and

connected to AT&T antenna 3150 near the Waste Management Nashville transfer station

located at 1428 Antioch Pike. At 1:44 p.m., her phone again transmitted data from AT&T

antenna 3077 near the Waste Management Landfill in Camden, Tennessee. Detective Vallee

said that the victim’s cell phone was likely thrown away, went to the Nashville transfer

station on Antioch Pike, and then was transported by garbage truck to the landfill in Camden.

Detective Vallee said that they had information indicating that Mr. Bozza was at

Holt’s Cee Bee in Ridgetop, Tennessee, at the time of the victim’s murder. After analyzing

Mr. Bozza’s phone records, Detective Vallee learned that Mr. Bozza called the defendant

thirteen times on the day of the victim’s murder, seven times prior to her murder and six

times afterwards. He then requested the defendant’s phone records, which showed that

between 10:46 and 11:05 a.m. on the day of the victim’s murder, the defendant’s phone was

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connecting to Verizon antenna 531, near Jennifer Addington’s residence. At 11:14 a.m., the

defendant called Mr. Bozza, connecting to Verizon antenna 139 near Briley Parkway and

Lebanon Pike. From 11:29 to 11:43 a.m., there were five calls between the defendant and

Mr. Bozza, all connecting to Verizon antenna 61 near St. Edward’s Catholic Church. The

defendant’s cell phone also connected to a Wi-Fi access point near the church at 11:54 a.m.

The next activity on the defendant’s phone was at 12:20 p.m., when he made a ten-second

call to Mr. Bozza that connected to antenna 117, followed by another call at 12:22 p.m. that

lasted 102 seconds and began with antenna 116 and ended with antenna 113. Antenna 113

was less than a mile from the victim’s residence, antenna 117 was 3.06 miles, and antenna

116 was 5.14 miles. The next call placed on the defendant’s phone was at 12:28 p.m. to John

Schmahl that began with antenna 24 and ended with antenna 139. At 12:39 p.m., the

victim’s cell phone received a text message from antenna 3052, which was located near the

intersection of Interstate 40 and Spence Lane. The next activity on the defendant’s phone

was from Verizon antenna 531 near Addington’s house and included a 12:51 p.m. call from

Mr. Bozza, a 2:24 p.m. call to Addington, and a 2:28 p.m. call from Addington. At 2:45

p.m., the defendant called Chad Wilson, first connecting to antenna 531 and ending with

antenna 141 located at the intersection of Interstate 40 and Interstate 24. Between 3:15 p.m.

and 3:23 p.m., the defendant’s cell phone was connected to an antenna in the Hickory Hollow

Mall area near TGI Friday’s restaurant. The defendant’s phone also showed a Wi-Fi

connection access point near the restaurant. Jennifer Addington’s call activity showed that

she connected to the antenna near TGI Friday’s at 3:19 p.m., which corroborated her

statement to the police.

Detective Vallee said that further analysis of the defendant’s call detail records

showed that a Wi-Fi access point near the victim’s house was logged on the defendant’s

phone at 6:13 a.m. on August 26, 2010, three days before the victim’s murder. The

defendant called Mr. Bozza that day at 6:32 a.m. and talked for seven and a half minutes.

On cross-examination, Detective Vallee agreed that the information he had was single

cell site information, which was less precise than GPS or trilateration. He further agreed that

the exact location of a telephone handset could not be determined based on the location of

a cell tower.

Officer Mark Mittermeier of the MNPD testified that in September 2010 he was

assigned to the United States Marshals Fugitive Task Force and that his unit arrested the

defendant in Glasgow, Kentucky, on September 20, 2010, at Brenda Pittman’s residence.

Sergeant Pat Postiglione of the MNPD testified that he recovered Ms. Pittman’s work

computer from her employer and turned it over to Detective Chad Gish, a forensic examiner,

for analysis.

-13-

Detective Gish testified that he analyzed the defendant’s Android cell phone and

recovered numerous photographs. One photograph dated August 2, 2010, was of a nine-

millimeter pistol with a loaded clip lying next to it. Another photograph dated August 13,

2010, was of a mattress with what appeared to be bullet holes. Detective Gish also recovered

a text message Ms. Pittman sent to the defendant at 8:57 p.m. the day of the victim’s murder

that read, “I am so happy for you . . . it’s great when a plan comes together . . . .” His

analysis of Ms. Pittman’s computer showed she had sent emails to an address,

bigmansixnine@gmail.com, associated with the defendant’s phone. One email dated August

19, 2010, ten days before the victim’s murder, included attachments containing information

on Barbados and processing times for passport applications. Another email dated September

17, 2010, included an attachment listing countries that do not have extradition treaties with

the United States.

Toya Randolph, an employee of the Criminal Court Clerk’s Office, identified a form

the defendant filled out indicating that he had no job or source of income and that he owed

child support.

TBI Special Agent James Russell Davis, II testified that he tested numerous items of

evidence for gunshot residue. He found gunshot primer residue on the blue towel and the

Condor tactical sleeve recovered from the defendant’s vehicle. The residue particles

contained tin and zirconium, which was unique. He analyzed the shell casing recovered from

the crime scene and found that it “also had the elements tin and zirconium.” Agent Davis

explained that this was the first time he had seen zirconium in gunshot residue and that the

shell casing was an import, apparently manufactured in Russia.

Dr. John Davis, a forensic pathologist, testified that he performed the autopsy on the

thirty-nine-year-old victim and determined that her cause of death was multiple gunshot

wounds. The victim had a close contact gunshot wound, which entered through her left ear

and exited above her right eye. She had a second gunshot wound, which entered behind and

above her left ear and exited between her ear and forehead on the right side. Both of these

wounds were lethal. Additionally, the victim had a gunshot wound to her right shoulder and

to her right arm, which broke her arm. Dr. Davis said that the victim had been shot “at least

four times.” No projectiles were recovered from the victim’s body.

Dr. Laura Boos of the TBI Crime Laboratory Serology DNA Unit testified that she

performed DNA testing on the blue latex gloves, blue hand towel, lunchbox cooler, and

tactical sleeve recovered from the defendant’s vehicle. The items contained a mixture of

genetic material from more than one person. She obtained a limited DNA profile, which was

consistent with the defendant, from the latex gloves. She was able to exclude the victim, Mr.

Bozza, and Brian Robinson as contributors to the mixture found on the gloves. She also was

able to exclude Mr. Bozza and Mr. Robinson as contributors to the genetic material on the

-14-

blue towel but was unable to exclude the defendant and the victim as potential contributors.

The towel was sent to another laboratory for further testing. From the limited profile she

obtained from the lunchbox cooler, the defendant could not be excluded as a contributor, but

the victim, Mr. Bozza, and Mr. Robinson were excluded. The major profile on the Condor

tactical sleeve “completely match[ed]” the defendant, and she was able to exclude the victim,

Mr. Bozza, and Mr. Robinson as contributors. On cross-examination, Dr. Boos

acknowledged that she did not find the defendant’s DNA on any of the profiles obtained

from the crime scene or underneath the victim’s fingernails.

Jennifer Smith, a DNA analyst with Orchid Cellmark Laboratories, testified that she

examined the blue towel, using a different technique than most other laboratories, and found

that the “major DNA profile present on the side of the towel without writing originated from

[the defendant].” The victim and Mr. Robinson could not be excluded as minor contributors,

and no conclusion was reached regarding Mr. Bozza.

TBI Agent Steve Scott, assigned to the Firearms Identification Section, testified that

he examined a nine-millimeter cartridge case and four nine-millimeter bullets recovered from

the crime scene. The bullets had a copper steel mix, which was “a little bit unusual” and

consistent with a Russian-made ammunition. He compared two cartridge cases shell casings

found on the property in Ethridge, Tennessee, to the cartridge case recovered from the crime

scene and determined they had been fired in the same firearm. Characteristics most common

to firearms manufactured by Hi-Point were present on all three cartridge cases. Agent Scott

identified the gun and magazine depicted in a photograph recovered from the defendant’s cell

phone as a Hi-Point semiautomatic pistol. The shell casing recovered from the crime scene

had the same green coloration as the top cartridge case in the magazine.

Defense Proof

The defendant testified that he had known Mr. Bozza approximately sixteen years and,

during the summer of 2010, was working with him as “kind of business partners.” He knew

that Mr. Bozza was in the process of getting a divorce and that Mr. Bozza was upset about

his situation with the victim. The defendant said that it was not unusual for him and Mr.

Bozza to call each other “all day long.” He identified photographs of his Cadillac Escalade

showing, among other things, his customized license plate which read “Big Man.” He denied

killing the victim, saying he spent the night before the victim’s murder with Brenda Pittman

in Kentucky. He said he arrived back in Nashville sometime after 10:00 a.m. the next day,

August 29, 2010, went to see his son’s mother, Laura Yancey, and then went to Jennifer

Addington’s residence. He talked to Mr. Bozza and then met with him around 11:15 a.m.

near St. Edward’s Church where Mr. Bozza was to pick up his son. They discussed their

weekend activities and potential job bids, and the defendant left around 11:50 a.m. to meet

Ms. Yancey at a parking lot near Addington’s residence. While he was repairing Ms.

-15-

Yancey’s older model vehicle, she drove his Cadillac Escalade to get some food. After Ms.

Yancey left, the defendant realized that his phone was on the charger in his Escalade. Ms.

Yancey returned around 12:28 p.m., and the defendant then went to Addington’s house,

arriving there at about 12:30 p.m. Around 3:00 p.m., he and Addington went to the TGI

Friday’s restaurant in the Hickory Hollow Mall area. He said he last talked to Mr. Bozza

around 4:00 p.m.

The defendant said that he used the blue latex gloves found in his vehicle to protect

his hands while cleaning his rims with “basically pure acid” that he kept in a green jug in the

back of his vehicle. He explained that he used the black tactical sleeve as a face mask when

doing work-related painting or sanding. He said he used the blue towel to clean his vehicle.

Regarding the photograph of a mattress with holes in it found on his cell phone, the

defendant said that the mattress belonged to his mother and “was so worn out that the springs

had poked holes in [it].” He denied that the holes were bullet holes and said that he and Mr.

Bozza moved it out of his mother’s house onto the back patio. Asked about the emails

containing information about Barbados and extradition treaties, the defendant said that Mr.

Bozza had taken a trip there and that the State of Tennessee had frozen one of his bank

accounts as a result of his child support arrearage. The defendant said he wanted to know

if would he be extradited back “for something silly like child support” if he moved to

Barbados. He denied any knowledge of life insurance policies on the victim’s life.

On cross-examination, the defendant acknowledged that his nickname was “Big

Man.” He admitted that he had a prior conviction for criminal impersonation. Regarding the

thirteen phone calls between him and Mr. Bozza on the day of the victim’s murder, the

defendant said they “only got in touch with each other about seven of those times.” He said

he met Mr. Bozza at the location where Mr. Bozza was to pick up his son to tell him about

his weekend activities because he could not “do it over the phone with Jennie Addington

right next to [him].” He denied following the victim prior to her murder.

The defendant acknowledged that when he was arrested, he was on the phone with

Ms. Addington and told her to call Mr. Bozza and tell him what had happened. He further

acknowledged that he passed five or six notes to Mr. Bozza in jail, telling him to “stay

strong” and “[n]ot to get depressed and take twenty-five years.” He denied talking to Mr.

Bozza about killing Ms. Yancey’s ex-husband or the victim. He said that Mr. Bozza’s

comments about the victim “were like that of . . . a husband going through a divorce.” He

denied calling Mr. Bozza at 12:22 p.m. on the day of the victim’s murder, saying that Ms.

Yancey had his phone at that time because it was in his vehicle.

The defendant acknowledged that he was in the victim’s neighborhood at 6:15 a.m.

three days before the victim’s murder but said he was there at the request of Mr. Bozza, who

-16-

had called him that morning and asked him to drive by the victim’s residence to see if Mr.

Robinson’s car was there. Asked if he was at St. Edward’s Church at the same time the

victim got out of church, the defendant said, “If she got out at 11:45, then she had to have

passed me.” He denied asking Ms. Pittman to obtain information on any of the police

officers or prosecutors. He acknowledged going to Mr. Bozza’s mother’s house but said that

he stopped by there on his way back from Kentucky and that Mr. Bozza knew he was

coming.

The defendant acknowledged that there was a past due phone bill in his vehicle and

said that the pawned television was given to him by a friend who owed him money and that

he “took the property and got what [he] could out of it.” Regarding the form he signed under

oath indicating that he had no assets, no bank account, and had not paid taxes since 2007, the

defendant said he closed his bank account because it had been seized when he “got like . .

. a child support letter.” He elaborated, “At that point in time I wasn’t about to put anymore

money in the bank account if all of it was going straight – so I would save my money either

by cash or just put it in another account.” Asked if he had been truthful when he completed

the form indicating he did not have any assets, the defendant responded, “I listed my

Escalade, which is my personal asset. As far as if I’m in custody, I’m not generating any

money. I’m sitting here, I’m not working, no money is coming in. So that’s about as truthful

as I could be. If I would have been allowed to continue working, I would have had plenty

of money.” The defendant said that when he returned from the west coast, “I sold a lot of

things out there. I wasn’t completely broke when I c[a]me back as you would have the Court

assume. I had plenty of money from the things I had sold. I was just living off that.” He

denied being broke at the time of his arrest, saying, “At that time I didn’t have cash laying

around. . . . [M]y money was tied up in bills, and I made prior investments to some of the

business arrangements we talked about[.]”

As to the gun that was in Ms. Addington’s lunchbox, the defendant said that “probably

at least . . . seven to ten days before the homicide . . . [Mr. Bozza] gave [the defendant]

money for the gun.” When asked to confirm that he sold the gun to Mr. Bozza, the defendant

said, “No, actually it was [Ms. Addington].” Regarding threats made to Detective Crumby,

the defendant said, “I’m not really one to threaten, but at the time I was upset. . . . I asked

him about his son. That’s not a lie. I did do that.” He denied telling Ms. Addington to erase

information from her computer regarding the detective’s family, saying:

When [Ms. Addington] mentioned that, she had checked on a story

about [the victim]. As soon as I found out from [Mr. Bozza] about what

happened, the first thing that came to my mind was [Mr. Bozza] done it.

When [Mr. Bozza] tells me that he wasn’t there at the time and he proved to

me he was in Greenbrier, I started doing a search. Because [Mr. Bozza] swore

up and down, man, I’m telling you, I had nothing to do with it. I’m like, I just

-17-

got the gun to you about ten days prior. Because him and [Ms. Addington]

had had their little meeting or whatever. And me and [Ms. Addington] were

checking to see what type of firearm was used in the death of [the victim].

The defendant acknowledged that he called Chad Wilson but said they talked “for

barely thirty seconds . . . and didn’t say anything about an iPhone or anything like that.” He

denied ever having the victim’s cell phone.

Penalty Phase

The parties stipulated that the defendant had three prior convictions for aggravated

assault, occurring in 2001 and 1996, and certified copies of those judgments were admitted

into evidence.

Maddalena Stucchi, the victim’s mother, testified about how the victim’s death had

impacted her and the victim’s nine-year-old son. She said the victim left Italy to come to the

United States to fulfill her dreams. The victim’s younger sister, Lorenza Pintar, testified that

she and the victim were born in Milan, Italy, and that the victim and her son were the only

family she had in the United States. She said the victim was her only sibling and had always

inspired her to follow her dreams.

Barbara Cotham, the defendant’s mother, testified about the defendant’s childhood

and educational history. She and the defendant’s father had been married for twenty-two

years but divorced in 1993 when the defendant was seventeen or eighteen years old. The

defendant continued to live with her “[o]ff and on” after the divorce. The defendant dropped

out of high school but had earned his GED. Ms. Cotham said the defendant and Mr. Bozza

had moved a mattress and box springs for her.

The defendant’s paternal aunt, Jacqueline Francis, testified there was only a three-year

age difference between her and the defendant and that they “grew up together. . . . He’s more

like a little brother than a nephew.” She said the defendant “was disappointed and very

unhappy” when his parents divorced.

The jury found two statutory aggravating circumstances, that the defendant had been

previously convicted of one or more felonies, other than the present charge, whose statutory

elements involved the use of violence to the person and that the defendant committed the

murder for remuneration or the promise of remuneration, see Tenn. Code Ann. § 39-13-

204(i)(2), (4), and sentenced the defendant to life without the possibility of parole. At a

subsequent sentencing hearing, the trial court sentenced the defendant as a Range I offender

to twenty-five years for the especially aggravated robbery conviction, to be served

consecutively to the life sentence.

-18-

ANALYSIS

We will review the issues presented by the defendant on appeal.

I. Motion to Suppress Evidence Seized Pursuant to Search Warrant 406

Both in the motion to suppress filed in the trial court as to search warrant 406 and on

appeal, the defendant argues that “the search warrant was illegal, invalid, and

unconstitutional; that the supporting affidavit was legally insufficient on its face; that the

search warrant was based upon material misrepresentations in the affidavit thereto; and that

the search warrant was overly broad and authorized an unconstitutionally general search.” 4

Additionally, he argues that there was an insufficient nexus between the search warrant

affidavit and the evidence sought by the warrant and that the “cell phone tracking

information” (CPTI) or the “cell site location information” (CSLI), relied upon by the search

warrant as probable cause, was obtained in violation of his rights guaranteed by the United

States and Tennessee Constitutions.

The State responds that, because the defendant was on parole at the time of the search

and seizure, his constitutional rights were not violated; that the obtaining of the defendant’s

historic CSLI did not constitute a “search;” that the search warrant did not contain materially

false statements; and that, because the first warrant was properly obtained, the subsequent

warrants were not fruits of the poisonous tree.

To properly assess the claims of the parties regarding these issues, it is necessary first

to set out the chronology of the matter, including the relevant language of the search warrant.

As we have set out, police officers learned from their interviews with the victim’s

husband that he and the defendant had made telephone calls to each other the day of the

victim’s death. Based upon this information, officers requested and received copies of the

cell phone records of the victim, her husband, and the defendant. From these records,

officers learned that the victim’s husband and the defendant had telephoned each other a

number of times before and after her death and, as well, that her missing cellular phone

received data, after her death, from cell phone towers which were being used at the same

time by the defendant’s cell phone. Utilizing this information, search warrant 406 was

4

Chapter 991 of the Tennessee Public Acts of 2014, which limits the circumstances under which law

enforcement authorities may obtain cell phone location information, became effective on June 3, 2014; and,

thus, it is not relevant to our decision. Additionally, in Riley v. California, __ U.S. __, 2014 WL 2864483

(June 25, 2014), the United States Supreme Court held that, without first obtaining a search warrant, law

enforcement officers generally could not search digital information on a cell phone which had been seized

from an arrestee.

-19-

obtained by investigators from a Davidson County General Sessions Court judge on August

30, 2010. The sworn statement of facts in support of the warrant are as follows:

On 08/29/2010 Veronica Bozza was murdered at her residence at 5240

New John Hager Road in Hermitage, TN. After interviewing the victim’s

estranged husband, Timothy Bozza, he stated that he had only been in contact

with a friend, [the defendant], with a cellular telephone number of (615) xxx-

xxxx. A check of the cellular telephone records showed that Timothy Boz[z]a

and [the defendant] had been in contact 7 separate times before the murder.

It also showed that the two contacted each other multiple times after the

murder. A check of the victim’s and [the defendant’s] cellular telephone

records showed that both cellular phones were in the same locations at the

same time starting at 11:29 a.m. until 14:45 when the victim’s cellular phone

was powered off. The victim was believed to have been murdered somewhere

between 12:07 p.m. and 12:22 p.m. Her cellular telephone was stolen and was

tracked near [the defendant’s] cellular phone for the entire time span until it

was powered off.

[The defendant] is a convicted felon for aggravated rape and two

aggravated assaults. He is currently on parole under the Tennessee Board of

Probation and Parole. He also has an outstanding order of protection against

him from a separate incident that indicates he has violent tendencies.

[The defendant] was interviewed by Detectives Andrew Injaychock and

Johnny Crumby on 08/30/2010 and was observed to have scratches on him.

The suspect placed his cellular telephone in the [2004 tan Cadillac Escalade]

and locked it to avoid Detectives obtaining it. The cellular telephone contains

vital information to this homicide investigation as described above. I request

that this search warrant be issued to obtain photographs, physical samples,

fingerprints, and DNA from [the defendant] to further this investigation as

described above.

Subsequently, the defendant filed a motion to suppress evidence obtained pursuant to

this search warrant. In his appellate brief, the defendant sets out the items which were

obtained or created as a result of the search warrant: a blue towel; photographs of the

defendant’s vehicle and items found in it; work gloves; a duffel bag; both used and unused

latex gloves; a Cricket phone and cord; sunglasses; a cell phone bill; a pawn ticket; a

collapsible cooler; DNA swabs; a hat and black tactical sleeve; a photograph on the

defendant’s cell phone of a nine-millimeter pistol; a Motorola Android cell phone and

charger; maps derived from cell phone tracking information; a Wi-Fi cache file and cell

cache file for the defendant’s cell phone; a Tennessee Bureau of Investigation (TBI) report

-20-

regarding Wi-Fi information taken from the defendant’s phone; a PowerPoint presentation

based upon cell phone tracking information; photographs of a mattress; text messages and

emails between the defendant and Brenda Pittman; a TBI report that a tactical sleeve from

the defendant’s vehicle contained gunshot residue; a TBI report that the defendant’s DNA

was found on both the tactical sleeve and latex gloves from his vehicle; and an Orchid

Cellmark laboratory report that the blue towel from the defendant’s vehicle contained his

DNA.

We next will review the pertinent testimony at the hearing on the defendant’s motion

to suppress.

Detective Andrew Vallee of the MNPD testified that he made an exigent-

circumstances request for historical cell phone data for the cell phones of the victim, the

victim’s husband, Timothy Bozza, and, later, for the defendant. He said his requests had

been made during the “late” evening of the day that the homicide occurred and his

experience was that, had he utilized a subpoena or search warrant to obtain the records, the

process could have taken “anywhere from six to twelve weeks just depending on what phone

company you go with and how soon they get it back.” He sought the records at the request

of the lead investigator, Detective Crumby, who then was at the scene talking with the

defendant. Detective Vallee explained what he believed to be the “exigent circumstances”:

They were requested under exigent circumstances based on the fact that

Mr. Bozza and [the defendant] had talked numerous times and the fact we

were lied to about how many times they had actually talked. And [the

defendant] and Mr. Bozza both talked immediately prior to and immediately

after the murder.

On appeal, the defendant argues that the State failed to establish at the hearing that

exigent circumstances existed, for officers were not in “hot pursuit” of the defendant and

immediate access to the records was not necessary to “thwart his escape,” protect others from

injury, or prevent the destruction of evidence. While the State disagrees with these

arguments, its primary response is that the defendant’s status as a parolee meant that his

Fourth Amendment rights were not violated by officers’ obtaining the cell phone records

without a warrant.

As to the findings by the trial court upholding the seizure of the various items, the

defendant argues in his reply brief both that the record does not support the conclusion that,

as a condition of his parole, he consented to the warrantless searches or that the officers

conducting the searches were aware he had prior knowledge that he was subject to such

searches. The State disagrees with these contentions. We will review the documents and

testimony relevant to these specific claims.

-21-

The form styled “Offender’s Application For Interstate Compact Transfer” bearing

the signature of the defendant and dated January 8, 2010, provides, in pertinent part, “I will

comply with the terms and conditions of my supervision that have been placed on me, or that

will be placed on me by Oregon (sending state) and Tennessee (receiving state).”

Additionally, the form acknowledges that Tennessee provisions of supervision may differ

from those of Oregon:

I understand that my supervision in another state may be different than

the supervision I would be subject to in this state. I agree to accept any

differences that may exist because I believe that transferring my supervision

to Tennessee (receiving state) will improve my chances for making a good

adjustment in the community. I ask that the authorities to whom this

application is made recognize this fact and grant my request for transfer of

supervision.

Exhibit J to this Oregon form, styled “General/Special Parole And Post-Prison

Supervision Conditions,” sets out, among several general conditions bearing the initials

“CC,” the scope of the consent to search:

Consent to the search of person, vehicle or premises upon the request

of a representative of the supervising officer if the supervising officer has

reasonable grounds to believe that evidence of a violation will be found, and

submit to fingerprinting or photographing, or both, when requested by the

Department of Corrections or a county community corrections agency for

supervision purposes.

Additionally, the record on appeal contains a form styled “State of Tennessee Board

of Probation and Parole . . . Parole Certificate, which states in part that “said prisoner be, and

is hereby paroled, subjective [sic] to the following conditions effective: [sic] . . . 8. I agree

to a search, without a warrant, of my person, vehicle, property, or place of residence by any

Probation/Parole officer or law enforcement officer, at any time.” This form does not bear

any signatures.

At the evidentiary hearing on the defendant’s motion to suppress, Garen Blanchard

testified he was the defendant’s parole officer and that the parole did not expire until March

17, 2012. He conducted an intake interview with the defendant on May 21, 2010, at which

time he “went over the Tennessee rules to make sure that [the defendant] understood the

differences” between the Oregon and Tennessee parole rules. Blanchard “felt the rules were

worded almost the exact same” and “did not have [the defendant] sign the Tennessee rules

at that time but . . . did go over that parole certificate with him.” Using a Tennessee parole

form, Blanchard recited that condition number eight provided, as to the parolee, that “I agree

-22-

to a search without a warrant of my person, vehicle, property, or place of residence by any

probation or parole officer or law enforcement officer at any time.” Blanchard further said

that, while the Oregon parole rules appeared to require that a parole officer be present at the

time of a warrantless search, “Tennessee is one of the states where [parole officers] don’t

have to be present.”

Following the hearings, the trial court filed a lengthy written order denying the motion

to suppress the search warrant. As to the defendant’s parole status at the time of the crimes,

the court found that he was on parole and had been advised of the Tennessee parole

conditions:

Garen Blanchard testified that he has been with the Tennessee Board

of Probation and Parole since 2007, and he has been with its sex offender unit

since May 2010. Mr. Blanchard was assigned to serve as Defendant’s parole

officer, shortly after Defendant was transferred from Oregon to Tennessee.

Mr. Blanchard testified that Defendant’s parole was not set to expire

until March 17, 2012, so he was, in fact, on parole at the time the search

warrant was executed in August 2010.

Mr. Blanchard conducted the intake interview with Defendant on May

21, 2010. At that time, Defendant was actually assigned to Mr. Blanchard’s

supervisor, but since the supervisor was incapacitated at the time, Mr.

Blanchard was asked to perform the interview.

Mr. Blanchard testified that during the interview he made sure to go

over the Tennessee rules since they differed in wording from the Oregon rules

and Defendant’s application indicated he had to abide by both the Tennessee

and Oregon rules.

Mr. Blanchard said that Defendant did not sign a separate sheet

regarding the Tennessee rules; however, he had initialed the rules for Oregon.

All of the papers from Defendant’s Oregon parole officer are contained within

Collective Exhibit 8. Mr. Blanchard explained that these records came from

Oregon in the standard way. According to the interstate rules, Tennessee

officers are prohibited from contacting the parole officer who handled

Defendant in Oregon; thus, the Tennessee Board of Probation and Parole had

to rely solely on the computer records provided by the Oregon Board.

Mr. Blanchard testified that Defendant did sign the Interstate Company

[sic], which explicitly states that in applying for transfer, Defendant would be

-23-

subject to the rules of supervision under Tennessee, and there is a portion of

the document where Defendant has to agree[] to abide by both states’ rules.

Section 8 of the Tennessee Board of Probation and Parole Certifi[cate]

(contained in Ex. 8) authorizes a search, without warrant, of a parolee’s

person, vehicle, property, or place of residence by any law enforcement officer

at any time. Mr. Blanchard testified that he specifically explained this section

to Defendant since it differs slightly from the Oregon provisions. The Oregon

provision is broken into two separate rules and Oregon requires that a

probation/parole officer be present for any search whereas Tennessee does not

have that type of requirement. Additionally, the Oregon provision requires

reasonable grounds for a search to be conducted whereas the Tennessee

provision does not require a grounds [sic] for the search.

In its order on the motion to suppress, the trial court concluded that the defendant was

on parole at the time of the homicide and had been told that he was subject to the Tennessee

parole conditions, as testified to by his parole officer:

[I]t is clear that Defendant was on parole at the time of the search. Although

the record does not contain a Tennessee Parole Certificate signed by

Defendant, Probation and Parole Officer Blanchard testified that he went over

the Tennessee rules with Defendant and explained how they differed from

some of the Oregon rules. In addition, the Offender’s Application for

Interstate Compact Transfer, which was signed by Defendant on May 21,

2010, explicitly states that Defendant will comply with the terms and

condition[s] placed on him by both Oregon and Tennessee. The Court,

therefore, finds that Defendant was not only on parole but had been advised he

would be subject to Tennessee conditions.

Further, the court concluded that “[t]he officers in this case were aware of Defendant’s

status as reflected by the statements about Defendant’s prior criminal record and parole status

set forth in the Affidavit in Support of Search Warrant.” Accordingly, the court concluded

that a search warrant was not needed for a search of the defendant’s person or vehicle “in

light of his parole status and his acknowledgment he was subject to Tennessee parole

conditions, which authorize law enforcement to conduct searches.”

In sum, the court found that the “Defendant was not only on parole [at the time of the

search and seizure] but had been advised he would be subject to Tennessee conditions.”

Thus, the court concluded that, because the defendant was a parolee at the time the search

warrant was obtained, “it was not necessary for the Metropolitan Police Department to obtain

a warrant prior to searching Defendant and his vehicle in light of his parole status and his

-24-

acknowledgment he was subject to Tennessee parole conditions, which authorize law

enforcement to conduct searches.” Additionally, the court determined that the “search

warrant provide[d] sufficient probable cause to conduct the search regardless of whether

Defendant had been on parole at the time of the search.” As to this issue of the validity of

the search warrant, the court made specific findings that, prior to seeking it, officers had not

sought “any GPS information from the phone records; instead, [Detective Vallee] obtained

signal information which could be used to track the vicinity of two phones (triangulation).”

In finding the motion to suppress was without merit, the court relied heavily upon the

unreported case of United States v. Skinner, No. 3:06-CR-100, 2007 WL 1556596 (E.D.

Tenn. May 24, 2007), finding that cell phone users did not have a reasonable expectation of

privacy to certain historical data:5

The Court finds the Skinner analysis persuasive and applicable to the

issue before this Court. Specifically, as the Court alluded to during the

hearing, cell phone users do not have an expectation of privacy as to cell signal

data. In order to make a phone call on a cellular . . . phone, signals must be

sent to cell towers through mechanisms controlled by the cell phone company.

Since there is no expectation of privacy as to these signals/pings, a warrant is

not necessary to procure historical cell site information used to triangulate a

caller’s location. Accordingly, the Court denies Defendant’s motion as to this

claim. The Court shall now review Defendant’s additional challenges to the

search warrant affidavit.

Further, the court noted:

[T]he search warrant authorize[d] the search of Defendant’s person for

photographs, physical samples, fingerprints, and DNA samples as well as any

cell phone in Defendant’s possession, a specific cellular phone (the victim’s

phone identified by phone number), and a vehicle Defendant drove to the

police station that is identified by make, model, and VIN number. (Affidavit

in Support of Search Warrant, Collective Ex. 2). The affidavit in support of

the search warrant notes that Defendant’s person, cellular phones, and vehicle

are currently under the control of the Metro Nashville Police Department.

The court explained why, generally, the search warrant was valid:

Specifically, the nexus for the search of Defendant’s person for the purpose of

taking photographs and physical samples (including DNA and fingerprints) is

self-evident. As to the phone, the affidavit sets forth detailed information from

5

Subsequently, this case has been designated as “not for citation.”

-25-

phone records which establishes the nexus for searching Defendant’s phone

and the victim’s phone should it be found either on Defendant’s person or

inside the vehicle. As to the vehicle, the affidavit explicitly states that

Defendant’s phone is known to be inside his vehicle; thus, a nexus is

established with the automobile.

We now will review the specific issues as to the search and seizure.

A. Effect of Defendant’s Status as a Parolee

First, we will determine the effect of the defendant’s status as a parolee on his search

and seizure claims. While not denying he was on parole at the time, the defendant argues that

the trial court erred in finding that he had “agreed to the standard search condition used by

Tennessee’s Board of Probation and Parole.” The State responds that the record supports

the finding of the trial court that the defendant had waived his right to object to the search

and seizure.

As we have set out, Garen Blanchard, a Tennessee probation and parole officer,

testified that he met with the defendant on May 21, 2010, to discuss the Tennessee rules of

parole with him “because they differ[ed] from Oregon in some of the wording.” He said he

had gone over the rules to make sure the defendant knew the differences between the

Tennessee and Oregon rules and did not recall the defendant’s asking any questions. He did

not ask the defendant to sign the Tennessee rules because he “felt the rules were worded

almost the exact same [as Oregon].” Previously, the defendant had signed a document

agreeing to abide by the Tennessee rules. Blanchard testified he remembered telling the

defendant that, in Tennessee, he was subject to search by “anybody who is duly sworn for

law enforcement purposes or any probation or parole officer.”

As to the legal authorities relevant to this issue, the State notes that, in Samson v.

California, 547 U.S. 843 (2006), the Supreme Court explained why parolees had surrendered

their right against what otherwise might be unlawful searches and seizures:

This Court has repeatedly acknowledged that a State has an “‘overwhelming

interest’” in supervising parolees because “parolees . . . are more likely to

commit future criminal offenses.” Pennsylvania Bd. of Probation and Parole,

524 U.S., at 365, 118 S. Ct. 2014 (explaining that the interest in combating

recidivism “is the very premise behind the system of close parole

supervision”). Similarly, this Court has repeatedly acknowledged that a

State’s interests in reducing recidivism and thereby promoting reintegration

and positive citizenship among probationers and parolees warrant privacy

intrusions that would not otherwise be tolerated under the Fourth Amendment.

-26-

See Griffin [v. Wisconsin], 483 U.S. [868,] 879 [(1987)]; [United States v.]

Knights, [534 U.S. 112,] 121 [(2001)].

Id. at 853.

In State v. Turner, 297 S.W.3d 155 (Tenn. 2009), our supreme court adopted the

reasoning of Samson:

A parole condition requiring that the parolee submit to warrantless searches

is reasonable in light of the parolee’s significantly diminished privacy

interests; the goals sought to be attained by early release; and society’s

legitimate interest in protecting itself against recidivism. We therefore adopt

the reasoning of Samson and hold that the Tennessee Constitution permits a

parolee to be searched without any reasonable or individualized suspicion

where the parolee has agreed to warrantless searches by law enforcement

officers.

Id. at 166 (footnote omitted). The court concluded that “[a] suspicionless search of a parolee

subject to a warrantless search condition, and which is conducted out of valid law

enforcement concerns, is not unreasonable.” Id. at 167.

As we have set out, following an evidentiary hearing, the trial court concluded that

the defendant was on parole at the time of the search and seizure of his records; that he had

been told he was subject to the Tennessee parole conditions, which provided for a search

without a warrant; that officers were aware of his prior criminal record and parole status; and

that, accordingly, a search warrant was not needed for the search and seizure of the

defendant’s telephone records, his person, and his vehicle. We conclude that the record, as

we have set out, supports this determination by the trial court.

The defendant presents on appeal certain additional factual arguments as to why he

had retained his rights against an unlawful search and seizure. He asserts that “[m]any

mobile phone users are unaware that law enforcement agents have the ability to track their

cellular information” and “view[] their location information as private, and expect[] it to

remain private.” Additionally, he argues that “society views his expectation of privacy in

his cellular data and records as reasonable and justifiable under the circumstances” for it can

“reveal details about the inside of an individual’s residence,” satisfying the objective prong

of Katz.

He argues that, as a citizen, he had a reasonable expectation of privacy in the data and

records that constituted cell site location information. The State responds to this assertion

by saying that the defendant’s rights against an unlawful search and seizure were waived

-27-

because he was a parolee and subject to the provisions of his parole agreement. As we have

set out, we agree with the State.

As for search warrant 406 itself, on appeal the defendant argues that it was defective

because its affidavit contained material false allegations, these being that the affidavit

“overstate[d] the technological capabilities of cell phone site information in a manner that

renders a false claim”; that, contrary to the affidavit, the defendant’s prior sexual offense had

been a conviction for statutory rape, and not aggravated rape; and that even if a photograph

of the defendant showed that he “had scratches on him,” they were not fresh.

Following a pretrial hearing on the defendant’s motion to suppress, the trial court, in

its written order, found that these claims, even if they were true, would not entitle the

defendant to a hearing, as contemplated by State v. Little, 560 S.W.2d 403 (Tenn. 1978).

[T]here are two circumstances that authorize the impeachment of an affidavit

sufficient on its face, (1) a false statement made with intent to deceive the

Court, whether material or immaterial to the issue of probable cause, and (2)

a false statement, essential to the establishment of probable cause, recklessly

made. Recklessness may be established by showing that a statement was false

when made and that affiant did not have reasonable grounds for believing it,

at that time.

Id. at 407.

“In order to be ‘essential to the establishment of probable cause,’ the false statement

must be the only basis for probable cause or if not, the other bases, standing alone, must not

be sufficient to establish probable cause.” State v. Norris, 47 S.W.3d 457, 469 n.4 (Tenn.

Crim. App. 2000).

As to the inaccuracy in the affidavit as to the defendant’s prior conviction for a sexual

offense, the court concluded that it had not been recklessly made:

When preparing the Affidavit, the officers relied on information they received

from Defendant’s Tennessee parole officer as well as an Oregon website, and

it was not possible to verify the information from these two sources prior to

requesting the search warrant; Detective Vallee testified to this issue at the

evidentiary hearing. The State contends the statement was made in good faith

with no intention to mislead; however, should the Court determine it was

recklessly made, the statement was not essential to probable cause and not

require suppression of the evidence. This Court agrees.

-28-

Likewise, the apparent factual dispute regarding whether the defendant had scratches

on his body did not entitle him to an evidentiary hearing:

The defense’s second objection to the Affidavit is the officer’s assertion

Defendant had scratches on his body. This issue also was raised during the

evidentiary hearing. Detective Injaychock maintained he observed scratches

on Defendant’s body and marked the scratches on the photographs taken the

night of the interview, which were admitted as Collective Ex. 6. The State and

defense dispute whether the scratches were fresh, healing, or old wounds. The

Court finds that this dispute does not provide a basis for a Franks/Little

hearing.

The record supports these determinations by the trial court, that the defendant was not

entitled to a Little hearing and that, even absent the assailed statements, search warrant 406

provided sufficient probable cause its issuance and the subsequent search and seizure.

As we have set out, the trial court concluded, and we concur, that a search warrant

was not needed because of the defendant’s status as a parolee at the time. Accordingly, his

arguments as to deficiencies in the several search warrants are academic, for he had waived

his right to make this claim.

B. Suppression of Search Warrants 508, 509, 512, and 513

Additionally, the defendant argues that evidence seized through subsequent warrants

508, 509, 512, and 513 should have been suppressed because they were obtained as the result

of search warrant 406, which he argues was, itself, defective. The State responds that,

because search warrant 406 was lawfully obtained, search warrants 508, 509, 512, and 513

were, likewise, lawful. Previously, we have determined that, as a parolee at the time of the

issuance of these warrants, the defendant had waived his Fourth Amendment rights. This

waiver extended to search warrant 406, as well as to 508, 509, 512, and 513. Accordingly,

this assignment is without merit.

II. Error in Denying Motion to Suppress Wi-Fi Evidence

On appeal, the defendant argues that the holding in United States v. Jones, __ U.S. __,

132 S. Ct. 945 (2012), which reviewed whether a search warrant was required for placement

of a global positioning device on a vehicle, supports his claims regarding the Wi-Fi evidence

in this matter. We disagree that this case can be extended to support seizure of a defendant’s

cell phone records from a third party. Further claims he might have in this regard are waived

because of his parolee status. Accordingly, this claim is without merit.

-29-

III. Error in Denying Defendant’s Motion to Recuse Trial Judge

The defendant’s specific complaint is that the trial judge should have recused herself

from the trial of this matter because she had earlier issued several search warrants in the

matter, based upon the affidavits of Detective Andrew Vallee of the MNPD. Further, the

trial court entered an order that the issuance of the warrants not be disclosed to anyone

“unless such person has a bona fide need to know to comply with said search warrant.” The

State responds that the defendant’s recusal motion was transferred to another trial judge, who

denied the motion.

Recently, in State v. William Lance Walker, No. M2011-02588-CCA-R3-CD, 2013

WL 5436704 (Tenn. Crim. App. Sept. 27, 2013), perm. app. denied (Tenn. Jan. 16, 2014),

this court considered whether a trial court’s issuing a search warrant required subsequent

recusal from later-related issues:

In denying the motion, the court relied on State v. Hawkins, 586 S.W.2d 465,

465 (Tenn. 1979), which states that “[i]t has long been provided . . . that the

magistrate who issues a search warrant may hear and determine any contests

concerning its validity or the grounds upon which it was issued.”

A trial judge should grant a motion to recuse whenever his or her

impartiality can reasonably be questioned. Alley v. State, 882 S.W.2d 810,

820 (Tenn. Crim. App. 1994). Recusal is “warranted when a person of

ordinary prudence in the judge’s position, knowing all of the facts known to

the judge would find a reasonable basis for questioning the judge’s

impartiality.” Id. The standard of review on appeal is whether the trial court

abused its discretion by denying the motion. Bd. of Prof’l Responsibility v.

Slavin, 145 S.W.3d 538, 546 (Tenn. 2004); State v. Cash, 867 S.W.2d 741,

749 (Tenn. Crim. App. 1993).

At the time the trial court considered the motion to recuse, the Code of

Judicial Conduct stated, in pertinent part, that disqualification is required when

“the judge’s impartiality might be reasonably questioned, including but not

limited to instances where the judge has a personal bias or prejudice

concerning a party or a party’s lawyer, or personal knowledge of disputed

evidentiary facts concerning the proceeding[.]” Tenn. S. Ct. R. 10, Canon

3.E.(1)(a) (2010). We note that Canon 3.E.(1)(a) has since been amended to

revise the section numbers, but the language remains the same as when the

trial court considered the motion to recuse. See Tenn. S. Ct. R. 10, Canon

2.11(A)(1) (2013). A trial judge “is not disqualified from hearing a case

because he or she has knowledge of the facts of the case.” State v. Thornton,

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10 S.W.3d 229, 237 (Tenn. Crim. App. 1999) (citing State ex rel Phillips v.

Henderson, 220 Tenn. 701, 423 S.W.2d 489, 492 (Tenn. 1968)). Likewise, a

judge “who initially issues a search warrant is not thereafter so interested in

the cause as to be disqualified[.]” Hawkins, 586 S.W.2d 465.

Id. at *13.

Applying the holding in William Lance Walker, we conclude that this issue is without

merit.

IV. Trial Evidence Insufficient to Sustain Convictions for

First Degree Premeditated Murder and Especially Aggravated Robbery

The defendant argues that the evidence presented at trial was insufficient to support

his convictions for first degree premeditated murder and especially aggravated robbery. The

State disagrees.

In considering this issue, we apply the rule that when sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after

viewing 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.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in

criminal actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);

State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,

604 (Tenn. Crim. App. 1992). The same standard applies whether the finding of guilt is

predicated upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

A criminal offense may be established entirely by circumstantial evidence. State v.

Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight to be

given the circumstantial evidence and the extent to which the circumstances are consistent

with the guilt of the defendant and inconsistent with his innocence. State v. James, 315

S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty to exclude every

other reasonable hypothesis except that of the defendant’s guilt in order to obtain a

conviction based solely on circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370,

380-81 (Tenn. 2011) (adopting the federal standard of review for cases in which the evidence

is entirely circumstantial).

All questions involving the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

-31-

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). Our

supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be given

to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of

innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that

on appeal a convicted defendant has the burden of demonstrating that the evidence is

insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The State’s proof established the business and personal relationship between Mr.

Bozza and the defendant, as well as Mr. Bozza’s being upset because of an earlier child

custody hearing. He testified that custody “went from a 50/50 split to a 5/2 split instead.”

Mr. Bozza said that, once, he and the defendant talked about a “crisscross,” as in the movie

Throw Momma from the Train, and that Mr. Bozza had brought it up “in a moment of

anger.” Later that day, the defendant came to Mr. Bozza and offered him “$10,000 to take

care of” the woman who had custody of the defendant’s son. Mr. Bozza said that, after the

death of the victim, the defendant told him he had followed the victim and “even run across

her path directly one time.” The day the victim was killed, he and the defendant talked on

the telephone “a number of times.” He said that, on that day, they met at a grocery store near

St. Edward’s Church, where the victim was dropping off their child. Later, the defendant

called Mr. Bozza and said that “it was done,” Bozza responding that “we have to talk later.”

Mr. Bozza said that, at the time, he “wasn’t quite sure” what the defendant was talking about,

but “in hindsight, [he] believe[s] we all understand what he was talking about.” Afterwards,

Mr. Bozza called the victim’s cell phone and then later received a call from the defendant,

telling Mr. Bozza “to quit calling her phone, that he had it, there was no need for [Mr. Bozza]

to call it anymore.” The defendant also told Mr. Bozza that “he had taken care of [Mr.

Bozza’s] problem and that [the victim] wouldn’t be a problem for [Mr. Bozza] anymore.”

A few weeks later, the defendant asked Bozza for $35,000.

The defendant’s girlfriend, Jennifer Addington, testified that she had taken a nine-

millimeter Hi-Point pistol from her estranged husband and kept it in the back of her van.

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“Sometime towards the end of July [2010], . . . [she] had gotten scared,” thinking she might

be arrested for taking the pistol, so she looked for it and found it was missing. She said that

on August 30, 2010, the defendant told her of the death of the victim and asked that she

utilize a computer to “see if there was [sic] any news articles . . . [h]e was concerned,” and

“to get any and every information [she] could find on Detective Crumby and his partner.”

Addington’s former husband, Jeff Walters, testified that he suspected she was

responsible for taking the pistol. Detective Andrew Injaychock testified that, acting upon

information from Walters that he had fired the pistol at a farm, and accompanied by him, he

recovered two spent shell casings at that location. TBI Special Agent Steve Scott testified

that the two spent cartridges recovered at the farm “had been fired in the same firearm that

fired the cartridge case that was found at the crime scene” and that the markings on all three

cartridges were “most common to firearms manufactured by a company called Hi-Point.”

Detective Andrew Vallee testified that telephone records showed that, between 11:29

and 11:43 a.m., there were five calls between the defendant and Mr. Bozza, all of them

connecting with an antenna “near” St. Edward’s Church. Chad Wilson testified that he was

an acquaintance of the defendant, and that on August 29, 2010, he received a telephone call

from the defendant, asking “how to take the battery out of an iPhone.” Wilson instructed him

how to do so. After Wilson learned of the victim’s death, he telephoned law enforcement

officers and made a statement about the conversation. After the defendant had been arrested

and was in jail, he telephoned Wilson, who felt that the call was threatening.

As we will explain, from all of this evidence, we conclude that a reasonable jury could

have determined that Mr. Bozza was angry with the victim because of the results of a child

custody hearing and discussed with the defendant his killing the victim and Mr. Bozza’s

doing the same to the woman who had custody of his child. The defendant stole a Hi-Point

pistol from the vehicle of his girlfriend, Jennifer Addington, and used it to kill the victim.

Prior to the killing, he had learned the victim’s normal routine and, the morning of the

crimes, had been near her church. He talked by telephone to Mr. Bozza before and after the

crimes and, after shooting the victim, took her cell phone, which he kept with him for a

period. Later that day, he called Mr. Bozza and said it was “done.” When Mr. Bozza called

his wife’s cell phone, the defendant answered and said to “quit” calling the phone, and there

was “no need . . . to call it anymore.” A few weeks later, the defendant asked Mr. Bozza to

pay him $35,000. Additionally, the defendant obtained information about the investigating

officer and another witness and threatened both of them. Accordingly, we conclude that the

evidence is sufficient to support both of the defendant’s convictions.

V. Error in Admitting Timothy Bozza’s Interview With the Police

On appeal, the defendant argues that Mr. Bozza’s prior statement does not qualify as

-33-

a prior inconsistent statement; that the court should have admitted only those portions of the

statement inconsistent with his trial testimony; and that the court should not have instructed

the jury that it was to consider all of Mr. Bozza’s statements as substantive evidence and not

just those which were inconsistent with his trial testimony. The State responds that the court

dealt properly with Mr. Bozza’s prior tape-recorded statement because of his denying, during

the State’s direct examination, important and relevant recorded assertions.

We will set out the trial events which are the basis for this assignment.

Mr. Bozza’s prosecution was severed from that of the defendant, and he testified on

behalf of the State at the defendant’s trial. While the State’s theory was that Mr. Bozza hired

the defendant to kill the victim, Mr. Bozza said at trial that the defendant had misunderstood

a “bad joke” of his that they “crisscross,” the defendant killing Mr. Bozza’s wife, while Mr.

Bozza do the same to the mother of the defendant’s son.

During the State’s direct examination of Mr. Bozza, he was asked a series of

questions regarding his contacts with the defendant shortly before and after the death of the

victim. Following a series of equivocal responses by Mr. Bozza, the State asked if he had

“told [the State he] had knowledge prior to the murder that this was going to happen.” He

first gave a negative response and, when questions continued regarding the same matter, he

responded, “Well, I mean, we talked about an awful lot of things, sir.” At that point, the

State asked to play for the jury a prior recorded statement of Mr. Bozza, which the State

represented was inconsistent with his trial testimony. After the court had questioned the

State about the specifics of the statement, Mr. Bozza was further questioned as to the date

the statement was recorded and who was present. After the statement was viewed by the

court, the parties, and the defendant, out of the presence of the jury, the court advised

counsel that the portion of the statement in which Mr. Bozza had responded to questions

regarding a polygraph could not be played for the jury because it was beyond the scope of

his direct examination to that point. The court ruled that the remainder was “a prior

inconsistent statement [which could] come in as substantive proof.”

On appeal, the defendant argues that the recorded statement did not qualify for

admission under Tennessee Rule of Evidence 803(26) because it was not inconsistent with

his trial testimony; even if portions of it were inconsistent, the remaining parts of the

statement should not have been admitted; and that the court erred in its instructions to the

jury regarding this statement.

We have carefully reviewed the trial transcript regarding this matter. While the

defendant did seek clarification as to the procedure for playing Mr. Bozza’s statement for

the jury, it does not appear that he made the same specific objections to the statement at trial

as are made on appeal. Accordingly, we conclude that this issue is waived. See Tenn. R.

-34-

App. P. 36(a). Additionally, in view of the strength of the evidence against the defendant,

if the court erred in admitting the statement, the error was harmless.

VI. Evidence of Threats by Defendant

During the trial, Chad Wilson testified that the defendant telephoned him from jail

and made threatening statements; and Detective Crumby testified that the defendant made

a threatening phone call to him, as well.

At trial, Chad Wilson testified that the defendant telephoned him on August 29, 2010,

and asked how to remove a battery from an iPhone. In response, Wilson explained how this

could be done. After Wilson learned of the victim’s death, he telephoned police and told of

his call from the defendant. Following the defendant’s arrest, he telephoned Wilson several

times, and Wilson explained that he believed the last of the calls to be threatening.

Detective Crumby testified that, after he served a search warrant at the home of the

defendant’s mother, he began receiving anonymous telephone calls:

Q. After you served that search warrant, did you start getting some phone

calls?

A. I did.

Q. And can you just describe to the jury what was said to you basically?

A. It was basically a male’s voice on my cell phone. It was a gravelly voice.

He was telling me I messed with the wrong person, he knows where my family

lives, you push a man so far. But it was a person trying to . . . hide their voice.

Q. Did you continue to receive these phone calls?

A. I did.

Q. And did you eventually identify who was making them?

A. I did. On one particular I believe it was morning the same call came in.

I saw it was a blocked number, and I answered. It was the same gravelly

voice, somebody trying to hide their, you know, voice. And during the phone

call they said you put my mom in the hospital. The person on the other line.

And at that minute I said, Corey, we didn’t put your mom in the hospital, I was

really nice to your mom. We actually got her some water and sat at the table

-35-

with her. Then he started talking normal to me, you know, without trying to

hide his voice. And he was talking normal on the phone to me. And he said

that . . . we put his mom in the hospital, we upset her, and that we were mean

to her. He continued to state that he knows where my family lives, he knows

where my parents live, he knows how old my son is, he knows what we drive.

He also said that . . . you can only push a person so far and you’ve messed

with me and you’ve messed with my family and so on.

Q. Were you actually given some police protection after those calls?

A. I was.

Q. Now, . . . where was [the defendant] arrested?

A. Glasgow, Kentucky, I believe, or Barren County, Kentucky. In Kentucky.

Q. Did you transport him back to Tennessee to face these charges?

A. I did.

Q. And when you were in booking, did he make any further statements to you

about you and your family?

A. When we pulled into the back parking lot at the booking station, we got

him out of the car and we were walking up to the door. He stated that, you

know, you and me are a lot alike, I’ve got a son, I also know about your son

. . . and I know where he goes to school at Holy Rosary. And he was talking

about my son.

Q. You perceived that to be threatening?

A. I did.

Addington said she was “terrified” the defendant would find out she was cooperating

with the police.

The defendant argues that this testimony is irrelevant and that its prejudicial effect

outweighs its probative value.

Relevant evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than

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it would be without the evidence.” Tenn. R. Evid. 401. All relevant evidence, subject to

certain exceptions, is generally admissible under Rule 402 of the Tennessee Rules of

Evidence. Relevant evidence may be excluded if “its probative value is substantially

outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.

Tennessee Rule of Evidence 404(b) provides as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action

in conformity with the character trait. It may, however, be admissible for other

purposes. The conditions which must be satisfied before allowing such

evidence are:

(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other than

conduct conforming with a character trait and must upon request state on the

record the material issue, the ruling, and the reasons for admitting the

evidence;

(3) The court must find proof of the other crime, wrong, or act to be

clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

Exceptional cases in which evidence of an accused’s prior bad acts will be admissible

include those in which the evidence is introduced to prove identity, intent, motive,

opportunity, or rebuttal of mistake or accident. State v. Drinkard, 909 S.W.2d 13, 16 (Tenn.

Crim. App. 1995); see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[7][a] (5th

ed. 2011). Where the trial judge has substantially complied with procedural requirements,

the standard of review for the admission of bad act evidence is abuse of discretion. State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Because the trial court in this matter complied

with the requirements of Rule 404(b), we review its rulings under an abuse of discretion

standard.

As to the telephone call from the defendant to Chad Wilson, the trial court made a

pretrial finding that the testimony regarding it was admissible to show that the defendant did

not own an iPhone and wanted to know how to unlock one:

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The call begins with a casual conversation where Defendant indicates

he was sending some guys from the Sheriff’s Office to him for work and Mr.

Wilson expresses his appreciation. Defendant then advises Mr. Wilson that he

has received the discovery in his case and he noted that it contained

information that Mr. Wilson called the police to tell them that Defendant

didn’t own an iPhone and that they discussed the pattern to unlock his phone.

He follows up indicating that the State’s “whole case consists of [Mr. Wilson]

and [inaudible name sounding like John],” which he said didn’t make sense to

him. He concludes the phone calls with Mr. Wilson by stating: “Just know I

know. Not sure what you thought was doing [sic] but not going to work. I

really appreciate it (sarcasm) and hope you get what you want.”

The tone of the conversation is consistent throughout and the Court

finds that Defendant did not make any explicit or implied threats to Mr.

Wilson. Thus, the Court cannot find that the recording is admissible on the

basis Defendant threatens the witness. However, the Court does not find that

there is necessarily a basis to exclude the admission of the call as the contents

of the call may be deemed relevant to show Defendant admitted he did not

own an iPhone and corroborate Mr. Wilson’s testimony that Defendant asked

him how to “unlock” an iPhone. The Court makes the preliminary ruling that

the phone call is admissible; however, after hearing the evidence at trial the

parties may request the Court to reassess its admissibility should the evidence

regarding the iPhone be cumulative.

Additionally, the court determined that Detective Crumby’s testimony regarding

threats by the defendant also was admissible:

Detective Crumby served as one of the officers on this case and

participated in the transport of Defendant when he was extradited to

Tennessee. Presumably Detective Crumby will be testifying at trial as to the

investigation of the murder. Detective Crumby testified before the Court as

to the generalized threats he received from Defendant on his cell phone as well

as more specific statements Defendant made about knowing the location and

schedules of Detective Crumby’s family members when Detective Crumby

transported him. The Court finds Detective Crumby’s testimony to be relevant

and will permit him to testify about the threats at trial.

As to Detective Crumby, we conclude that the record supports the trial court’s

determination that his testimony was relevant regarding what he perceived to be threats to

him by the defendant and, additionally, that its probative value outweighed any prejudice to

the defendant. Further, the record supports the trial court’s determination that Chad

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Wilson’s testimony about removing a battery from an iPhone was relevant to support his

testimony that the defendant did not own such a cell phone and as to how one could be

“unlocked.” Additionally, on appeal, the State acknowledges the State’s leading question

to Wilson as to whether he perceived the call from the defendant as “threatening.” However,

because the defendant did not object to this question, his objection on appeal, also, is waived.

VII. Defendant’s Affidavit of Indigency as Evidence

Following the defendant’s being indicted in this matter, he executed an affidavit of

indigency, and the public defender’s office was appointed to represent him. Subsequently,

the State sought a hearing as to whether the defendant qualified for court-appointed counsel.

At the hearing, the State presented evidence of his bank accounts and plans to travel to

Barbados. The defense responded with evidence contrary to that of the State and showing

that he had minimal assets, much less than the $25,000 to $50,000 which both sides agreed

a lawyer in private practice would charge to represent the defendant in the matter. The

defendant then filed a revised affidavit of indigency, stating that he had no income or money

available and that his ownership of an automobile valued at $16,000 was subject to a lien.

At trial, the State argued that the indigency affidavit was admissible to show that the

defendant had neither income nor assets to travel to Barbados, as he was planning to do. The

defendant objected to the evidence, asserting that it was prejudicial to the defendant to show

his financial status and other evidence was available to the State for what it was seeking to

show. The trial court directed that the heading “Uniform Affidavit of Indigency” be removed

from the copy to be admitted into evidence but that, otherwise, the affidavit was admissible

to show “whether or not [the defendant] had a motive to get money.”

Subsequently, at the trial, the State’s lengthy opening statement included the remarks

that the defendant “was in financial trouble [and] had no money . . . . That was the perfect

storm. You had Mr. Bozza upset, you had [the defendant] needing money. They came up

with a plan. That plan was for [the defendant] to kill Veronica Bozza for $10,000.” During

the cross-examination of the defendant, he was asked various questions about his distressed

financial situation, sometimes with references to the affidavit of indigency. During rebuttal

argument, the State asserted that the only conclusion was that “Tim Bozza [and the

defendant] planned for their big event, planned to make a lot of money, solve all their

problems, trip off to Barbados together where they couldn’t be extradited.”

On appeal, the defendant argues that the affidavit was irrelevant and should have been

excluded pursuant to Tennessee Rules of Evidence 401 and 402. Citing State v. Leach, 148

S.W.3d 42, 54 (Tenn. 2004), the State responds that the evidence and related questions were

relevant to show that the defendant “had a financial interest in the victim’s death.” We note

that in State v. Reid, 213 S.W.3d 792, 813-15 (Tenn. 2006), our supreme court explained that

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evidence of a defendant’s financial status was relevant:

In our view, evidence that a defendant is poor, without more, has little

probative value. As observed by the Ninth Circuit Court of Appeals, “A rich

man’s greed is as much a motive to steal as a poor man’s poverty. Proof of

either, without more, is likely to amount to . . . unfair prejudice with little

probative value.” [United States v.] Mitchell, 172 F.3d [1104,] 1108-09 [(9th

Cir. 1999)]. The better rule, therefore, is that the State must introduce proof

of “something more” than a defendant’s poverty in order to meet the threshold

of relevance necessary for admission.

In this instance, “something more” was proof that despite the loss of his

job without severance pay, the defendant had made several cash purchases

totaling in excess of $800, had sought to invest $3000, and had over $1000 in

coins in his possession at the time of his arrest. That the defendant had no

legitimate source of income following the termination of his employment,

coupled with proof of these expenditures shortly after the robbery, was

relevant, circumstantial evidence of the commission of the crimes.

Accordingly, the trial court did not err in admitting testimony about his

financial condition at the time of the crimes.

Id. at 814-15.

We conclude that this issue is without merit.

VIII. Jury Instruction as to Parole Eligibility

On appeal, the defendant complains about the response of the trial court to a question

for the jurors during deliberation. We will examine this issue.

Prior to the trial, the State filed notice that it was seeking a sentence of life

imprisonment without the possibility of parole. Following the jury’s concluding that the

defendant was guilty of first degree premeditated murder and that the State had proven the

existence of both aggravating circumstances, the trial court instructed the jury, at the

sentencing portion of the trial, regarding the effect and meaning of a life sentence:

It is now your duty to determine, within the limits prescribed by law,

the penalty which shall be imposed as punishment for this offense. Tennessee

law provides that a person convicted of murder in the first degree shall be

punished by death, by imprisonment for life without the possibility of parole,

or by imprisonment for life.

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The State, however, is not seeking the death penalty. A defendant who

receives a sentence of imprisonment for life shall not be eligible for parole

consideration until the defendant has served at least fifty-one (51) full calendar

years of such sentence. A defendant who receives a sentence of imprisonment

for life without parole shall never be eligible for release on parole.

Additionally, the jury was instructed as to the differing available punishments of life

without parole and life with parole:

Therefore, we, the jury, unanimously find that the punishment shall be

either a) we the jury unanimously agree that the defendant shall be sentenced

to imprisonment for life without the possibility of parole, or b) we, the jury,

unanimously agree that the defendant shall be sentenced to life, to

imprisonment for life.

The jury’s written question was as follows:

If they change the definition of life in prison will that reduce his sentence[?]

For instance, if the law changed to where someone who was sentenced to life

was eligible for parole in 25 years, would [the defendant] also be eligible for

parole in 25 years[?]

The trial court responded to the jury’s question:

A person is sentenced according to the law in effect at the time of his

crime. However, the legislature may change the law and the sentence could

be reviewed.

According to the defendant, “[s]hortly after the trial court provided the jury with the

supplemental instruction, the jury imposed a sentence in count 1 of life imprisonment

without the possibility of parole.” The defendant argues that the giving of this instruction

deprived him of his right to due process of law. In response, while agreeing that the better

practice would have been for the trial court simply to have referred the jury to the original

instructions rather than provide the supplemental instruction, the State disagrees that it

entitles the defendant to a new trial.

As the State points out, the trial court’s instruction was not incorrect. In fact, the

legislature could reduce the parole eligibility for life imprisonment during a term being

served by the defendant. The court already had instructed the jury as to the difference in life

with and without parole. Because the trial court’s supplemental instruction did not alter what

the jury already had been told of the differences in the two sentences, it is not apparent what

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effect, if any, this instruction had on the final verdict. Accordingly, we conclude that this

assignment of error is without merit.

The defendant also argues that the evidence of aggravating circumstances was

insufficient. Prior to trial, the State filed notice of two aggravating circumstances:

1. The defendant was previously convicted of one (1) or more felonies,

other than the present charge, whose statutory elements involve the use of

violence to the person;

2. The defendant committed the murder for remuneration or the

promise of remuneration or employed another to commit the murder for

remuneration or the promise of remuneration[.]

The jury found that both circumstances were proven, and, on appeal, the defendant

contests only the second – that the defendant committed the crime for remuneration or

promise of remuneration. On appeal, the defendant argues that the State failed to prove this

circumstance.

As for the proof that the murder was for hire, the proof is abundant. Mr. Bozza

acknowledged that a few weeks after the defendant told him that the victim “wouldn’t be a

problem for [Mr. Bozza] anymore,” he came to Mr. Bozza’s house and asked for $35,000.

Regarding the death of the victim, Mr. Bozza responded to the State’s questions regarding

the tape-recorded statement given by him regarding his arrangement with the defendant to

kill the victim:

Q. And that tape that we just watched, that meeting was called by your

lawyer–

A. Yes, sir.

Q. – and you heard me state – the reason being you were finally going to

acknowledge there was a monetary agreement between you and [the

defendant]; is that correct?

A. Well, I wanted to get as much of the truth out as I was remembering at the

time, yes, sir.

Q. And did you not say, I told him I would give him $10,000?

A. Well, the statement was made that – when he offered, I said, that sounds

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like a good plan right there, but I can’t necessarily do that myself.

Q. Yeah, you couldn’t do the killing yourself?

A. No, sir.

Q. But then you said you would give him $10,000. Isn’t that what that said?

A. Well, it could be construed as that, yes, sir.

Q. Was it said, construed? Did you not just say you could give him $10,000?

And then you said you didn’t back off?

A. Exactly right. I never backed off of anything, no, sir.

Q. Okay. So that could be construed to have an agreement to pay $10,000?

A. Yes, sir, it could be. Absolutely.

Based upon this evidence, we conclude that a reasonable jury could have determined

that the killing of the victim was committed for remuneration or the promise of

remuneration.

IX. Errors in Sentencing

The defendant asserts that the trial court erred both in sentencing him to twenty-five

years for his especially aggravated robbery conviction and ordering that it be served

consecutively to his life sentence for first degree premeditated murder. The State responds

that the record supports the trial court’s sentencing of the defendant.

In State v. Pollard, __ S.W.3d __, 2013 WL 6732667, at *7 (Tenn. 2013), our

supreme court held that “the abuse of discretion standard, accompanied by a presumption

of reasonableness, applies to consecutive sentencing determinations.” In this matter, the trial

court conducted an extensive sentencing hearing, explaining why the defendant’s sentences

would be served consecutively:

So, that leads us to the next issue in that whether or not he should get

consecutive or concurrent sentences. Now, I do find that he is an offender

whose record of criminal activity is extensive and in so doing I can also

consider the homicide in that, but he has a long record that goes back for a

long way and it, and when you look at it it is aggravated assault, aggravated

assault, assault, assaults, assaults, lots of times involving women.

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I think he has a record which is extensive with regard to that and he is

a dangerous offender whose behavior indicates little or no regard for human

life and no hesitation about committing a crime in which the risk to human life

is high.

Clearly, he is a dangerous offender. He, . . . based on the testimony at

trial[,] killed . . . [the victim] with absolutely no, quickly, followed her, did it

for his boss and there was obviously some discussion about the insurance

money. This is a dangerous offender . . . who stalked someone, went in on

them, killed them and left.

....

. . . Now, Wilkerson factors apply. For factor number 4, and that is in

order to have consecutive sentences it has to be based on the fact that the

aggregate term reasonably relates to the severity of the offenses and it is

necessary in order to protect the public from further serious criminal conduct

by the defendant.

Now, [defense counsel] makes a point that he has already been

sentenced to life without the possibility of parole and that therefore it’s not

necessary to protect the public further from serious criminal conduct by the

defendant. However, that in and of itself is not something that I need to look

at. Though, I find in this particular case given the history of [the defendant]

throughout the criminal history that is felonies after felonies, probation

violations, probation violations, and then the very serious nature of this

offense, which I have described and I will rely on the facts in the record about

the nature of this offense and just sort of the coldness and the way [the victim]

was executed, I find that it is necessary to protect the public from further

serious criminal conduct by the defendant. So, I am sentencing him to 25

years and it will be a consecutive sentence.

Tennessee Code Annotated section 40-35-115(b) provides that it is within the trial

court’s discretion to impose consecutive sentencing if it finds by a preponderance of the

evidence that any one of a number of criteria applies, including that “[t]he defendant is an

offender whose record of criminal activity is extensive,” that “[t]he defendant is a dangerous

offender whose behavior indicates little or no regard for human life and no hesitation about

committing a crime in which the risk to human life is high,” or that “[t]he defendant is

sentenced for an offense committed while on probation.” Tenn. Code Ann. § 40-35-

115(b)(2), (4), (6) (2010). When a trial court bases consecutive sentencing upon its

classification of the defendant as a dangerous offender, it is required to make further findings

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that the aggregate length of the defendant’s sentence reasonably relates to the severity of his

offenses and is necessary to protect the public from further criminal conduct of the

defendant. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson, 905

S.W.2d 933, 937-38 (Tenn. 1995). The criteria listed in section 40-35-115(b) are stated in

the alternative; therefore, only one need exist to support the appropriateness of consecutive

sentencing.

The record abundantly supports the determination of the trial court that the defendant

has an extensive criminal record and that he is a dangerous offender whose behavior

indicates little or no regard for human life and no hesitation about committing a crime in

which the risk to human life is high. Further, the trial court concluded that consecutive

sentencing was necessary because of the severity of the offenses and the need to protect the

public, and the record supports this finding as well. This assignment is without merit.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgments of the trial court

are affirmed.

_________________________________

ALAN E. GLENN, JUDGE

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