State of Tennessee v. Alonzo Hoskins

07/15/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 21, 2021

STATE OF TENNESSEE v. ALONZO HOSKINS

Appeal from the Criminal Court for Knox County

No. 111103 Bobby R. McGee, Judge

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No. E2020-00052-CCA-R3-CD

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A Knox County jury convicted the Defendant, Alonzo Hoskins, of six counts of felony

murder of the victim, based upon six underlying felonies, and one count of especially

aggravated robbery. The trial court merged the Defendant’s convictions for felony murder

and imposed a life sentence plus twenty years for especially aggravated robbery. On

appeal, the Defendant asserts that: (1) all counts of the presentment failed to allege an

offense; (2) the trial court erred when it denied his motion to suppress the cell phone

records; (3) the trial court erred by preventing defense counsel from making an inquiry or

proper record into the competency of a juror; (4) the prosecutor’s closing argument was

improper; and (5) the evidence was insufficient to support his convictions. After a

thorough review of the record and applicable law, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE

OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Keith Lowe, Knoxville, Tennessee, for the appellant, Alonzo Hoskins.

Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant

Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case arises from the May 30, 2017 shooting death of the victim, Jack McFall.

For his role in the victim’s death, a Knox County grand jury indicted the Defendant for

felony murder in the perpetration of an attempted robbery (count one), felony murder in

the perpetration of a robbery (count two), felony murder in the perpetration of an attempted

burglary (count three), felony murder in the perpetration of a burglary (count four), felony

murder in the perpetration of an attempted theft (count five), felony murder in the

perpetration of a theft (count six), and especially aggravated robbery (count seven).

A. Suppression Hearing

The Defendant filed a motion to suppress the cell phone records involved in this

case because the trial court lacked authority to issue the search warrant. At the hearing on

the motion, the Defendant testified that the cell phone number he owned at the time of this

killing ended in -0769. The State and the Defendant stipulated that the Defendant had a

cell phone in his possession at the time of his arrest. The Defendant argued that the trial

judge who signed the search warrant lacked authority to issue a warrant for property located

outside of his jurisdiction because the business address of AT&T, listed on the search

warrant, was in North Palm Beach, Florida, rather than in Tennessee. The Defendant

further argued that the search warrant did not establish a nexus between the cell phone data

and the crime.

The State argued that the affidavit of Lieutenant Heather Reyda was sufficient to

establish a nexus between the cell phone data and the crime. The State further contended

that the search warrant was sent to the AT&T office in North Palm Beach, Florida (the

address listed on the search warrant) because AT&T preferred to receive all subpoenas and

search warrants in one centralized location. The State noted that AT&T conducted

business and maintained data through its office in Knox County, Tennessee.

After hearing the arguments of the parties, the trial court denied the Defendant’s

motion to suppress. It found that although the search warrant was issued in Knox County

for cell phone records stored digitally in Florida, the Knox County judge was not

compelling disclosure in Florida. The trial court further found:

It is simply the way the business has asked for the matter - - for this process

to occur, wherein a [S]tate of Tennessee search warrant can be honored

even though they digital - - digitally stored materials may be in a different

state. At any rate, I don’t see that this is a search conducted in violation

of the service provider’s rights or the [D]efendant’s rights.

B. Trial

At the Defendant’s trial, the parties presented the following evidence: the victim’s

wife, Sandra McFall, testified that the victim’s cell phone number at the time of his death

ended in -7367. Ms. McFall testified that she first saw the Defendant, whom she knew as

“T,” in January or February 2017, as he was walking around in her yard having a

conversation with the victim. She said that the two were accompanied by another, darker

complected, African-American man. Ms. McFall testified that the Defendant wore his hair

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in “corn rows,” and the other man had a “small afro” hairstyle. Ms. McFall testified that

the victim walked with a cane due to a stroke that affected the left side of his body.

Ms. McFall said that she saw the Defendant a second time in April 2017 when he

knocked on the door of her residence and asked for the victim. She said that the victim

allowed the Defendant into the residence, but she did not hear their conversation. Ms.

McFall testified that she returned from vacation on May 22, 2017, to accompany the victim

to a doctor’s appointment scheduled for the following day. She noted that the victim was

upset when she arrived home about some pain pills that he had purchased from the

Defendant. Ms. McFall explained that the victim purchased the pills from the Defendant

to resell. She said that the victim called the Defendant many times, and he became irate

that the Defendant did not answer the phone. She identified the receipt from Rocky Hill

Family Physicians as the payment that the victim made for the May 23 appointment. Ms.

McFall testified that at some point after 4:15 p.m. on May 30, 2017, the victim left home

after receiving a communication from “someone.”

On cross-examination, Ms. McFall admitted that she did not approve of the victim

selling pain pills, and she attempted to separate herself from his activities. She did not

think that any threats were exchanged between the victim and the Defendant.

On redirect examination, Ms. McFall read into evidence several text messages from

the victim’s cell phone records. She identified an exchange, occurring on May 24, 2017,

between the victim’s cell phone number and “T’s new number,” meaning the Defendant’s

cell phone number which ended in -0769. On that day, the Defendant texted the victim:

“Call me, Jack. It’s important. This is T.” One minute later, the Defendant texted the

victim: “It’s about business. I need to make sure everything was straight the last visit. I

just got a call from somebody and they tell me something wasn’t right with that order.”

The victim then replied: “You gave me 105 instead of 110 and 35 of them are fake.”

Three days later, on May 27, 2017, the Defendant texted the victim: “What’s up,

Jack.” The victim replied: “When are you going to be coming in?” The Defendant replied:

“Monday. How many you want me to bring you?” The victim texted the Defendant: “The

40 you owe me, plus 60.” On May 30, 2017, the victim sent a text message to the Defendant

asking: “What happened to Monday?” A short time later, the victim received a text

message from a cell phone number ending in -0853, which was entered into the victim’s

phone as also belonging to “T.” The message read: “What’s up, Jack?” To which the

victim replied: “Who is this?” The Defendant texted: “T.” The Defendant next asked:

“You ready?” At 4:39 p.m. the victim replied: “Sure.” Ms. McFall noted that the victim

then left the house soon after. The Defendant next texted the victim: “I’m not driving. I

took the bus again. Can you meet me at the room you took me to that one time you picked

me up?” The victim replied: “I can’t remember the room number.” The Defendant and

the victim exchanged several more texts, and the Defendant said: “The same room you

took me to at the Red Roof Inn, Strawberry Plains.” The Defendant then texted: “It’s 109

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total.” To which the victim replied: “I’m on my way.” The Defendant texted: “Okay call

me when you’re outside[]” and “$4,140.”

Lieutenant Heather Reyda of the Knox County Sheriff’s Office, Major Crimes Unit,

testified that on May 30, 2017, she received a call informing her that the victim had been

shot in the parking lot of the Red Roof Inn located near the Strawberry Plains Pike Exit on

Interstate 40. Lieutenant Reyda responded to the scene as the lead investigator and saw

that the victim was in his van still buckled in by the seat belt. The responding officers

informed her that the shooting had been captured on the hotel’s video surveillance camera.

She reviewed the surveillance video and saw what appeared to be one, darker complected,

black male and one lighter-complected black or Hispanic male (“the shooter”). From

reviewing the video, Lieutenant Reyda said that the shooter stepped out of the back of the

victim’s van, raised a weapon, and fired. In the video, another man, who wore a red shirt,

appeared unarmed but carried what appeared to be a white envelope. Lieutenant Reyda

also saw what appeared to be a light blue car with a black convertible top, possibly a

Chrysler Sebring, in the video.

Lieutenant Reyda testified that she obtained the victim’s cell phone and looked at

the last phone numbers to communicate with him, opining that the victim’s last contacts

would be the suspects in his murder. Lieutenant Reyda testified that with the assistance of

the Federal Bureau of Investigation (“FBI”), she began “pinging” the cell phone numbers

associated with the victim’s phone. She said that still photographs were immediately taken

from the surveillance video and released to the media. This led to a tip from a caller, who

identified himself as Tim Wells, for a possible suspect, and Lieutenant Reyda interviewed

Mr. Wells. He showed her a cell phone number entered into his phone ending in -0769,

which was one of the numbers that they were pinging. Mr. Wells had the contact

information for the phone number listed as belonging to “Alonzo Smith.” He also reported

seeing the Defendant on McCalla Avenue. Lieutenant Reyda testified that the victim’s van

was processed for evidence, and the Defendant’s fingerprint was found inside the van.

Lieutenant Reyda testified that as a result of pinging the Defendant’s phone, the

Defendant was located in Detroit, Michigan, and taken into custody on June 2, 2017. She

and her partner flew to Detroit and collected evidence, and they attempted to interview the

Defendant. Lieutenant Reyda testified that two men, Corey Crawford and Eric Fields, were

in the car with the Defendant at the time of his arrest. Further investigation proved that

Mr. Crawford’s fingerprints were found in an apartment that the Defendant had previously

rented located on McCalla Avenue in Knoxville. Lieutenant Reyda testified that, while

Mr. Crawford and Mr. Fields both matched the overall description of the man carrying the

envelope in the surveillance video, she was unable to positively identify the second man,

who wore the red shirt, in the video. Lieutenant Reyda identified a Chrysler key, which

operated a van found in Detroit, taken from the Defendant at the time of his arrest. She

was unable to locate the keys to the victim’s van.

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Lieutenant Reyda testified that she obtained consent from the homeowner at the

Defendant’s residence in Detroit to collect some items from the house. Those items

included a pair of camouflage shorts and a pair of black and white “retro” Air Jordan tennis

shoes. Lieutenant Reyda testified that the shorts and shoes resembled those worn by the

shooter in the surveillance video. A receipt for a pair of Air Jordan tennis shoes purchased

in Knoxville was also found in the Defendant’s Detroit residence. Lieutenant Reyda

testified that she observed the Defendant’s gait and hairstyle while they were in Detroit.

She said: “He had a very distinct gait. It would appear that his one foot kind of went out

really far and that he walked with a limp, which matched the walk of who I thought was

the shooter in the video.” Lieutenant Reyda testified that the Defendant’s hairstyle

appeared to be the same hairstyle of the shooter in the surveillance video. She noted that

the Defendant had a “very distinct receding hairline.”

Lieutenant Reyda testified that she had a “forensic dump” performed on the victim’s

phone. She then read the text messages between the victim and the Defendant into the

record that had already been read into the record by Ms. McFall. Lieutenant Reyda testified

that the victim had $140 in his shirt pocket at the time of his death. There was $1,000 in

an envelope found under the victim’s leg and $1,000 in an envelope on the floorboard of

the victim’s van. Lieutenant Reyda testified that she believed that the man in the video

dressed in the red shirt had what appeared to be a white envelope in his hand. She noted

that a total of $2,140 was recovered from the van, and if there were two other envelopes

taken from the van with $1,000 each, there would have been a total of $4,140.00, the

amount referenced in text messages between the victim and the Defendant.

Lieutenant Reyda testified that she also analyzed the Defendant’s phone records for

the phone numbers ending in -0769 and -0853. She said that the phones associated with

the two numbers were located in Knoxville on May 30, 2017, but they were not in the State

of Tennessee between May 23, 2017 and May 30, 2017. Lieutenant Reyda testified that

the global positioning (GPS) coordinates from cell phone towers for the cell phones

associated with the numbers ending in -0853 and -0769 showed that they were in the area

of McCalla Avenue in Knoxville at approximately 1:00 p.m. on May 30, 2017, when Mr.

Wells reported seeing the Defendant there. Based upon her investigation of the case,

Lieutenant Reyda identified the Defendant as the shooter in the video.

On cross-examination, Lieutenant Reyda confirmed that the phone number ending

in -0853 was the last number to contact the victim’s phone, and the number for the phone

in the Defendant’s possession at the time of his arrest ended in -0769. She said that

according to the victim’s phone, the number ending in -0853 belonged to “T,” which was

the Defendant’s “street name.” She agreed that the number did not exist in the victim’s

phone until shortly before his death and after the victim texted, “Who is this?” Lieutenant

Reyda admitted that she was unable to find any documentation that the Defendant owned

the phone associated with number -0853, and she did not recover a phone associated with

the number. She agreed that she had no personal knowledge as to who had access to the

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phone. Through her investigation, Lieutenant Reyda believed that the phone belonged to

and was used by the Defendant on May 30, 2017, in part because a text message to the

victim from the -0853 number read, “This is T.” She said that GPS coordinates also showed

that the phones were together at similar times and places from Detroit to Knoxville and

back to Detroit.

Lieutenant Reyda testified that the Defendant and the victim were both involved in

buying and selling pain pills, and the victim was in contact with other individuals about

buying and selling pills. She agreed that the Defendant appeared to be the victim’s supplier

of pills and that the Defendant brought them from Detroit to Knoxville. Lieutenant Reyda

agreed that her department originally issued a “Be On the Lookout” (“BOLO”) notice that

indicated that one of the suspects in the victim’s murder was white and the other was black.

On redirect-examination, Lieutenant Reyda testified that the phone associated with

-0769 was turned off sometime before the victim’s death. It was turned back on after his

death on the Defendant’s way back to Detroit. Lieutenant Reyda reiterated that the phones

associated with the numbers ending in -0769 and -0853 were together after leaving

Knoxville and while travelling back to Detroit.

Dr. Amy Hawes, a forensic pathologist employed by the Knox County Regional

Forensic Center, performed an autopsy on the victim’s body. She determined that the

manner of the victim’s death was homicide, and the cause of death was multiple gunshot

wounds.

In May 2017, Dondre Penn was working for the Detroit Police Department and was

assigned to the FBI task force. In June 2017, he was asked to assist the Knox County

Sheriff’s Office in locating the Defendant. Officer Penn testified that he located the

Defendant at a gas station in the Detroit area by “pinging” the Defendant’s cell phone.

Officer Penn noted that he had been advised to look for the cell phone and tennis shoes in

the Defendant’s possession and that the Defendant might be driving a Chrysler Sebring.

Officer Penn testified that the Defendant had the cell phone, associated with a cell phone

number ending in -0769, in his possession when he was taken into custody.

Michael Allen Mays, the custodian of records for the Knox County Emergency

Communications District, 911, testified that a call from Tim Wells came into the 911 center

at 1:02 p.m. on May 30, 2017. The call was played for the jury, and Mr. Mays stated that

Mr. Wells informed the operator that Alonzo Smith, whom he later identified as the

Defendant, was present on McCalla Avenue in Knoxville. Mr. Wells described the

Defendant as riding in a blue BMW accompanied by another man dressed in red. Mr. Mays

testified that a second call came into the 911 center at 5:41 p.m. on May 30, 2017. The call

came from the Red Roof Inn located on Crosswood Boulevard in Knoxville, Tennessee,

and the caller reported hearing gunshots. Mr. Mays testified that a BOLO was issued at

8:31 p.m. on that same date for a “[l]ate model Chrysler Sebring, two-door convertible,

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light blue and silver/black convertible top, possibly West Virginia tags.” The occupants of

the car were described as one black male and one white male. Mr. Mays agreed that the

description of the car did not match the description of the vehicle that the Defendant was

allegedly seen in at the time of the first call.

Samir Patel testified that he was employed by the Red Roof Inn and Suites located

on Crosswood Boulevard in Knoxville. He noted that the hotel had sixteen video

surveillance cameras located both inside and outside of the hotel. Mr. Patel testified that

on May 30, 2017, police notified him of a shooting. He arrived at the hotel and provided

a copy of the surveillance video to police.

Mr. Patel identified a receipt for Room 122 at the Red Roof Inn dated December

11-14, 2016. The room was registered in the Defendant’s name and listed his home address

in Grosse Pointe, Michigan. Mr. Patel also identified a receipt for Room 123 at the hotel

dated December 11-18, 2016. The room was registered in Justin Smith’s name and listed

his home address as a residence located on East Edgemont Avenue, Montgomery,

Alabama.

On cross-examination, Mr. Patel testified that there were two males in the

surveillance video wearing hoodies. He agreed that his testimony at the preliminary

hearing was that he believed one of the individuals was black and the other was white but

that he could not tell the race of the man with the lighter complexion from the surveillance

video.

Tim Wells testified that prior to May 30, 2017, he knew the Defendant as Alonzo

Smith rather than Alonzo Hoskins. Mr. Wells testified that he and his wife rented an

apartment to the Defendant on McCalla Avenue in east Knoxville. The lease was dated

January 2, 2017, in the name of Alonzo Smith. The Defendant’s brother, Justin Smith,

rented the apartment across the hall from the Defendant. Mr. Wells testified that, at some

point, the Defendant abandoned the apartment and did not pay rent for a couple of months.

Mr. Wells said that he saw the Defendant at the property at approximately 1:00 p.m. on

May 30, 2017, in a blue sedan that Mr. Wells thought was a BMW, and he called 911.

Later that day, Mr. Wells saw a story on the news about a shooting at an east Knoxville

hotel. He then saw either a video or a still shot of the blue sedan that he saw earlier in the

day, and he again called police. The car was later determined to be a blue Chrysler Sebring.

Mr. Wells testified that he knew the Defendant walked with a slight limp. He

viewed the surveillance video from the Red Roof Inn and Suites and noted that the

individual on the video appeared to walk with a limp similar to that of the Defendant. Mr.

Wells testified that the individual on the video who exited the back of a van appeared to be

the Defendant, agreeing that the individual had a hairstyle similar to the one Defendant

wore on May 30, 2017. Mr. Wells noted that the Defendant usually had two cell phones

on a lanyard around his neck, and he identified a photograph of the Defendant with two

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cell phones on a lanyard around his neck. On cross-examination, Mr. Wells agreed that he

had previously identified the Defendant’s vehicle as a white Cadillac Eldorado. He said

that someone else at the apartment told him that the car looked like a blue BMW.

On redirect examination, Mr. Wells testified that an unidentified man, dressed in

red, that Mr. Wells had seen with the Defendant in the car appeared to be the same person

in the video from the Red Roof Inn. Mr. Wells testified that there were three other cars at

the apartment when he saw the Defendant: a white Cadillac, an old Oldsmobile, and what

he believed to be a blue BMW. Mr. Wells did not see which vehicle the Defendant got

into, so he attempted to describe all of the vehicles to the 911 operator. Mr. Wells testified

that the image of the blue vehicle from the hotel, which was later determined to be a

Chrysler Sebring, appeared to be similar to the vehicle that he saw at the apartment. Mr.

Wells reiterated that he believed the man in the video from the hotel was the Defendant

based on similarities between their walk, hairline, and skin color. His identification was

further confirmed by the fact that, when he saw the Defendant that evening, he was

accompanied by a man dressed in red and the two were in a blue car similar to the one seen

in the video.

Philip Finara, an independent contractor who was the custodian of records for

AT&T at the time of trial, explained that AT&T’s information was stored in their network,

and records were kept in the normal course of business. Mr. Finara testified that “once a

subpoena [wa]s sent, information [wa]s pulled out and sent to the Court.” Pursuant to a

subpoena in this case, Mobility Usage Reports were prepared for two phone numbers

ending in -7367 and -0769. The report for the number ending in -0769 also included “cell

location.” Mr. Finara explained that his records included the cell site identification of the

cell phone tower the phone used, including the longitude and latitude of that particular

tower.

Kenneth LeCesne, the records custodian for T-Mobile, Metro PCS Cellular

Telephone Company, in Richland, Texas, testified that T-Mobile phone records were

maintained electronically. Mr. LeCesne further testified that call detail records were

actually phone logs that were kept at the time that calls were made or received by a T-

Mobile or Metro PCS customer. He received a search warrant from the Knox County

Sheriff’s Office for phone records from May 30, 2017, for a phone number ending in -

0853.

Shane Addington, the custodian of records for C&C Motor Company, testified that

the Defendant entered into a contract with the company on January 5, 2017, for the

purchase of a vehicle. Mr. Addington testified that the Defendant listed his phone number

on the contract as ending in -0769.

Rebecca Davis testified that she was visiting the zoo in Knoxville on May 30, 2017,

with her husband, John, and their children. They decided to stay overnight at the Red Roof

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Inn and Suites. Mrs. Davis testified that, just before 6:00 p.m., she and her family were in

the parking lot leaving for dinner when she heard at least two gunshots and saw two men

running. One of them she described as a black male wearing a red sweatshirt and armed

with a gun. She said that the other man was further away from her. Mrs. Davis testified

that she and her family got into the car, and her husband drove away. A car suddenly drove

up behind their vehicle and began tailgating them. Mrs. Davis testified that she was afraid

that they had just witnessed something at the hotel and that “somebody was coming after

[them].” Mrs. Davis testified that her husband pulled over, and the car passed them. She

thought the car was light blue or some other light color with either a Michigan or West

Virginia license plate. Mrs. Davis testified that her husband drove to a gas station, and she

called 911 and the hotel to report what they had seen. Mrs. Davis testified that she and her

family moved to a different hotel and later met with Lieutenant Reyda to give a statement.

On cross-examination, Mrs. Davis agreed that she told Lieutenant Reyda that she

thought the second man she saw running appeared to be either white or Hispanic but that

she did not get a good look at him.

Mrs. Davis’s husband, John Davis, testified and confirmed Ms. Davis’s account of

the events surrounding the shooting. He said that, as he attempted to buckle his son into

the car seat, he heard gunshots. He then saw an armed man run out from between two cars

parked near them. He also remembered hearing voices but could not tell what they were

saying. Mr. Davis saw other vehicles in the parking lot that were not there earlier. He

thought that the voices came from the area of those vehicles. Mr. Davis testified that, after

he and his family left the hotel, he remembered seeing a light-colored vehicle drive up

behind them.

Sandi Campbell of the Knox County Sheriff’s Department, Forensic Services Unit,

went to the Red Roof Inn and Suites on May 30, 2017, to collect evidence and document

the scene. Deputy Campbell testified that there were two envelopes in the victim’s van

each containing $1,000 in $100 bills. She saw a bullet hole in the interior driver’s side

door of the van, and officers found the projectile from a bullet inside the driver’s side door

panel. Deputy Campbell said that a .40-caliber cartridge casing was in the back driver’s-

side seat and that a second cartridge casing was in the front passenger seat. Deputy

Campbell testified that a piece of paper was recovered from the scene that had a fingerprint

lifted from it. A Cricket ZTE cell phone was collected from the victim’s left shirt pocket.

Deputy Campbell testified that the van’s interior was processed for fingerprints, and some

were obtained for further analysis. A bullet fragment was later recovered from the victim’s

abdomen during his autopsy. Deputy Campbell testified that she reviewed the surveillance

video, which showed one of the suspects wiping down both the inside and outside of the

van.

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Nikki Hoskins, the office manager for Rocky Hill Family Physicians, who

maintained the records for the practice, identified a credit card receipt from their online

processing system for the victim dated May 23, 2017, at 9:46 a.m.

Tom Finch of the Knox County Sheriff’s Office, Forensic Services Unit, testified as

an expert in the field of identification of latent fingerprints. He processed several items in

the present case for fingerprints, including the receipt from Rocky Hill Family Physicians.

Mr. Finch determined that a fingerprint from the receipt came from the Defendant’s left

ring finger.

Based upon this evidence, the jury convicted the Defendant of felony murder in the

perpetration of an attempted robbery, felony murder in the perpetration of a robbery, felony

murder in the perpetration of an attempted burglary, felony murder in the perpetration of a

burglary, felony murder in the perpetration of an attempted theft, felony murder in the

perpetration of a theft, and especially aggravated robbery. The trial court merged the

Defendant’s convictions for felony murder and imposed a life sentence plus twenty years

for especially aggravated robbery.

I. Analysis

On appeal, the Defendant asserts that: (1) all counts of the presentment failed to

allege an offense; (2) the trial court erred when it denied his motion to suppress the cell

phone records; (3) the trial court erred by preventing defense counsel from making an

inquiry or proper record into the competency of a juror; (4) the prosecutor’s closing

argument was improper; and (5) the evidence was insufficient to support his convictions.

A. Sufficiency of the Presentment

The Defendant asserts that each count of the presentment failed to provide notice of

the “acts he was charged to defend and fail[ed] to protect him from double jeopardy.” More

specifically, he complains that the presentment failed to allege the specific property taken

from the victim in counts one, two, five, six, and seven, and that it failed to allege the

specific theory of burglary in counts three and four. The State responds that the Defendant

has waived his argument with respect to counts one through six of the presentment because

he failed to include arguments as to those counts in his motion for new trial, and that despite

the waiver, all seven counts of the presentment were “sound.”

We agree with the State that the Defendant has waived this issue as to counts one

through six of the presentment because he only challenged count seven in the motion for

new trial as being void. Tenn. R. App. P. 3(e). While the Defendant did assert in his

motion for new trial that the trial court erred by denying his motion for a bill of particulars,

he does not raise the issue in his brief on appeal.

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Even if the Defendant did not waive his argument with respect to counts one through

six, all seven counts of the presentment were sufficient to inform the Defendant of the

nature of the charges against him. Challenges to the validity of an indictment or

presentment present questions of law and, thus, are reviewed de novo. State v. Hill, 954

S.W.2d 725, 727 (Tenn. 1997). Pursuant to the provisions of both the Tennessee and

United States Constitutions criminal defendants have a right to know “the nature and cause

of the accusation.” U.S. Const. amend. VI; Tenn. Const. art. I, § 9. “As Tennessee courts

have held, in order to satisfy the constitutional requirement, an indictment or presentment

must provide a defendant with notice of the offense charged, provide the court with an

adequate ground upon which a proper judgment may be entered, and provide the defendant

with protection against double jeopardy.” State v. Byrd, 820 S.W.2d 739, 741 (Tenn.1991);

see also State v. Duncan, 505 S.W.3d 480, 484 (Tenn. 2016). A “valid indictment is an

essential jurisdictional element, without which there can be no prosecution.” Dykes v.

Compton, 978 S.W.2d 528, 529 (Tenn.1998). Tennessee Code Annotated section 40-13-

202 (2018) states:

The indictment must state the facts constituting the offense in ordinary

and concise language, without prolixity or repetition, in such a manner as

to enable a person of common understanding to know what is intended,

and with that degree of certainty which will enable the court, on

conviction, to pronounce the proper judgment . . . .

Indictments or presentments are reviewed from an “enlightened standpoint of

common sense and right reason rather than from the narrow standpoint of petty preciosity,

pettifogging, technicality or hair splitting fault finding.” Hill, 954 S.W.2d at 728 (quoting

United States v. Purvis, 580 F.2d 853, 857 (5th Cir. 1978)). In a number of cases since

Hill, this court has held that an indictment meets statutory and constitutional requirements

if it “achieve[s] the overriding purpose of [providing] notice to the accused,” noting the

Court’s “relaxation of common law pleading requirements and its reluctance to elevate

form over substance.” State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000); see also

State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); Crittenden v. State, 978 S.W.2d 929, 931

(Tenn. 1998); Ruff v. State, 978 S.W.2d 95, 99 (Tenn. 1998). “It is generally sufficient for

the indictment to state the offense charged in the words of the statute.” State v. Majors,

318 S.W.3d 850, 864 (Tenn. 2010); see Sledge, 15 S.W.3d at 95. Additionally, “theories

available to support a conviction of [an] offense [are] not required to be included in the

indictment.” State v. Lemacks, 996 S.W.2d 166, 172 (Tenn. 1999); T.C.A. § 40-13-206(a).

As to the seven counts in this case, the presentment alleges:

The Grand Jurors for the State of Tennessee upon their oaths, present that

ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or about the 30th

day of May, 2017, in the State and County aforesaid, did unlawfully kill

Jack McFall during the attempt to perpetrate Robbery, in violation of

- 11 -

T.C.A. 39-13-202, and against the peace and dignity of the State of

Tennessee.

SECOND COUNT

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further

present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or

about the 30th day of May, 2017, in the State and County aforesaid, did

unlawfully kill Jack McFall during the perpetration of Robbery, in

violation of T.C.A. 39-13-202, and against the peace and dignity of the

State of Tennessee.

THIRD COUNT:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further

present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or

about the 30th day of May, 2017, in the State and County aforesaid, did

unlawfully kill Jack McFall during the attempt to perpetrate Burglary, in

violation of T.C.A. 39-13-202, and against the peace and dignity of the

State of Tennessee.

FOURTH COUNT:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further

present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or

about the 30th day of May, 2017, in the State and County aforesaid, did

unlawfully kill Jack McFall during the perpetration of Burglary, in

violation of T.C.A. 39-13-202, and against the peace and dignity of the

State of Tennessee.

FIFTH COUNT:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further

present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or

about the 30th day of May, 2017, in the State and County aforesaid, did

unlawfully kill Jack McFall during the attempt to perpetrate Theft, in

violation of T.C.A. 39-13-202, and against the peace and dignity of the

State of Tennessee.

SIXTH COUNT:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further

present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or

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about the 30th day of May, 2017, in the State and County aforesaid, did

unlawfully kill Jack McFall during the perpetration of Theft, in violation

of T.C.A. 39-13-202, and against the peace and dignity of the State of

Tennessee.

SEVENTH COUNT:

And the Grand Jurors aforesaid, upon their oaths aforesaid, do further

present that ALONZO HOSKINS, ALIAS, heretofore, to-wit: On or

about the 30th day of May, 2017, in the State and County aforesaid, did

unlawfully, knowingly by violence, take from the person of Jack McFall,

Property, where Jack McFall suffered serious bodily injury, said taking

accomplished with a deadly weapon, in violation of T.C.A. 39-13-403,

and against the peach and dignity of the State of Tennessee.

The presentment was sufficient because it provided the Defendant with notice of the

charged offenses, gave the trial court jurisdiction over the case, and protected the

Defendant from double jeopardy. This court has previously held that a felony murder

indictment or presentment must allege that the murder was committed during the

perpetration of, or the attempt to perpetrate, a felony but need not include specific

allegations of the elements and facts of the underlying felony. See State v. Alfonzo E.

Anderson, No. W2000-00737-CCA-R3-CO, 2002 WL 1558491, at *2 (Tenn. Crim. App.,

at Jackson, Jan. 9, 2002) (“specific allegations of the elements and facts of the underlying

felony are unnecessary”); Alan D. Lawhorne v. State, No. 273, 1990 WL 70908, at *2

(Tenn. Crim. App., at Knoxville, May 31, 1990) (“We do not think an allegation of the

underlying felony was necessary to the validity of the indictment”). Moreover, it is not

necessary for an indictment or presentment to allege what was taken during a robbery,

burglary, or theft. Majors, 318 S.W.3d at 864 (the indictment was valid despite the failure

to identify the “thing” with which the defendant tampered); State v. Guy L. Hines, No.

E2012-02456-CCA-R3-CD, 2013 WL 5940634, at *5 (Tenn. Crim. App., at Knoxville,

Nov. 5, 2013) (“while proof pertaining to [the elements of theft] is essential in order to

sustain a robbery conviction, the law is clear that the constitutional requirements necessary

to sustain an indictment are less exacting”); see also State v. Haynes, 720 S.W.2d 76, 83

(Tenn. Crim. App. 1986) (an indictment for burglary “must set forth and define the felony

intended to be committed” but it is “not necessary to set forth exactly what the burglar

intended to steal”). Finally, as pointed out by the State, a citation to the especially

aggravated robbery statute alone in count seven would have provided sufficient notice to

the Defendant of the charge against him. Charles A. Guess v. Phillips, No. W2019-01347-

CCA-R3-HC, 2020 WL 1875233, at *2 (Tenn. Crim. App., at Jackson, Apr. 15, 2020),

perm. app. denied (Tenn. Aug. 11, 2020). The Defendant is not entitled to relief on this

issue.

B. Denial of Motion to Suppress

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The Defendant contends that trial court erred in denying his motion to suppress cell

phone records related to his cell phone number ending in -0769. Citing State v. Frazier,

558 S.W.3d 145, 149 (Tenn. 2018), the Defendant argues that the warrant was void because

the trial court lacked jurisdiction to direct the service of the search warrant on AT&T in

North Palm Beach, Florida, for electronic records stored there. The Defendant further

contends that the warrant lacked a nexus between the records searched and the crime being

investigated.

The State responds that the trial court did not err by determining that the search

warrant was valid on its face. The State asserts that delivery of the warrant to a service

address in Florida simply complied with AT&T’s request to receive all warrants and

subpoenas in one location to facilitate its response. The State further argues that unlike

Frazier, where the “service address and the place to be searched were identical and beyond

the issuing court’s jurisdiction,” the address on the search warrant in this case was not

necessarily the place to be searched because the electronic records could have been

accessed in Knox County. We agree with the State.

Our standard of review for a trial court’s findings of fact and conclusions of law on

a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld

unless the evidence preponderates otherwise.” Id. at 23. As is customary, “the prevailing

party in the trial court is afforded the ‘strongest legitimate view of the evidence and all

reasonable and legitimate inferences that may be drawn from that evidence.’” State v.

Carter, 16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864

(Tenn. 1998)). Nevertheless, this Court reviews de novo the trial court’s application of the

law to the facts, without according any presumption of correctness to those conclusions.

See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d 295,

299 (Tenn. 1999). The trial court, as the trier of fact, is able to assess the credibility of the

witnesses, determine the weight and value to be afforded the evidence, and resolve any

conflicts in the evidence. Odom, 928 S.W.2d at 23. In reviewing a trial court’s ruling on

a motion to suppress, an appellate court may consider the evidence presented both at the

suppression hearing and at the subsequent trial. State v. Henning, 975 S.W.2d 290, 299

(Tenn. 1998).

The Fourth Amendment to the United States Constitution requires a search warrant

to contain a particular description of the items to be seized. See Henning, 975 S.W.2d at

296; see also U.S. Const. amend. IV. Furthermore, Article I, section 7 of the Tennessee

Constitution prohibits general warrants, and Tennessee Code Annotated section 40-6-103

requires search warrants to describe particularly the place and property to be searched.

State v. Bostic, 898 S.W.2d 242, 245 (Tenn. Crim. App. 1994); see also Tenn. Const. art.

I, § 7; T.C.A. § 40-6-103 (2018). To satisfy the particular description requirement, a

- 14 -

warrant “‘must enable the searcher to reasonably ascertain and identify the things which

are authorized to be seized.’” State v. Meeks, 867 S.W.2d 361, 372 (Tenn. Crim. App.

1993) (quoting United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981)); see also Henning,

975 S.W.2d at 296.

“Where the purpose of the search is to find specific property, [the

property] should be so particularly described as to preclude the possibility of

seizing any other [property]. . . . [I]f the purpose [of the warrant is to seize]

. . . any property of a specified character which, by reason of its character,

and of the place where and the circumstances under which it may be found,

if found at all, would be illicit, a description, save as to such character, place

and circumstances, would be unnecessary, and ordinarily impossible.”

Lea v. State, 181 S.W.2d 351, 352-53 (Tenn. 1944); see also Henning, 975 S.W.2d at 296.

For purposes of the Fourth Amendment, the search and seizure of places and things

implicate an individual’s reasonable expectation of privacy, while the seizure of property

occurs when there is “some meaningful interference with an individual’s possessory

interests in that property.” United States v. Jacobsen, 446 U.S. 109, 113 (1984).

In this case, the search warrant for the Defendant’s cell phone records for the

number ending in -0769 was sent to AT&T’s online service address for its “National Court

Order Compliance Section,” located in North Palm Beach, Florida.1 The search warrant

contained the following language concerning the records to be searched:

Proof by “Affidavit in support of search warrant,” which is specifically

incorporated by reference herein, having been made this day before me

that there is certain property, to wit: certain records of the above “Cellular

service provider” located at the “Cellular Service Provider Online Service

Address” all of which are accessed in the County of Knox, State of

Tennessee where there is probable cause to believe that the “Cellular

Service Provider” has in their possession or under their control said

records. Moreover, as set forth, there is probable cause to believe that

these records constitute evidence or tend to demonstrate that said

customer/subscriber participated in or holds evidence to the commission

of said violation.

YOU ARE THEREFORE COMMANDED to make a forthwith search of

records of the “Cellular Service Provider” located at the “Cellular Service

1

The State also obtained the same cell phone records pursuant to a subpoena duces tecum sent to

the address for AT&T in North Palm Beach, Florida, and a representative from ATT&T testified at trial

concerning the records. The Defendant filed a motion to quash the subpoena but the motion was abandoned

after the trial court denied the Defendant’s motion to suppress.

- 15 -

Provider Online Service Address” for the “Subscriber/Customer Phone

Number” during the “Target Time Period.” These records are identified

more specifically as: account holder name; address; local and long

distance telephone connection records; records of session times and

durations; length of service (including start date) and types of service

utilized; telephone or instrument number or other subscriber number or

identity of both incoming calls; and means and source of payment for such

service; AND INCLUDING incoming and outgoing text message records

including specific and actual text content, Internet communication records

including specific and actual internet communication content, AND

cellular site relay information including tower usage and meter strength of

calls made on said telephone and/or Global Positioning System

coordinates for the dates listed above all evidencing a criminal violation

by said subscriber and if you find such property or any part thereof to bring

it before the Court ALONG WITH AN ACCOMPANYING AFFIDAVIT

ATTESTING TO THE AUTHENCITY OF SUCH RECORDS without

unnecessary delay.

The trial court made the following findings at the suppression hearing concerning the

search warrant:

[I]t would appear that search warrant was issued here in Knox County,

Tennessee, and the records were apparently lodged or were stored, or

whatever, in North Palm Beach, Florida. And I’m aware that a Trial

Court’s jurisdiction to compel anyone to turn over material or to comply

with a search warrant is limited to the geographic limitations of the State

of Tennessee.

However, what appears to be happening here is that these are - - these

communication providing businesses to do business here in - - in Knox

County, Tennessee, are in Tennessee and their presence is nationwide,

maybe global, I don’t know. And what they have in one place, they have

in all of their places. It’s not like we’re talking about specific pieces of

paper that can only be in one place or another. This is digital information,

which can be accessed from many different places.

So my interpretation of what happened is that the Court - -the Knox

County Judge issued an order to this business for them to turn over certain

records. And the company - -rather than challenge the Court’s authority,

the company is simply asking for the State to facilitate this process by

faxing the warrant to another state, after which they comply and send the

records to the - - to the state.

- 16 -

So I don’t - - it would not appear that a Tennessee Judge is actually

compelling disclosure in Florida. It is simply the way the business has

asked for the matter - - for this process to occur, wherein a [S]tate of

Tennessee search warrant can be honored even though they digital - -

digitally stored materials may be in a different state. At any rate, I don’t

see that this is a search conducted in violation of the service provider’s

rights or the defendant’s rights. So the Court would deny the motion to

suppress on that ground.

....

Now, with regard to the nexus. It would appear that there was

information on the victim’s phone that the police looked at. And, of

course, there’s - - that, in no way, impacts any Constitutional right of the

defendant. They just - - they’re looking at the victim’s phone. And then

seeing the victim’s phone, they see that the victim made repeated calls to

a number that turned out to be the defendant’s phone. And from that, they,

based on their experience as law enforcement officers, believe that these

phone calls, happening in close temporal proximity close in time to the

crime itself, is a lead, a lead which is based on a probability that there’s

some connection between the attempted communication with the - - with

the defendant and the crime that, ultimately, the defendant had been

charged with.

This Court would find that there is probable cause to believe that the

fruits of the search would support a finding - - would support a conviction.

So the Court will deny the motion to suppress based on the lack of nexus.

And I understand it was the victim calling the defendant and not the

other way around, but it’s still evidence of a connection between the two.

And the court would find that does support the issuance of the warrant

The Stored Communications Act (“SCA”) was enacted as part of the Electronic

Communications Privacy Act of 1986, with the purpose of “protect[ing] the privacy of

users of electronic communications by criminalizing the unauthorized access of the

contents and transactional records of stored wire and electronic communications, while

providing an avenue for law enforcement entities to compel a provider of electronic

communication services to disclose the contents and records of electronic

communications.” In re United States for an Order Pursuant to 18 USC, 707 F.3d 283,

286-87 (4th Cir. 2013); 18 U.S.C. §§ 2701 et seq. Section 2703 (c) of the SCA provides:

- 17 -

(c) Records concerning electronic communication or remote computing

service –

(1) A governmental entity may require a provider of electronic

communication service or remote computing service to disclose

a record or other information pertaining to a subscriber to or

customer of such service (not including the contents of

communications) only when the governmental entity –

(A) obtains a warrant issued using the procedures described in the

Federal Rules of Criminal Procedure (or in the case of a State

Court, issued using State warrant procedures) . . . by a court

of competent jurisdiction;

(B) obtains a court order for such disclosure under subsection (d) of

this section;

(C) has the consent of subscriber or customer to such disclosure;

(D) submits a formal written request relevant to law enforcement

investigation concerning telemarketing fraud for the name,

address, and place of business of a subscriber or customer of

such provider, which subscriber or customer is engaged in

telemarketing (as such term is defined in section 2325 of this

title); or

(E) seeks information under paragraph (2).

18 U.S.C. § 2703(c) (emphasis added). A court of competent jurisdiction is defined by

Title 18 as, among other things, “a court of general criminal jurisdiction of a State

authorized by the law of that State to issue search warrants.” 18 U.S.C.A. § 2711. The

SCA does not provide for suppression of the evidence as an available remedy and states

that “[t]he remedies and sanctions described in this chapter are the only judicial remedies

and sanctions for nonconstitutional violations of this chapter.” 18 U.S.C. § 2708; United

States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014) (emphasis added). The SCA does not

specifically address whether a state court may authorize a search warrant for stored

- 18 -

electronic communications in another state, and Tennessee law does not authorize such a

procedure.2

The only case in Tennessee to address the issue of whether a trial court in Tennessee

may direct service of a search warrant for cell phone records stored in another state is

Christopher Lee Blunkall v. State, No. M2017-01038-CCA-R3-PC, 2019 WL 104136

(Tenn. Crim. App., at Nashville, Jan. 4, 2019), perm. app. denied (April 11, 2019). In that

case, the petitioner argued that trial counsel was ineffective for failing to file a motion to

suppress text message communications between himself and the victim because the circuit

court judge had no jurisdiction or authority to issue a search warrant to Verizon for the

records located outside of Tennessee. Id. A panel of this court agreed with the post-

conviction court’s findings that even if the cell phone records were initially suppressed,

‘“the State could have obtained the records by other, proper means by the time the jury trial

was conducted.’” Id. at *25. This court held that the Petitioner failed to show prejudice

“even assuming, arguendo, that trial counsel had been deficient by not filing any motion to

suppress the text message communications based upon deficiencies in the warrant. Id. The

Petitioner further argued that the circuit court judge lacked jurisdiction to issue a subpoena

to Verizon for the subscriber information to his cell phone. This court found that the

Petitioner had not shown prejudice by establishing that there was a reasonable probability

that a suppression motion would have been successful. This court noted that the Petitioner

had not provided evidence at the post-conviction hearing that the subpoena was served to

a person located outside of Tennessee or that Verizon’s headquarters was located in New

Jersey. Id. at * 27. This court noted that any defect in the subpoena “if raised at the proper

time, could have been cured by the State.” Id. at *28. In regard to the Petitioner’s argument

that because the trial court lacked jurisdiction to issue the subpoena, the information was

obtained in violation of the SCA, this court observed that suppression was not a remedy

for a violation of the SCA. Id. at *28; see Guerrero, 768 F.3d at 358.

Under Tennessee law, a “search warrant” is defined as an “order in writing in the

name of the state, signed by a magistrate, directed to the sheriff, any constable, or any peace

officer . . . commanding the sheriff, constable[,] or peace officer to search for personal

property, and bring it before the magistrate.” T.C.A. § 40-6-101. “A search warrant can

only be issued on probable cause, supported by affidavit, naming or describing the person,

and particularly describing the property, and the place to be searched.” T.C.A. § 40-6-103.

“No law enforcement officer shall search, examine, extract or duplicate any cellular

telephone data, even if incident to a lawful arrest, unless . . . [t]he officer has obtained a

search warrant issued pursuant to this part or Rule 41 of the Tennessee Rules of Criminal

Procedure[.]” T.C.A. § 40-6-110(b)(1). Additionally, “[n]o cellular telephone data that is

2

HB1187/SB1592 amended Tennessee Code Annotated, Title 39 and Title 40, relative to criminal

procedure to authorize law enforcement officers, district attorneys general, and the attorney general “to

seek criminal process for the production of wire and electronic communications and transaction records

pertaining to the communications” and “sets guidelines for the service of and compliance with the criminal

process.”

- 19 -

obtained in violation of this section may be used in any court of law or administrative board

as evidence, nor may other evidence that is derived from the illegally obtained data be used

as evidence in any such proceeding.” Id. § 40-6-110(c). “A magistrate with jurisdiction in

the county where the property sought is located may issue a search warrant[.]” Tenn. R.

Crim. P. 41(a). Circuit court judges may function as magistrates for the purpose of issuing

a search warrant. T.C.A. § 17-1-103(b) (2009).

In Frazier, which the Defendant relies on in support of his argument that the trial

court did not have jurisdiction to issue the warrant in this case, a judge of the 23rd Judicial

District of Tennessee issued search warrants for property located in the 19th Judicial

District. Our supreme court held that “in the absence of interchange, designation,

appointment, or other lawful means, a circuit court judge in Tennessee lacks jurisdiction to

issue search warrants for property located outside the judge’s statutorily assigned judicial

district.” Frazier, 558 S.W.3d at 146; see also United States v. Master, 614 F.3d 236, 241

(6th Cir. 2010) (general sessions judge in Franklin County, Tennessee, had no authority to

authorize a warrant for the search of the defendant’s property in Coffee County,

Tennessee).3

In our view, this case is distinguishable from Frazier. In this case, we agree with

the State’s argument and the trial court’s findings that the warrant is facially valid because

the address listed on the search warrant was simply a service address and that the trial court

had jurisdiction to issue the warrant because the electronic records could be accessed in

Knox County, Tennessee. The affidavit seeking to establish probable cause for a search

warrant must demonstrate a nexus between the criminal activity, the place to be searched,

and the items to be seized. State v. Smith, 868 S.W.2d 561 (Tenn. 1993). We agree with

the trial court that the affidavit provided a “substantial basis” for finding probable cause.

The evidence of the victim’s communication with the Defendant’s phone number

immediately before the murder established a nexus between those communications and the

murder.

Additionally, we find that if any error occurred in admitting the Defendant’s cell

phone records at trial, the error was harmless beyond a reasonable doubt. Even without

the phone records, the proof at trial of the Defendant’s guilt was overwhelming. The

victim’s wife testified that the Defendant, whom she knew as “T,” and the victim knew

each other, and the victim bought pain pills from the Defendant. Text messages from the

victim’s phone, to which law enforcement officers had lawful access, showed that he and

someone identifying themselves as “T” exchanged text messages immediately before the

victim’s murder, and the two agreed to meet at the Red Roof Inn in order for the victim to

3

We note that our Legislature recently added a second sentence to Tennessee Code

Annotated section 40-1-106, which stated: “The judges of chancery and circuit courts have

statewide jurisdiction to issue search warrants pursuant to chapter 6, part 1 of this title in any

district.” See 2019 Pub. Acts, c. 486, § 14, eff. July 1, 2019.

- 20 -

purchase pain pills from the Defendant. The Defendant listed his phone number ending in

-0769 on a contract for the purchase of a vehicle at C&C Motor Company, and he had the

cell phone number associated with -0769 in his possession at the time of his arrest. Tim

Wells identified the Defendant, whom he knew by another name, as being in Knoxville on

the day of the murder and as the person in the surveillance video who shot the victim.

Lieutenant Reyda further identified the Defendant as the person seen in the surveillance

video. The Defendant’s fingerprint was also found on a receipt in the victim’s van. A

receipt from the Red Roof Inn showed that the Defendant had stayed at the motel in the

past, and it listed the Defendant’s address in Michigan. Therefore, any error in the denial

of the motion to suppress the cell phone records was harmless beyond a reasonable doubt.

The Defendant is not entitled to relief on this issue.

C. Volume Complaint by a Juror

The Defendant asserts that he was denied the right to a unanimous jury verdict

because one of the jurors indicated that she was having trouble hearing the testimony. He

further argues that the trial court erred by preventing him from making an offer of proof

concerning the issue. The State responds that the issue is waived, and if not waived, the

trial court appropriately responded to the juror’s complaint.

After six witnesses had testified at trial, defense counsel notified the trial court of

the following: “We’re informed that, perhaps, juror number [nine] - - we were asked to

speak up if juror number [nine]’s having difficulty hearing, which concerns me because

this isn’t an A misdemeanor shoplifting. It’s a first-degree murder case.” Defense counsel

then suggested that the juror be brought in to determine how much of the trial she had not

heard. The following exchange occurred:

THE COURT: Well, there’s a - - there could be a lot of reasons to

suspect that, for one reason or another, a juror has not fully - - been able

to fully understand everything that’s been said in the trial. Sometimes the

matters that we talk about lack a good bit of that jargon about the cell

phones and the way they worked and what information they capture and

all that sort of thing. If you gave the jury a test to see how much of that

they absorbed, it might be remarkably low.

I don’t think the Court’s going to start engaging and going back to check

upon the jurors and see if they adequately understood the testimony that’s

been given. Both sides had a chance to voir dire everybody who’s on the

jury, ask them questions, make sure they could hear and understand the

spoken language. That’s about the best we can do.

Now, I’m going to begin asking the witnesses to speak up. I’ll ask counsel

to speak up. Everyone try to keep your voice up. And we will try to make

- 21 -

sure we get the testimony to the jurors. But I think it’s a very dangerous,

slippery slope to start going backward in time and trying to check up on

the jury to see - - to see if they have adequately absorbed the information

that’s been imparted from the stand.

I understand it’s very serious, but there’s no - -

[Defense Counsel]: Well, Your Honor - -

THE COURT: there’s no procedure set forth in the Rules of

Criminal Procedure about doing this kind of thing. And I don’t want to -

- I don’t want to open Pandora’s box here.

[Defense Counsel]: Well, Your Honor, I just want to make a record

here. This isn’t my hunch or suspicion. Officer Miller came into the

courtroom and said, juror number [nine] says, y’all need to speak up.

THE COURT: I understand that.

[Defense Counsel]: At which point I said, has she stated that she

couldn’t hear us? And Officer Miller indicated, yes, she stated she

couldn’t hear us.

THE COURT: I understand.

[Defense Counsel]: So this isn’t an unsubstantiated suspicion on my

part. I wouldn’t ask you to bring a juror - -

THE COURT: I understand that. I don’t doubt for a minute

that she and possibly other jurors have trouble hearing, and some may

have trouble understanding everything, and some may have trouble

understanding everything they do hear. And this is intrinsic in human life.

All we can do is try to make sure we get the information loud enough for

a person of ordinary ability to hear it.

I don’t doubt for a minute that she and, perhaps, others have failed to hear

some parts of the testimony. We had one - - we had one trial where one

guy kept nodding off, just flat going to sleep.

[Defense Counsel]: I would have moved for a mistrial. That’s not

a - - that’s not an independent juror at that point.

- 22 -

THE COURT: I understand that. As you - - as you well know,

there’s nothing in the Rules of Criminal Procedure that tell the Court

exactly what it should do.

[Defense Counsel]: I understand that. But, Your Honor, I have been

in courtrooms, as have the General, no doubt, as have you, where there’s

been an allegation that somebody had contact with a juror and that juror’s

been brought in and been questioned. I know that’s happened in Division

I. I was in the courtroom when it happened, so . . . I do have to make a

record here, Your Honor. I understand there’s no rule for it, but - -

....

THE COURT: - - if you’re talking about a jury being - - what

would you call it? - - poisoned by outside information relevant - - you

know, having to do with the case, that’s a different kind of matter. Jury

tampering is certainly something we do recognize. But just - - just

ordinary process of aging, some people don’t hear as well as others, that’s

just a fact of life.

And we voir dire. Everybody gets a chance to be satisfied that a juror can

- - can serve as a juror. And if not, you can ask the Court to excuse them

for cause. But I don’t think there’s anything to be gained by questioning

this woman about what she thinks she heard or what she thinks she didn’t

hear.

[Defense Counsel]: I understand, Your Honor. I would just make

one last point, that juror number [one] was actually questioned by the

State, do we need to speak up? Can you hear okay? And her response

was, yes, I can hear you fine.

THE COURT: I’ll be doing that. I’ll be checking with the jury.

There’s nothing wrong with the Court during - - during the process of the

trial to inquire and make sure the people can hear what’s being said.

[Defense Counsel]: Yes, Your Honor.

THE COURT: That’s the best the Court can figure out to do.

[Defense Counsel]: Your Honor, if we - - if your ruling is we cannot

determine whether or not juror number [nine] has missed substantial

portions of this trial due to her hearing, which she responds in voir dire

she had no problem with, so there’s no need to further voir dire her, I took

- 23 -

her at her word that she could hear fine. So there was no need to further

voir dire her on that issue.

If the ruling is we cannot determine if she’s missed substantial portions of

this murder trial, I have to ask for a mistrial, Your Honor.

THE COURT: I understand.

[Defense Counsel]: That’s my motion. I would - -

THE COURT: Does the State want to put anything on the

record about that?

[Defense Counsel]: - - greatly appreciate a ruling on that. Thank

you.

THE COURT: Certainly.

[The Prosecutor]: Yeah. I want to say again, at this point in time,

we do not know what, if anything, the juror has heard, what she has not

heard, if she has not heard anything. We don’t know what it is that she

said she’s having trouble hearing. Maybe it’s the lawyers. We don’t know

that there’s any proof in the record at this point in time whether or not she

has been unable to hear anything that the witnesses have said.

But, again, this is a situation where you’ve got to sit - - we just cannot

bring the jury - -the juror in here and inquire of the juror what, if anything,

she has heard. We just - - that - - I think that invades the province of the

jury.

Defense counsel then requested to call Officer Miller to the witness stand in order

to create a record concerning the issue. The trial court denied defense counsel’s request

and stated that it would not make any further inquiry into the matter. Defense counsel

asked to have the juror stay after trial “if there’s a verdict of guilt just so that we can inquire

how much of the trial she missed.” The trial court replied: “I’ll think about that. We’ll

consider - - continue to think about it.”

Initially, as argued by the State, we find that this issue is waived. Although the trial

court denied the Defendant’s request to question the juror during trial about whether she

had missed any testimony, the trial court indicated that it would consider having the juror

stay after trial for questioning about the matter. There is no evidence that the Defendant

requested any further questioning of the juror after trial nor did the Defendant present any

evidence concerning this issue at the hearing on the motion for new trial. Therefore, by

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“fail[ing] to take whatever action was reasonably available to prevent or nullify the harmful

effect” of the trial court’s denial of the Defendant’s request to question the juror during

trial, the Defendant has waived this issue. Tenn. R. App. P. 36(a). Moreover, the

Defendant has not demonstrated plain error because the trial court did not breach any clear

and unequivocal rule of law. See State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.

App. 1994); Tenn. R. App. P. 36(b).

In any event, “[t]he right to trial by jury is a fundamental right preserved by article

I, § 6 of the Tennessee Constitution and has ‘special resonance in criminal matters.’” State

v. Cleveland, 959 S.W.2d 548, 551 (Tenn.1997) (quoting Ricketts v. Carter, 918 S.W.2d

419, 424 (Tenn.1996)). The right to a unanimous verdict is included in the right to trial by

jury. Cleveland,959 S.W.2d at 551. Additionally, it “includes the right to have every fact

tried and determined by twelve jurors and to have all issues of fact submitted to the same

jury at the same time.” Id.; see also State v. Bobo, 814 S.W.2d 353, 356 (Tenn. 1991).

According to Tennessee Code Annotated section 22-1-103(a) (2009):

Any person may be excused from serving as a juror if the prospective juror

has a mental or physical condition that causes that person to be incapable

of performing jury service. The juror, or the juror’s personal

representative, must provide the court with documentation from a

physician licensed to practice medicine, verifying that a mental or physical

condition renders the person unfit for jury service.

“Unless there has been clear abuse, the trial court’s discretion in determining the

qualifications of jurors is not subject to review.” State v. Mickens, 123 S.W.3d 355, 375

(Tenn. Crim. App. 2003) (citing Lindsey v. State, 225 S.W.2d 533, 538 (1949)).

In this case, there has been no clear abuse of discretion by the trial court in its

response to juror number nine’s complaint about not being able to hear. As pointed out by

the State, the trial court was not required to inquire into how much testimony a juror may

have missed at trial. See State v. Mark Anthony Foulk, No. E2007-00944-CCA-R3-CD,

2009 WL 47346, at *12 (Tenn. Crim. App., at Knoxville, Jan. 8, 2009) (Although the trial

court did not ask the juror whether she had missed any testimony of the four witnesses who

testified prior to her request for an amplifier, the juror’s “statements on the subject indicate,

at most that she had experienced some difficulty in hearing and wanted assistance”). The

record contains no suggestion that juror number nine had any difficulty hearing the

testimony after the trial court addressed the juror’s complaint. Id.; see also State v.

Raymond G. McCarter, No. E2004-01639-CCA-R3-CD, 2005 WL 1996633, at *4-5

(Tenn. Crim. App., at Knoxville, Aug. 18, 2005) (No showing in the record that the juror’s

hearing impairment made her incapable of performing her duties). Both the trial court and

the State repeatedly ensured that the jury could hear both the testimony and questioning.

In fact, the jurors notified the court officer later in the trial that they were having difficulty

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hearing defense counsel. The court officer informed the trial court: “I had three of them

say that they can’t hear him. He needs to talk louder or talk into the mic.” The trial court

then directed the officer to remind defense counsel to talk louder. The Defendant is not

entitled to relief on this issue.

D. Improper Prosecutorial Argument

The Defendant argues that the prosecutor’s closing rebuttal argument was an

improper comment on the Defendant’s refusal to testify and that the trial court erred by

overruling the Defendant’s objection to the argument. More specifically, the Defendant

contends that the prosecutor improperly addressed the Defendant in front of the jury and

stated that the Defendant was responsible for the victim’s death. The prosecutor further

said that the Defendant and his accomplice could have taken the victim’s property without

killing him because he was disabled. The State responds that the prosecutor’s rebuttal

argument was not improper and did nothing more than restate the evidence that had been

presented to the jury.

Our supreme court has consistently opined on prosecutorial misconduct regarding

closing arguments as follows:

The basic purpose of closing argument is to clarify the issues that must be

resolved in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn. 2008).

While “argument of counsel is a valuable privilege that should not be

unduly restricted,” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975),

“such [ ] arguments must be temperate, based upon the evidence

introduced at trial, relevant to the issues being tried, and not otherwise

improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn.

Crim. App. 2003); Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim.

App. 1995); see also State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn.

1999). Because closing argument affords an opportunity to persuade the

jury, 11 DAVID L. RAYBIN, TENNESSEE PRACTICE: CRIMINAL

PRACTICE AND PROCEDURE § 29.2, at 97 (2008), leeway should be

given regarding the style and substance of the argument. Banks, 271

S.W.3d at 131; State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998).

Hence, counsel may employ “forceful language in their closing

arguments, as long as they do not stray from the evidence and the

reasonable inferences to be drawn from the evidence.” Banks, 271 S.W.3d

at 131.

State v. Sexton, 368 S.W.3d 371, 418-19 (Tenn. 2012).

As explained by our supreme court in Sexton, there are five general areas of potential

prosecutorial misconduct related to closing argument:

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(1) It is unprofessional conduct for the prosecutor intentionally to misstate

the evidence or mislead the jury as to the inferences it may draw. (2) It is

unprofessional conduct for the prosecutor to express his personal belief or

opinion as to the truth or falsity of any testimony or evidence or guilt of

the defendant. (3) The prosecutor should not use arguments calculated to

inflame the passions or prejudices of the jury. (4) The prosecutor should

refrain from argument which would divert the jury from its duty to decide

the case on the evidence, by injecting issues broader than the guilt or

innocence of the accused under the controlling law, or by making

predictions of the consequences of the jury’s verdict. (5) It is

unprofessional conduct for a prosecutor to intentionally refer to or argue

facts outside the record unless the facts are matters of common public

knowledge.

Sexton, 368 S.W.3d at 419 (citing Goltz, 111 S.W.3d at 6 (citations omitted)); see also

AMERICAN BAR ASSOCIATION, STANDARDS RELATING TO THE PROSECUTION

FUNCTION AND THE DEFENSE FUNCTION §§ 5.8-5.9 (1970).

Our supreme court has also advised that a criminal conviction should not be lightly

overturned solely on the basis of the prosecutor’s closing argument. Banks, 271 S.W.3d at

131 (citing United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57 S.W.3d

411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument does not

automatically warrant reversal)). “An improper closing argument will not constitute

reversible error unless it is so inflammatory or improper that if affected the outcome of the

trial to the defendant’s prejudice.” Id. (citing State v. Thacker, 164 S.W.3d 208, 244 (Tenn.

2005); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn. 1998)); see also State v. Reid, 164

S.W.3d 286, 321 (Tenn. 2005).

The Fifth Amendment to the United States Constitution provides that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.

amend. V. Similarly, article I, section 9 of the Tennessee Constitution provides that “in all

criminal prosecutions, the accused . . . shall not be compelled to give evidence against

himself.” Tenn. Const. art. I, § 9. Both provisions guarantee criminal defendants the

unfettered right to remain silent and not testify at trial. Carter v. Kentucky, 450 U.S. 288,

305 (1981). Both provisions further prevent the State from commenting on the accused's

silence. Griffin v. California, 380 U.S. 609, 615 (1965); Jackson, 444 S.W.3d at 586. It is

possible, however, for the State to describe the proof as uncontradicted or make other

indirect references to the defendant’s silence without infringing on the defendant’s Fifth

Amendment rights, so long as the defendant is not the only person who could offer the

contradictory proof. Jackson, 444 S.W.3d at 586-87 (internal citation omitted).

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This court reviews the propriety of prosecutorial comments regarding the right to

remain silent under a de novo standard and applies the following two-prong test:

(1) whether the prosecutor’s manifest intent was to comment on

[the][d]efendant’s right not to testify; or (2) whether the prosecutor’s

remark was of such a character that the jury would necessarily have taken

it to be a comment on [the] [d]efendant’s decision not to testify.

Jackson, 444 S.W.3d at 588.

At trial, the Defendant began shaking his head during the prosecutor’s rebuttal

closing argument, and the prosecutor said: “You can shake your head all you want.” At

that point, defense counsel objected and this colloquy took place:

[The Prosecutor]: You, [the Defendant], you, sir, are responsible

for pulling out that gun, pointing that gun at [the victim] - - and that’s the

sad thing, is that y’all could have taken the property without killing the

man. He’s disabled. He couldn’t move. He was buckled in.

[Defense Counsel]: Your Honor, I would object again. The

Prosecutor is still addressing my client. The jury is that way.

[The Prosecutor]: I’m arguing - - explaining to the jury. He’s

shaking his head.

[The Court]: She can address. She cannot make the

defendant do or say anything, but she can address him as a part of her

argument.

[Defense Counsel]: My objection for the record is improper

prosecutorial misconduct.

[The Court]: Very well.

[The Prosecutor]: All you had to do was take his property. It’s

not like he was going to tell if you stole from him, all right, ‘cause in order

for him to tell, he’d have to tell on himself for being a dope dealer.

Didn’t have to shoot him in the back. He was trying to get away, but

he couldn’t. He didn’t have any animosity for [the Defendant]. You see

that in the text messages. He didn’t threaten to turn [the Defendant] in for

[the Defendant] selling him some bad pills. He didn’t threaten that. He

just wanted it to be made right.

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That’s what we ask you to do, come back and tell [the Defendant],

you, sir, are guilty of the felony murder of [the victim]. That you, sir, are

guilty of the especially aggravated robbery of [the victim].

In denying the Defendant’s motion for new trial on this issue, the trial court declined to

find any error in the above statements and further found that “if it is legal error, then I’m

ruling that it was harmless.” The trial court told the prosecutor it was “not the best practice”

to directly address a defendant who had chosen not to testify. The record reflects that the

prosecutor turned and directly addressed the Defendant in this case.

We conclude that the prosecutor’s statements during rebuttal closing argument were

improper. The purpose of a closing argument is to address the jury and the prosecutor

should not have addressed the Defendant directly, particularly because the Defendant had

chosen not to testify. The prosecutor’s comment was inappropriate, as was the Defendant

himself shaking his head in front of the jury during the prosecutor’s closing argument.

However, we agree with the trial court that any error was harmless. The proof against the

Defendant, which included surveillance video of the crimes, was overwhelming.

Moreover, the trial court instructed the jury that “the statements, arguments and remarks

of the attorneys are intended to help you in understanding and applying the law but they

are not evidence. You should disregard any statements made that you believe are not

supported by the evidence.”

The trial court further instructed the jury:

The [D]efendant has not taken the stand to testify as a witness, you shall

place no significance on this fact. The [D]efendant is presumed innocent

and the burden is on the state to prove his guilt beyond a reasonable doubt.

He is not required to take the stand in his own behalf, and his election not

to do so cannot be considered for any purpose against him, nor can any

inference be drawn from such fact.

It is presumed that the jury followed the trial court’s instructions. State v. Reid, 164 S.W.3d

286, 323 (Tenn. 2005). The Defendant is not entitled to relief on this issue.

E. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to support his

convictions for felony murder in counts one, two, five, and six and especially aggravated

robbery in count seven because the “State failed to prove that anyone attempted to, or

succeeded in, illegally taking property from [the victim].” He further argues that the

evidence was insufficient to support his convictions for felony murder in counts three and

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four because the evidence did not prove that he or anyone that he was criminally

responsible for, entered the victim’s vehicle without consent. The State responds that the

evidence, based upon a theory of criminal responsibility, established that the Defendant

took the victim’s property and entered his vehicle without consent.

When an accused challenges the sufficiency of the evidence, this court’s standard

of review is whether, after considering the evidence in the light most favorable to the State,

“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 Tenn. R. App. P.

13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d

247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of both direct and circumstantial

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

State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct

evidence, a criminal offense may be established exclusively by circumstantial evidence.

Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be

given to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence,

and the extent to which the circumstances are consistent with guilt and inconsistent with

innocence, are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn.

2006) (quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of

review [for sufficiency of the evidence] ‘is the same whether the conviction is based upon

direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

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

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Nor may this court substitute its inferences for those drawn by the trier of fact from the

evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286

S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of witnesses, the

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

evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997). “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). The Tennessee 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.

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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,

527 (Tenn. 1963)). This court must afford the State of Tennessee the “‘strongest legitimate

view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate

inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting

State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a

defendant removes the presumption of innocence and raises a presumption of guilt, the

convicted criminal defendant bears the burden of showing that the evidence was legally

insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.

2000) (citations omitted).

“A person is criminally responsible as a party to an offense, if the offense is

committed by the person’s own conduct, by the conduct of another for which the person is

criminally responsible, or by both.” T.C.A. § 39-11-401(a)(2018). An individual is

criminally responsible for the conduct of another person if, “[a]cting with intent to promote

or assist the commission of the offense, or to benefit in the proceeds or results of the

offense, the person solicits, directs, aids, or attempts to aid another person to commit the

offense[.]” Id. § 39-11-402(2). Under the theory of criminal responsibility, “an

individual’s presence and companionship with the perpetrator of a felony before and after

the commission of an offense are circumstances from which his or her participation in the

crime may be inferred.” State v. Watson, 227 S.W.3d 622, 639 (Tenn. Crim. App. 2006)

(citing State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998)). In this situation,

“[n]o particular act need be shown, and the defendant need not have taken a physical part

in the crime to be held criminally responsible.” Id. (citing Ball, 973 S.W.2d at 293). To

prove a defendant’s guilt under the theory of criminal responsibility, the State must

establish that the defendant “‘knowingly, voluntarily and with common intent unite[d] with

the principal offender[ ] in the commission of the crime.’” State v. Maxey, 898 S.W.2d

756, 757 (Tenn. Crim. App. 1994) (quoting State v. Foster, 755 S.W.2d 846, 848 (Tenn.

Crim. App. 1988)). Criminal responsibility for the actions of another person “requires that

a defendant act with a culpable mental state, specifically, the ‘intent to promote or assist

the commission of the offense or to benefit in the proceeds or results of the offense.’” State

v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997) (quoting T.C.A. § 39-11-402(2)). “A person

acts with intent as to the nature or result of conduct when it is that person’s conscious

objective or desire to engage in the conduct or cause the result.” Id. (citing T.C.A. § 39-

11-302(a); Maxey, 898 S.W.2d at 757).

Felony murder is defined as “[a] killing of another committed in the perpetration of

or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,

kidnapping, aggravated child abuse or aircraft piracy.” T.C.A. § 39-13-202(a)(2). Robbery

is defined as “the intentional or knowing theft of property from the person of another by

violence or putting the person in fear.” T.C.A. § 39-13-401(a). Especially aggravated

robbery is robbery accomplished with a deadly weapon and where the victim suffers

serious bodily injury. T.C.A. § 39-13-403(a). “A person commits burglary who, without

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the effective consent of the property owner: . . . (4)[e]nters any . . . passenger car,

automobile, or truck . . . with intent to commit a felony, theft or assault or commits or

attempts to commit a felony, theft or assault.” T.C.A. § 39-14-402(a)(4). A theft of

property occurs when someone, with the intent to deprive the owner of property, knowingly

obtains or exercises control over the property without the owner’s effective consent.

T.C.A. § 39-14-103(a). Criminal attempt is defined as occurring when a person “acting

with the kind of culpability otherwise required for the offense” engages in “an act or acts

in furtherance of the attempted crime.” T.C.A. § 39-12-101.

In this case, the Defendant was charged with felony murder in perpetration of an

attempted robbery in count one, felony murder in perpetration of a robbery in count two,

felony murder in the perpetration of an attempted theft in count five, felony murder in the

perpetration of a theft in count six, and especially aggravated robbery in count seven. The

Defendant argues that the evidence as to those counts was insufficient to show that he

attempted to or succeeded in taking the victim’s property. However, viewed in the light

most favorable to the State, the proof established that, under a theory of criminal

responsibility, the Defendant took the victim’s property. Text messages exchanged

between the Defendant and the victim prior to the murder established that the victim

intended to purchase pain pills from the Defendant with a purchase price of $4,140. The

surveillance video from the Red Roof Inn clearly showed the Defendant’s accomplice leave

the victim’s van with a white envelope in his hand after the Defendant fatally shot the

victim. The police found $140 in the victim’s pocket when they arrived on the scene and

two white envelopes each containing $1,000 in $100 bills for a total of $2,140 in the

victim’s van. The keys to the victim’s van were never found.

From this evidence, a jury could reasonably infer that the Defendant and his

accomplice took the victim’s keys and the remaining $2,000 of the purchase price of the

drugs from the victim. See State v. Michael Rimmer, No. W2017-00504-CCA-R3-DD,

2019 WL 2208471, at *4 (Tenn. Crim. App., at Jackson, May 21, 2019) (evidence

establishing that $600 and several sets of bed sheets missing from the crime scene, a motel

office, was sufficient to support the defendant’s convictions for felony murder and

aggravated robbery), aff’d, 623 S.W.3d 235 (Apr. 16, 2021), rehearing denied, (May 21,

2021). The State presented sufficient evidence from which a jury could conclude that the

Defendant committed the offenses of felony murder in counts one, two, five, and six and

especially aggravated robbery in count seven. The Defendant is not entitled to relief on

this issue.

The Defendant was charged with felony murder in the perpetration of an attempted

burglary in count three and felony murder in the perpetration of a burglary in count four.

The Defendant contends that the evidence as to those two counts was insufficient to show

that he or anyone that he was criminally responsible for entered the victim’s vehicle

without the victim’s consent. Viewed in a light most favorable to the State, the proof

established that the Defendant’s accomplice entered the victim’s van after the Defendant

- 32 -

shot the victim multiple times and took a white envelope. Although it appears that the

Defendant and his accomplice had consent to initially enter the victim’s van, a jury could

infer that the Defendant’s accomplice did not have consent to reenter the victim’s van to

take the envelope as the victim was dying after the Defendant shot him multiple times.

Accordingly, we conclude that there was sufficient evidence to support the jury's finding,

beyond a reasonable doubt, that the Defendant committed the offense of felony murder in

counts three and four. The Defendant is not entitled to relief as to this issue.

II. Conclusion

Based on the foregoing reasoning and authorities, we affirm the trial court’s judgments.

____________________________________

ROBERT W. WEDEMEYER, JUDGE

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