IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED APRIL 1997 SESSION March 27, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. No. 03C01-9610-CR-00379 ) Appellee, ) HAMILTON COUNTY ) VS. ) HON. STEPHEN M. BEVIL, JUDGE ) MICHAEL DEANGELO GREEN, ) (Murder First Degree, Criminal ) Attempt: Especially Aggravated Appellant. ) Robbery, Aggravated Robbery- 6 ) Counts, Aggravated Assault- 2 ) Counts, Theft- 2 Counts)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD T. LANDIS JOHN KNOX WALKUP Suite 327, Doctors Building Attorney General and Reporter 744 McCallie Avenue Chattanooga, TN 37408 MICHAEL J. FAHEY, II Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
GARY D. GERBITZ District Attorney General
DAVID DENNY Assistant District Attorney General Suite 300, Court Building Chattanooga, TN 37402
OPINION FILED:
AFFIRMED
CHRIS CRAFT, SPECIAL JUDGE
OPINION The defendant, Michael Deangelo Green, was tried by a Hamilton County jury
on twelve indictments, all consolidated for trial, which resulted from a crime spree
committed between July 6 and July 11, 1993. The indictment numbers, dates of
offense, resulting convictions and name of each victim are set out below:
Indictment # Date Offense Charged Victim
204819 7/6/93 Theft over $1,000 Melinda Davidson
204813 7/6/93 Aggravated Robbery Earl Guilmenot
204814 7/6/93 Aggravated Robbery Michelle Morgan
204816 7/6/93 Aggravated Robbery Ginger Brown
204817 7/6/93 Aggravated Robbery Kristi Wilson
204818 7/7/93 Aggravated Robbery Jason Peace
204820 7/7/93 Murder First Degree Jeffrey Wolfe
204812 7/7/93 Criminal Attempt, to wit: Jeffrey Wolfe Esp. Aggravated Robbery
200144 7/11/93 Theft over $500 Minnie Hewlett
200090 7/11/93 Aggravated Assault Lashanna Acklin
200091 7/11/93 Aggravated Assault Lorenzo Suttles
200089 7/11/93 Aggravated Robbery William Townsend
Proof at the trial showed that on July 6, 1993, appellant, along with four other
young men, stole Ms. Davidson’s car, then stopped a pedestrian, Mr. Guilmenot, and
forced him to disrobe, robbing him of his clothes at gunpoint. They then forced Ms.
Morgan’s car off the road into a ditch, and robbed her of her purse. Next they forced
Ms. Brown and Ms. Wilson off the road, taking money from Ms. Wilson and the car
from Ms. Brown, abandoning Ms. Davidson’s car. Shortly after midnight they pulled
in front of Mr. Peace’s car and robbed him at gunpoint of his wallet, some money and
a radio. Appellant next approached Mr. Wolfe and his wife, who were stopped at a red
light, put a gun to Mr. Wolfe’s head and demanded that they get out of the car. The
gun went off, killing Mr. Wolfe. Appellant and the other young men then fled. Three
days later, on July 11, 1993, appellant and some of the same young men stole another
car belonging to Ms. Hewlett, and in the process of driving it around, pointed guns at
2 two pedestrians, forcing Ms. Acklin to disrobe and beating Mr. Suttles unconscious.
They then forced Mr. Townsend off his porch and robbed him at gunpoint of $50 in
cash and $200 in food stamps. The police soon pulled in behind them, and
apprehended them after a chase. Appellant was the leader, always displayed a
firearm, and was the driver of all the cars used in the crimes.
Appellant appeals as of right from those verdicts and presents four issues for
our review:
(1) whether it is constitutionally permissible to try appellant in state court following his federal court trial on the same facts,
(2) whether the trial court erred in denying a change of venue due to extensive pretrial publicity,
(3) whether the trial court erred in failing to strike the testimony of a witness, or in the alternative, to grant a mistrial, when the State failed to turn over a prior statement of that witness upon request, after his testimony, and
(4) whether the trial court erred in failing to grant appellant’s motion for judgment of acquittal as to three of the indictments.
APPELLANT’S FEDERAL TRIAL
Appellant was first tried in the United States District Court for the Eastern
District of Tennessee on a six count indictment charging him with conspiracy to commit
armed carjacking resulting in death, the basis for that indictment being the offenses
committed July 6-7, 1993, the subject of eight of the Hamilton County indictments.
Appellant was convicted in federal court, and was sentenced on September 12, 1994,
to life plus 25 years in the penitentiary for those offenses. He now complains that
retrying him for those same offenses in state court constitutes double jeopardy and
violates his right to due process.
The longstanding principle of dual sovereignty contemplates that a conviction
for the same identical offense by a court of another sovereign does not constitute
double jeopardy. Raybin, Tennessee Criminal Practice and Procedure, § 16.112
(1984 & Supp. 1997). The Tennessee Supreme Court, in Lavon v. State, 586 S.W.2d
112, 113-114 (Tenn. 1979), held that
[t]here is no question but that such a procedure does not subject the defendant to double jeopardy insofar as the guaranty of due process in the 14th amendment of the federal constitution is concerned. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). While the rationale of this case -- that the state and federal governments are distinct sovereignties, and thus the
3 punishment of a single act by each is not double jeopardy -- has been criticized, a similar approach has provided the basis for a more recent case, which would imply that Bartkus' analysis of the issue is still valid. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). This court is bound by the decisions of the United States Supreme Court concerning the proper interpretation of the federal constitution. Townsend v. Clover Bottom Hospital and School, 560 S.W.2d 623 (Tenn.1978). The double jeopardy provision of the Tennessee constitution, Article I, § 10, affords the defendant no greater protection. In the past, this provision has been interpreted to permit successive state and federal prosecutions on the basis of the same "dual sovereignties" analysis employed in Bartkus, supra, and, given the need for stability in constitutional interpretation, we see insufficient cause to depart from that precedent now.
See also Heath v. Alabama, 474 U.S. 82, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985).
Thus, in violating the laws of two sovereigns, appellant can be successively prosecuted
under the laws of both without subjecting him to double jeopardy. State v. Wyche, 914
S.W.2d 558, 561 (Tenn. Crim. App. 1995).
Furthermore, appellant was convicted in federal court of conspiracy to commit
carjacking while possessing a loaded firearm, which is a different offense from the
ones charged in the Hamilton County indictments. “On examination of the predicate
federal charges as contrasted with the State charges it is readily apparent that distinct
substantive offenses are laid by the federal indictment and the State [indictments.]
One factual base may be the foundation for multiple substantive offenses with distinct,
separate, and indispensable elements. Conspiracy charges are distinct from charges
of the consummated substantive offenses.” State v. Frank Mongione, No. 115 (Tenn.
Crim. App, Knoxville, January 31, 1991). Therefore, no due process or double
jeopardy problem arises from the subsequent state prosecution.
DENIAL OF CHANGE OF VENUE
Appellant filed a motion for change of venue due to the pretrial publicity given
the murder and the subsequent federal trial. At the hearing on the motion, appellant
requested that the trial judge reserve the motion for change of venue until the day of
trial, to see whether or not appellant could get an untainted jury. During the voir dire,
forty eight of the jurors, approximately half, indicated they had heard something about
the murder, and they were then individually voir dired by the trial judge and attorneys
concerning their knowledge of the case, and their ability to be fair. Only two jurors had
to be excused because they indicated that they had followed the case, were familiar
4 with the details, and had formed an opinion of appellant’s guilt. Two jurors were also
excused for other reasons, one because he knew the victims, and another because
he had been a witness in a trial concerning his neighbor’s murder. All the other jurors
examined indicated that they remembered no details other than that a man had been
killed during an attempted car theft, and all indicated that they could give appellant a
fair trial. None of the jurors examined had any knowledge of appellant’s federal trial
or conviction. The trial judge therefore found that appellant could get a fair jury without
a change of venue, and denied the motion. A jury of twelve, plus three alternates, was
selected and sworn, only seven peremptory challenges having been exercised by both
sides combined.
Appellant has not established that his jury was tainted by the pre-trial publicity.
Whether to change venue because the jury might not be impartial is a matter which
addresses itself to the sound discretion of the trial court; the appellate court will not
interfere with the exercise of discretion absent clear abuse. State v. Melson, 638
S.W.2d 342, 360 (Tenn. 1982), cert. denied, 459 U.S. 1137, 74 L. Ed. 2d 983, 103 S.
Ct. 770 (1983). Generally, the accused must demonstrate that the jurors who heard
the case were biased or prejudiced because of pre-trial publicity. A long list of factors
to consider in deciding whether venue should be changed is contained in State v.
Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979). Prejudice will not be
presumed on the mere showing that there was considerable pre-trial publicity.
Extensive knowledge in the community of the crimes of the alleged offender is not
sufficient by itself to render a trial constitutionally unfair. State v. Stapleton, 638
S.W.2d 850, 856 (Tenn. Crim. App. 1982), citing Dobbert v. Florida, 432 U.S. 282,
303, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977); see also State v. Kyger, 787 S.W.2d 13,
19 (Tenn. Crim. App. 1989). Here, the petitioner failed to demonstrate the kind of bias
or prejudice that would have precluded a fair trial.
INTERVIEW SUMMARY OF THADDEUS DANIEL
The first witness called by the state was Thaddeus Daniel, one of the juveniles
who accompanied appellant during the series of crimes for which he was on trial.
5 Daniel indicated during his testimony that he had also “told what happened” when he
was in juvenile court, prior to being offered a 20 year settlement. At the conclusion of
direct examination, but prior to cross-examination, appellant’s attorney informed the
trial judge in front of the jury that he needed time to review the witness’s “rather lengthy
previous statement.” The state then informed the trial judge, also in front of the jury,
that the defense had possessed the statement for some time. After both attorneys
were asked to approach the bench, the state accused appellant’s attorney of
“theatrics.” Appellant’s attorney then admitted that he had already possessed a copy
of Daniel’s prior testimony from the federal trial, but that he had never been given any
statements from juvenile court. The state responded that there were no juvenile court
statements. Because of the confusion of whether or not the witness had made
statements during a juvenile court proceeding, or had just made statements during the
time his case was still being handled in juvenile court, the witness was recalled to clear
the matter up and testified that he meant that he had told “the federal people” what had
happened, before agreeing to his offer of settlement. The following exchange then
took place between the court and appellant’s attorney, prior to cross-examination:
THE COURT: .... All right, is there anything else that needs to be taken up with reference to the statement issue? Does that clarify it, Mr. Landis? MR. LANDIS: Yes, it does, Judge. THE COURT: Okay. MR. LANDIS: That’s the first I’d heard of anything in juvenile court.
Appellant did not make a request for any statements given by this witness to “the
federal people,” at this time, but instead proceeded with the cross-examination of the
witness.
One of the last witnesses called by the state in its proof was Wayne Jackson,
an FBI agent, who testified on cross-examination that he interviewed Daniel in
February 1994, and later reduced that interview to a “summarization,” called an “FD-
302.” He was asked repeated questions by appellant about what Daniel told him in
this interview, and repeatedly suggested to appellant’s attorney that he be allowed to
review the summarization to aid his testimony. Appellant’s attorney finally agreed, and
the state passed the document to the witness, who proceeded to testify from it.
Although appellant’s attorney thanked the state for passing the document to the
6 witness, and so obviously knew of its existence, he never asked to be allowed to see
it, and never objected to its being given to agent Jackson. At no time did the defense
appear to be surprised by the existence of the “FD-302" of Thaddeus Daniel.
At the end of the state’s proof, appellant moved for a mistrial on the basis that
the state had failed to produce this document after Daniel’s testimony, pursuant to
Rule 26.2 of theTennessee Rules of Criminal Procedure, also known as the
“Tennessee Jencks Act.” Section (a) of that rule provides:
Motion for Production. - After a witness other than the defendant has testified on direct examination, the trial court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
Section (e) of that same rule provides for sanctions for noncompliance, as
follows:
Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice. (emphasis supplied)
Appellant, in a prior motion hearing, had already been granted production of all
Jencks material by the trial court. It is the contention of appellant that the “FD-302"
written by Agent Jackson was a prior statement of the witness, and therefore its
nonproduction should have resulted in a mistrial, in that Daniel was a crucial witness
for the state and the statement reveals that Daniel was granted federal immunity for
his federal grand jury testimony. The trial court, after a hearing, ruled that the “FD-
302" was a statement that should have been provided to the defense under Rule 26.2,
but also noted that there was some confusion as to this issue since the federal
authorities apparently did not consider it a statement for their trial purposes. The court
then found that there was no wrongdoing on the part of the state, or any intent to keep
the statement from the defense, but that it was “more of a matter of misunderstanding
and confusion,” and declined to impose sanctions. The trial judge did, however,
reopen the state’s proof in the interest of fairness, recalled Daniel, and allowed
appellant to cross-examine him with the summarization of the agent’s interview of
7 Daniel.
As seen from the trial record, although appellant knew of the existence of this
document, and allowed it to be passed to a witness during testimony, he never asked
the trial court to order its production for examination. This Court also respectfully
disagrees with the trial court’s finding that the summarization in question was a
“statement” as defined by Rule 26.2. Section (g) of that rule states:
Definition. As used in this rule, a "statement" of a witness means:
(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness; or
(2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof. (emphasis supplied)
The document at issue was a summarization written by an FBI agent after
interviewing Daniel, which was later transcribed as a record of his interview with this
witness. It was not a “substantially verbatim recital” of the interview, nor was it
“recorded contemporaneously.” Even actual notes an investigator made while
interviewing a witness do not qualify under the definition of a "substantially verbatim
recital" of a witness's oral statement under Rule 26.2 (g). State v. Payton, 782 S.W.2d
490, 494-95 (Tenn. Crim. App. 1989). This statement was only a summary, and was
the statement of an FBI agent, not Thaddeus Daniel.
There is also no evidence in the record that Daniel ever adopted, approved, or
even knew of the summary’s existence. Rule 26.2 was formerly contained in Rule
16(E). Prior to its separation from our Discovery Rule and its renumbering, there was
a great deal of confusion among the bench and bar as to what was discoverable
pretrial, and what was “Jencks material,” and therefore only discoverable after direct
testimony of a witness. In State v. Robinson, 618 S.W.2d 754, 759 (Tenn. Crim. App.
1981), this Court attempted to resolve the confusion, and held that under then Rule
16(E) a summary of a witness's pre-trial statement would not be subject to inspection
under the "Jencks Act" unless it were signed, adopted or approved by the witness.
Although the state might in some situations be under a duty to turn a statement of this
type over to the defense, due to its exculpatory nature, for instance, or for other
8 legitimate reasons, the state was under no obligation here to furnish a copy of this
summary to the defense as “Jencks material” under Rule 26.2.
Even if we held the “FD-302" of Daniel’s interview to be a prior statement under
the rule, the action of the trial judge in recalling the witness for additional cross-
examination prior to the beginning of defense proof insured that a mistrial would not
be “required by the interest of justice” pursuant to Rule 26.2 (e), as there was no
prejudice to appellant.
MOTION FOR JUDGMENT OF ACQUITTAL
Appellant alleges that the trial judge should have granted his motion for
judgment of acquittal as to two indictments due to insufficiency of the evidence: the
Aggravated Assault upon Lorenzo Suttles, and the Aggravated Robbery of Kristi
Wilson. Appellant further claims that the conviction for Criminal Attempt, to wit:
Especially Aggravated Robbery should not stand in light of his conviction for Felony
Murder on the same facts.
The indictment charging the Aggravated Assault alleges that appellant caused
“Lorenzo Suttles to reasonably fear imminent bodily injury by use of a deadly weapon.”
Although Mr. Suttles did not testify, his companion Lashanna Acklin did testify that
while walking with Mr. Suttles, five young men exited a car, forced her to completely
disrobe at gunpoint and forced Mr. Suttles to remove his clothes, beating him
unconscious. She identified a photo of the car in which appellant was arrested shortly
after the assault as being the car the young men were driving. Two of those young
men, Thaddeus Daniel and Jermichael Young, identified appellant as the driver during
the assault, and testified that he had a gun, and was their leader. They stated that he
got out with them and stood in front of the station wagon with a ski mask on, holding
a .380 handgun, while the assaults took place.
The indictment charging Aggravated Robbery alleges that appellant
...did unlawfully, intentionally, knowingly, violently, by use of a deadly weapon or by the display of any article used or fashioned to lead Kristi Wilson to reasonably believe it to be a deadly weapon, and putting Kristi Wilson in fear, take from her person money....
Although Ms. Wilson didn’t testify, her companion and driver, Ginger Brown, stated that
a car full of young men ran them off the road, and one of them made Kristi Wilson give
9 him twenty dollars at gunpoint. They both were forced to sit on the ground while Ms.
Brown’s car was stolen, and Ms. Davidson’s previously stolen car was abandoned at
the scene. Thaddeus Daniel testified that appellant was the leader, was one of the two
men who got out of the car during the robbery, and was the driver of both cars.
Both of these incidents fit in with other witness testimony involving appellant in
other crimes near in time, with the same criminal actors in the same cars, with
appellant being the leader and driver.
In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor
may this court substitute its inferences for those drawn by the trier of fact from
circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859
(Tenn. 1956). This court is required to afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Herrod, 754
S.W.2d 627, 632 (Tenn. Crim. App. 1988). Questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas,
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). A guilty verdict by the jury, approved
by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts in favor of the theory of the State. State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1973).
Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt
due to the sufficiency of the evidence unless the facts contained in the record and the
inferences which may be drawn from the facts are insufficient, as a matter of law, for
a rational trier of fact to find the accused guilty beyond a reasonable doubt. State v.
Matthews, 805 S.W.2d 776, 780 (Tenn. Crim. App. 1990). We find the facts shown
in the record sufficient to sustain these two convictions. Even though appellant was
10 not identified as being directly responsible for these two particular crimes, there was
sufficient proof for the jury to find that he was “criminally responsible for an offense
committed by the conduct of another” pursuant to T.C.A. § 39-11-402.
Appellant also alleges in his brief that the jury “acquitted the defendant of the
count charging premeditated murder and convicted of felony murder. Consequently
the conviction for attempted especially aggravated robbery cannot stand.” We initially
note that appellant has cited no legal authority in support of his argument, which
results in a waiver. Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure.
Appellant also fails to state any legal grounds for this contention. In State v.
Blackburn, 694 S.W.2d 934 (Tenn. 1985), our Supreme Court held that the imposition
in a single trial of dual convictions for both felony murder and the underlying felony
does not violate constitutional prohibitions against double jeopardy, as the two statutes
are directed to “separate evils.” Id. at 936-37. See also State v. Barber, 753 S.W.2d
659, 671; State v. Zirkle, 910 S.W.2d 874, 890 (Tenn. Crim. App. 1995). This issue is
without merit.
Having found no reversible error in the court below, the judgment of the trial
court is therefore AFFIRMED.
CONCUR:
JERRY L. SMITH, JUDGE
JOE RILEY, JUDGE