IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 3, 2010 Session
STATE OF TENNESSEE v. JEREMY GARRETT
Direct Appeal from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 04-07755, 04-05871 W. Otis Higgs, Judge
_________________________________
No. W2007-02700-SC-R11-CD - Filed January 24, 2011
The defendant was indicted separately for two different criminal episodes, one involving an
aggravated robbery and the other involving a homicide and an especially aggravated robbery.
On the State’s motion but over the defendant’s objection, and without conducting an
evidentiary hearing, the trial court consolidated the indictments for a single trial. The jury
convicted the defendant of all offenses charged, and the Court of Criminal Appeals affirmed.
On appeal, the defendant contends that the trial court committed reversible error in
consolidating the offenses. We hold that the trial court erred both as to methodology and as
to result in consolidating the indictments. When a defendant objects to the State’s pretrial
motion to consolidate offenses, the trial court must conduct a hearing and consider the
motion under the severance provisions of Tennessee Rule of Criminal Procedure 14(b)(1),
not the provisions of Rule 8(b). We also hold that a prosecutor should refrain from seeking
the consolidation of offenses over a defendant’s objection unless the prosecutor has a good
faith basis for arguing that the requirements of Rule 14(b)(1) will be met. The trial court’s
error in ordering consolidation requires that we reverse the defendant’s conviction of
aggravated robbery and remand for a new trial on that charge. The trial court’s error was
harmless as to the defendant’s convictions for first degree felony murder and especially
aggravated robbery, and we affirm those convictions.
Tenn. R. App. P. 11; Judgment of the
Court of Criminal Appeals Affirmed in Part,
Reversed in Part; Remanded
C ORNELIA A. C LARK, C. J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
James E. Thomas (on appeal), Memphis, Tennessee, and Tyrone Paylor and Robin Steward
(at trial), Memphis, Tennessee, for the appellant, Jeremy Garrett.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Asst. Attorney General;
William L. Gibbons, District Attorney General; James Wax and Paul Hagerman, Asst.
District Attorneys General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
During its July 2004 term, the Shelby County grand jury indicted the appellant,
Jeremy Garrett (“Defendant”), for the aggravated robbery of Mexwayne Williams committed
on March 28, 2004. During its September 2004 term, the Shelby County grand jury indicted
Defendant for the first degree felony murder and the especially aggravated robbery of Dexter
Birge committed on March 29, 2004. On January 9, 2006, the State filed a motion to
consolidate the indictments “on the grounds that the offenses charged constitute parts of a
common scheme or plan and/or the offenses charged are of the same or similar character.”
On November 15, 2006, Defendant filed a response to the State’s motion, objecting that
consolidation was not proper. Without holding an evidentiary hearing, the trial court entered
an order on January 24, 2007, granting the State’s motion on the basis that “the offenses
charged in the captioned indictments constitute parts of a common scheme or plan and/or the
offenses charged are of the same or similar character.” Trial before a jury was held
beginning August 6, 2007, on all three offenses charged.1 We summarize the proof of each
case by victim and in chronological order.
Aggravated Robbery of Mexwayne Williams
Mexwayne Williams testified that, on the afternoon of March 28, 2004, he drove to
a tobacco store in Shelby County to purchase some cigarettes. The cashier requested
identification, so he returned to his car to retrieve it. As he approached his car, two men
accosted him. One of the men put a gun to his chest and told him to sit on the ground. The
other man took his car keys. The man with the gun got in the driver’s side of Williams’s car
while the other man got in the passenger side. The two men then drove off in Williams’s car.
Williams returned to the store and called the police to report a carjacking. In
conjunction with the ensuing investigation, he viewed two photographic arrays of six
individuals each and identified both of his attackers, one from each array. On direct
examination, Williams stated that he was “pretty sure about one of them,” but was unable to
identify Defendant in the courtroom as one of his attackers. He explained that he had never
seen the men before the carjacking and that he had been frightened during the event.
1
Although Defendant was indicted with one codefendant on the March 28, 2004 offense and with
two codefendants on the March 29, 2004 offenses, he was tried individually.
2
On questioning, Williams described the man who had held the gun on him as “about
six feet, between the ages of like eighteen and twenty-five, dark skinned.” The man was
wearing dark clothes and had a “gray skull cap” on his head. Williams described the other
man as “bright skinned,” about five feet nine or ten inches tall, about the same age, and
wearing a white hoodie. He was certain about his identification of the dark-skinned man but
less certain about his identification of the other man, and he stated that he had focused more
on the dark-skinned individual during the incident.
Williams recovered his car several days later. The wheels, tires, and dashboard CD
player were missing. He identified photographs of his car and described it as a 1997 or 1998
Grand Marquis. The photos in the record reveal that the car is black in color.
Codefendant Tommy Turley testified and identified Defendant as the subject of the
photograph that Williams had selected from the first photo array.2 He identified himself as
the subject of the photograph that Williams had selected from the second photo array. Turley
also identified the photographs of the vehicle taken from Williams, which were previously
admitted into evidence. Turley further testified that, on March 28, 2004, he and Kelly
Richardson were riding with Defendant in Defendant’s car when he saw Williams’s car pull
up to the tobacco store. He noticed the wheel rims on the car, and he told Defendant to pull
over. Defendant did so and, when Williams came out of the store, Turley approached him,
held his gun to Williams, and told Williams to give him the car keys. Williams gave Turley
the keys and Turley gave the keys to Richardson. Richardson got in the driver’s seat of
Williams’s car and Turley got in the passenger seat. Richardson drove the car to Defendant’s
uncle’s house by following Defendant, who continued to drive his own car. When asked
what Defendant did during the confrontation with Williams, Turley said “[n]othing.” He also
testified, however, that Defendant was “aware” and “knew” that Turley was going to rob
Williams.
Turley testified that, once they arrived at Defendant’s uncle’s house, Turley removed
the rims from Williams’s car. He put the rims in Defendant’s car and the three men
(including Richardson) went to East Memphis where Turley sold the rims for cash. The three
men split the proceeds.
On cross-examination, Turley reiterated that he “robbed” Williams. He also identified
his gun as a “BB gun.”
Also admitted into evidence were Turley’s two statements to the police, obtained on
April 1 and 3, 2004. As to the robbery of Williams, Turley told the police that he had
2
This is the suspect that Williams described as “bright skinned.” Williams was less certain about
his identification of this suspect.
3
accosted Williams with a gun and demanded his car keys. Turley said that the gun was a BB
gun but looked “like a real gun.” According to Turley’s statement, after Turley got the keys,
Defendant got into Williams’s car and drove because Turley did not know how to drive. The
two men left behind the car in which they had arrived. Defendant drove Williams’s car to
Defendant’s uncle’s house, where they removed the wheel rims. Defendant’s uncle was not
home at the time. Defendant gave Turley $300 after selling the rims. Turley also told the
police that Defendant “ain’t got no gun.” Turley’s statement makes no mention of
Richardson’s involvement in the crime against Williams.
When questioned about the inconsistencies between his trial testimony and his earlier
statements,3 Turley maintained that he had been high on cocaine while making his
statements. He testified that he was telling the truth at trial, and he reiterated that Defendant
had remained in his car during the Williams robbery and that Turley had the gun during that
offense.
Jeremy Waller, Defendant’s uncle, testified that Defendant and two other men came
to his home on Sunday, March 28, 2004. Defendant and a man Waller did not know arrived
in one car. Another man, whom Waller referred to as “Twin,” arrived in a black car, pulling
in behind Waller as he returned from church.4 Waller stated that the men took the wheels off
of the black car to sell and left with the rims. The men did not return that day. Waller
identified a photograph of Williams’s car.
First Degree Felony Murder and
Especially Aggravated Robbery of Dexter Birge
Willie Johnson testified that he went to the Dollar General Store on Shelby Drive in
Memphis on March 29, 2004. When he opened the door to enter the store, another man
exited the store. This man went to his car, where he (the man who had just exited the store)
was grabbed by another man. The two men began wrestling, and Johnson saw something
drop, which he thought was a gun. Johnson told the store clerks about the fight, and they all
watched. The two fighting men were on the ground when a third man “came from the side
of the building, just walked up to the guy and shot him in the head.”
3
Generally, a jury’s consideration of extrinsic proof of a prior inconsistent statement is limited to
its impact on the witness’s credibility. See Tenn. R. Evid. 613(b); State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000); Neil P. Cohen et al., Tennessee Law of Evidence, § 613[2][b] (5th ed. 2005). However, “if no
objection is made to a prior inconsistent statement as substantive evidence, the evidence may be used by the
jury for that purpose.” Cohen, Tennessee Law of Evidence at § 613[2][b]; see also Smith, 24 S.W.3d at 280-
81. In this case, the defense did not object to the admission of Turley’s two statements to the police.
4
At the top of Turley’s April 1 statement is printed the explanation that Turley “also goes by the
name Twin.”
4
Johnson stated that he and the other people in the store who were watching ran to the
back of the store. A few minutes later, the man who had been shot entered. Someone called
911. Johnson had never seen either the victim or his two attackers before and was unable to
identify the man who shot the victim.5
On cross-examination, Johnson acknowledged that he did not actually see the gun
with which the victim was shot and assumed that the third person was the one who shot it.
He heard only one gunshot. On redirect, Johnson explained that the victim was on the
ground fighting with the second individual when the third man came up and, while standing,
pointed his arm at the victim.
Robert E. Birge testified that he was the deceased victim’s father. He identified a
photograph of the Yukon SUV that his son was driving on the day he was killed.
Detective Jeff McCall of the Shelby County Sheriff’s Office responded to the shooting
call at the Dollar General Store. He found the victim lying on the floor in the store; an
ambulance was on the way. Detective McCall described the time of day as dusk.
Turley, also a codefendant on the charges involving Dexter Birge, testified that, on
March 29, 2004, he and Defendant were riding around with Corey Richmond, who was
driving. They were looking for more rims. They saw Birge’s vehicle and followed it to a
store. While Birge was in the store, Turley and Defendant got out of Richmond’s car, and
Richmond left. When Birge came out of the store, Turley approached him, pulled his gun,
and told Birge “this is a stickup let me get them keys.” Turley testified about what happened
next:
[Birge] swung or something. He started tussling and fighting. He fell
to the ground. I picked the keys up and ran to the passenger side and threw
[Defendant] the keys. I heard a shot. And I went back around there. He [the
victim] was running back in the store. We panicked and jumped in the truck
and left.
Turley testified that he hit Birge with his gun during their altercation. He also testified that
he got in the passenger side of Birge’s truck because he did not know how to drive. Turley
identified photographs of the vehicle taken from Birge.
Turley testified that Defendant had a gun but he did not remember what kind.
Defendant drove Birge’s vehicle to Waller’s house. On the way, Turley threw his gun out
5
The victim subsequently died.
5
the window. Turley did not know what Defendant did with his gun. When they arrived at
Waller’s house, Richmond was already there.
At Waller’s house, Turley removed one of the wheel rims from Birge’s vehicle. He
put the rim in Richmond’s car and Richmond drove Turley and Defendant to East Memphis
to try and find a buyer for the rims.
Waller testified that he again saw Defendant at his house on March 29, 2004.
Defendant was with “Twin” and another man named Corey. They were in a vehicle Waller
had not seen before; he did not know who drove it there. Waller “didn’t feel right” about
what was going on and told the men to get both the black car and the new vehicle “away
from there.” When Waller checked back, there was a wheel missing from the new vehicle
and the men were gone.
The police arrived later that day and questioned Waller about the two vehicles. Waller
“told them what [he] knew.” He told the police he did not know who had been driving them,
that they were not his, and he had not seen them before they came to be there.
Dr. Karen Chancellor, the chief medical examiner for Shelby County, testified that
she did not perform the autopsy on Dexter Birge but had reviewed the autopsy records. The
cause of Birge’s death was a gunshot wound to the chest. The bullet, recovered from Birge’s
body, first pierced Birge’s left arm and then entered his torso where it struck his left lung,
his heart, his liver, and his stomach. Dr. Chancellor estimated that the gun barrel was “a few
inches away from Mr. Birge’s body when it was fired.” Birge had also suffered some
abrasions and lacerations to his face, chest and back. The wounds to Birge’s face were
consistent with his being struck with a blunt object.
Sergeant Vernon Dollahite, Jr. of the Shelby County Sheriff’s Office testified that he
was involved in the investigation of Birge’s homicide and interviewed Defendant on April
4, 2004. The audiotape of that interview was played for the jury, and this Court has listened
to it. During his interview, Defendant stated that he and Twin were walking down the street
at around 4:00 or 5:00 in the afternoon. They saw Birge drive by, and Twin decided to rob
him. While Twin was hitting Birge with his pistol, Defendant ran over to back him up.
According to Defendant, Twin shot Birge; Defendant said that he never touched him.
Defendant stated that he went into a “state of shock.” Twin threw Birge’s car keys at him,
and Defendant got into the driver’s seat because Twin could not drive. Twin tried
unsuccessfully to get into the passenger side, and then ran around and climbed in over
Defendant. Defendant drove them to Waller’s house. A short time after they arrived there,
Corey Richmond and Waller pulled up in separate cars at about the same time. Waller told
the men to get their “hot s**t off [his] land.” Defendant gave one of the rims from Birge’s
SUV to Defendant’s cousin.
6
Defendant stated that he knew Twin had a gun and described it as a .22 or .25; he did
not know what Twin had done with the pistol after the shooting. Defendant also admitted
that he had had a .380 gun in case of “emergency,” but said that he “got rid of it” after Twin
shot Birge. Defendant also stated that he burned the clothes he had been wearing during the
offense.
Corey Richmond, also charged with the crimes against Dexter Birge, testified that, on
March 29, 2004, he, Turley, and Defendant were driving around together. Richmond was
driving, Defendant was in the front passenger seat, and Turley was in the backseat. Turley
asked Defendant if Richmond would “help him.” Richmond asked Defendant
what was he talking about. And [Defendant] told me that they was fixing to
get some money. They was going to get some rims. And — and I told them
that I wasn’t really – I really didn’t get down like that but that I would drop
them off when they saw whoever they needed to see.
As Richmond was about to stop and get some gas, Turley told him to follow an SUV “with
large rims on it” that Turley had seen. Richmond followed the SUV to the Dollar General
Store. Richmond said that the SUV parked in the front and he parked “on the side.” As he
parked, he got a phone call. While he was conversing on the phone, Defendant and Turley
got out of the car. After a minute or two, Richmond heard a gunshot and ended his phone
call. He saw several vehicles leaving the parking lot, including the SUV. In the SUV were
Defendant and Turley. Richmond also left and went to the gas station. He later met
Defendant and Turley at Waller’s house, where he saw the SUV. Defendant and Turley
removed one of the rims from the SUV and put it in Richmond’s car. The three men then
left.
Richmond testified that he did not see the shooting. He later heard Defendant and
Turley discussing it, however, and testified that Turley “asked [Defendant] why did he shoot
him. And [Defendant] told him, well, he was whupping you. I had to help you out. I had
to get him up off you.”
On cross-examination, Richmond admitted to having previously given a statement to
the police that was “completely different” from his trial testimony. In his earlier statement,
he claimed to have been elsewhere with his girlfriend at the time of the crime. He testified
that he told the police a story because they refused to let him speak with his lawyer. He
acknowledged that his fingerprints were in the SUV because he had opened the door and
looked at some CDs that he found inside. He also stated that he had tried to wipe his
fingerprints off because he realized “once I dropped them off at the Dollar Store that I
shouldn’t have had any part of it.”
7
Richmond stated that he was hoping for “some leniency” in exchange for his
testimony.
The State rested after Richmond’s testimony. The defense proffered no proof. The
jury convicted Defendant of all offenses charged.6 In his motion for new trial, Defendant
alleged that the trial court “erred by Granting the State’s Motion to Consolidate the
Indictments without conducting an evidentiary hearing as requested by the Defendant
pursuant to the Rules of Criminal Procedure” and that the trial court “erred by Granting the
State’s Motion to Consolidate the Indictments without providing specific written or oral
findings to support the Court’s decision to grant the State’s motion as requested by the
Defendant pursuant to the Rules of Criminal Procedure and established case law.” At the
hearing on Defendant’s motion for new trial, the trial judge acknowledged that “we didn’t
grant an evidentiary hearing” but stated that he had asked the prosecutor “to give [the trial
court] a statement about these matters, the facts, and otherwise as to why [the State was]
consolidating these cases.” The court stated that it “was satisfied with what . . . the record
reflects, relative to the consolidation.” As to Defendant’s assertion that the trial court erred
by not making specific findings in support of its grant of the State’s motion to consolidate,
the trial court stated simply that it “thought the State’s intentions and, in addition, the State’s
statement was adequate for the Court to grant the consolidation.” However, the record on
appeal contains no “statements” by the prosecution concerning its motion to consolidate other
than the assertions in the written motion.
On appeal, the Court of Criminal Appeals held that the trial court erred in
consolidating the indictments, but determined that the error was harmless. The intermediate
appellate court therefore affirmed Defendant’s convictions.
STANDARD OF REVIEW
This Court reviews a trial court’s decision to consolidate offenses for abuse of
discretion. Spicer v. State, 12 S.W.3d 438, 442 (Tenn. 2000). A trial court abuses its
discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases its
ruling on a clearly erroneous assessment of the proof, or applies reasoning that causes an
injustice to the complaining party. State v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010). This
Court will also find an abuse of discretion when the trial court has failed to consider the
relevant factors provided by higher courts as guidance for determining an issue. State v.
Lewis, 235 S.W.3d 136, 141 (Tenn. 2007).
6
The trial court subsequently sentenced Defendant to eight years of incarceration for the aggravated
robbery; fifteen years of incarceration for the especially aggravated robbery; and life imprisonment for the
murder, all to run concurrently. Defendant has not appealed his sentences.
8
ANALYSIS
Consolidation of Offenses
Tennessee Rule of Criminal Procedure 13(a) provides that a trial court “may order
consolidation for trial of two or more indictments, presentments, or informations if the
offenses and all defendants could have been joined in a single indictment, presentment, or
information pursuant to Rule 8.” Tenn. R. Crim. P. 13(a). Tennessee Rule of Criminal
Procedure 8, in turn, provides that offenses may be consolidated “if: (1) the offenses
constitute parts of a common scheme or plan; or (2) they are of the same or similar
character.” Tenn. R. Crim. P. 8(b). However, a defendant may obtain as of right the
severance of offenses that have been consolidated “unless the offenses are part of a common
scheme or plan and the evidence of one would be admissible in the trial of the others.” Tenn.
R. Crim. P. 14(b)(1) (emphasis added).
This Court has considered the interplay of Rules 8, 13, and 14 numerous times in
recent years. See, e.g., State v. Dotson, 254 S.W.3d 378, 386-90 (Tenn. 2008); State v.
Denton, 149 S.W.3d 1, 12-15 (Tenn. 2004); State v. Goodwin, 143 S.W.3d 771, 779-81
(Tenn. 2004); State v. Toliver, 117 S.W.3d 216, 226-30 (Tenn. 2003); Spicer, 12 S.W.3d at
443-47; State v. Moore, 6 S.W.3d 235, 238-42 (Tenn. 1999) (analyzing defendant’s motion
to sever one count from a multiple-count indictment); State v. Shirley, 6 S.W.3d 243, 247-50
(Tenn. 1999). Notwithstanding these frequent discussions and repeated instructions, some
trial courts and prosecutors continue to struggle with the proper application of these rules in
various factual contexts. We therefore take this opportunity to emphasize, once again, the
proper procedure.
Where the State initially seeks to consolidate separate indictments, it must establish
only one thing: that the offenses are either (1) “parts of a common scheme or plan,” or (2)
that the offenses are “of the same or similar character.” Tenn. R. Crim. P. 8(b). See also
Spicer, 12 S.W.3d at 443. If the defendant objects to the consolidation of offenses that
would otherwise be permissible under Rule 8(b), however, the offenses may not be tried
together unless two criteria are met: (1) “the offenses are parts of a common scheme or plan
and” (2) “the evidence of one would be admissible in the trial of the others.” Tenn. R. Crim.
P. 14(b)(1) (emphasis added). See also Denton, 149 S.W.3d at 12-13. “Consequently, when
a defendant objects to a pre-trial consolidation motion by the [S]tate, the trial court must
consider the motion by the severance provisions of Rule 14(b)(1), not the . . . [provisions]
of Rule 8(b).” Spicer, 12 S.W.3d at 443. Therefore, where a defendant seeks to prevent the
consolidation of offenses,
the “primary issue” to be considered . . . is whether evidence of one offense
would be admissible in the trial of the other[s] if the . . . offenses remained
9
severed. See State v. Burchfield, 664 S.W.2d 284, 286 (Tenn. 1984). In its
most basic sense, therefore, any question as to whether offenses should be tried
separately pursuant to Rule 14(b)(1) is “really a question of evidentiary
relevance.” State v. Moore, 6 S.W.3d 235, 239 (Tenn. 1999); see also Shirley,
6 S.W.3d at 248.
Spicer, 12 S.W.3d at 445.
As we have pointed out previously, Tennessee Rule of Evidence 404(b) is called into
play when a trial court must decide whether proof of a defendant’s alleged misconduct on
one occasion may be admitted in conjunction with proving his alleged misconduct on a
separate occasion. See Dotson, 254 S.W.3d at 387. Rule of Evidence 404(b) provides
categorically that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the character trait.” Tenn.
R. Evid. 404(b).7 And, we have recognized that the rationale behind this general rule of
inadmissibility is that the
admission of other wrongs carries with it the inherent risk of the jury
convicting a defendant of a crime based upon his or her bad character or
propensity to commit a crime, rather than the strength of the proof of guilt on
the specific charge. When the defendant’s [other] bad acts are similar to the
crime for which the defendant is on trial, the risk of unfair prejudice is even
higher.
Dotson, 254 S.W.3d 387; see also State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994)
(recognizing that proof of similar crimes “easily results in a jury improperly convicting a
defendant for his or her bad character or apparent propensity or disposition to commit a crime
regardless of the strength of the evidence concerning the offense on trial”). Accordingly, any
doubt about the propriety of the consolidation of similar offenses over a defendant’s
objection should be resolved in favor of the defendant.
If the State seeks the consolidation of offenses under Rule 13(a) and the defendant
objects, “the prosecution bears the burden of producing evidence to establish that
consolidation is proper.” Toliver, 117 S.W.3d at 228 (citing Spicer, 12 S.W.3d at 447). And,
the trial court must hold a hearing in order to gather the information necessary to adjudicate
the issue:
7
Evidence of other bad acts may be admissible, however, to prove, e.g., identity or intent, or to rebut
accident or mistake. Tenn. R. Evid. 404 advisory comm’n cmts.
10
Before consolidation is proper, the trial court must conclude from the evidence
and arguments presented at the hearing that: (1) the multiple offenses
constitute parts of a common scheme or plan, Tenn. R. Crim. P. 14(b)(1); (2)
evidence of [one] offense is relevant to some material issue in the trial of all
the other offenses, Tenn. R. Evid. 404(b)(2); Moore, 6 S.W.3d at 239; and (3)
the probative value of the evidence of other offenses is not outweighed by the
prejudicial effect that admission of the evidence would have on the defendant,
Tenn. R. Evid. 404(b)(3).
Spicer, 12 S.W.3d at 445 (as clarified by Dotson, 254 S.W.3d at 386 n.5). See also Dotson,
254 S.W.3d at 387 (recognizing that the procedure a trial court must follow upon a
defendant’s request that offenses be severed is “well established” and includes the
requirement of an evidentiary hearing). Given the analysis that a trial court must undertake
in order to determine whether separate offenses may be consolidated for trial over the
defendant’s objection, the necessity of a hearing is obvious. Moreover, by holding a hearing
and issuing findings of fact and conclusions of law, a trial court ensures that, on review, the
appellate courts will have an adequate record from which to determine whether the trial court
erred upon an allegation that it improperly consolidated offenses. See Spicer, 12 S.W.3d at
445. Accordingly, we emphasize both the need for a hearing and the equally important
requirement that the trial court support its ensuing ruling with findings of fact and
conclusions of law. See id.
The trial court is not alone in its obligation to analyze properly a dispute over the
consolidation of offenses. The State has an independent obligation to determine the propriety
of requesting consolidation before asking the trial court to do so. Certainly, the State may
seek consolidation as a means of conserving resources and maximizing judicial efficiency;
moreover, the State may determine that the defendant will accede to consolidation. However,
if the State has reason to believe that the defendant will object to the consolidation of
offenses, then it becomes incumbent upon the prosecution to analyze carefully the strength
of its position and not to proceed unless it has reasonable grounds for doing so.8 If the State
persists in seeking consolidation, it should request a hearing on the matter in the event the
trial court fails to set one.
8
While we neither hold nor imply that the prosecutors in this case violated any of their ethical
obligations, we point out that, under the amended Tennessee Rules of Professional Conduct effective January
1, 2011, prosecutors “shall not knowingly . . . make a false statement of fact or law to a tribunal” or “fail to
disclose to the tribunal legal authority in the controlling jurisdiction known to the [prosecutor] to be directly
adverse to the position of the client and not disclosed by opposing counsel”; shall not “knowingly disobey
an obligation under the rules of a tribunal”; and are subject to discipline for “engag[ing] in conduct involving
dishonesty, fraud, deceit, or misrepresentation[.]” Tenn. Sup. Ct. R. 8, RPC 3.3(a)(1) & (2); 3.4(c); and
8.4(c).
11
In this case, the trial court failed to hold a hearing on the State’s motion to consolidate
offenses although Defendant objected to the State’s motion and requested that it be denied.
The trial court further failed to issue findings of fact and conclusions of law in support of its
ruling in the State’s favor. Finally, the grounds upon which the trial court granted
consolidation are legally insufficient. As set forth above, the trial court’s order consolidated
the offenses on the basis that they “constitute parts of a common scheme or plan and/or the
offenses charged are of the same or similar character.” While these grounds are sufficient
where the defendant does not resist consolidation, they are wholly inadequate where the
defendant does. We repeat: “when a defendant objects to a pre-trial consolidation motion
by the state, the trial court must consider the motion by the severance provisions of Rule
14(b)(1), not the . . . [provisions] of Rule 8(b).” Spicer, 12 S.W.3d at 443 (emphases added).
In this case, the trial court erred in its failure to utilize the proper procedure and analysis.
This is not to say that the offenses could not have been consolidated, however. In
order to make that determination, we must conduct the analysis that the trial court failed to
conduct. Moreover, because the trial court did not hold the required hearing, we must
conduct this analysis on the basis of the evidence adduced at Defendant’s trial instead of only
the evidence adduced at the hearing. See Toliver, 117 S.W.3d at 228 n.4; State v. Prentice,
113 S.W.3d 326, 331-32 (Tenn. Crim. App. 2001) (where record contained neither trial
court’s order consolidating offenses nor transcript of any hearing, appellate court will review
evidence adduced at trial); cf. Spicer, 12 S.W.3d at 445 (providing that, “because the trial
court’s decision of whether to consolidate offenses is determined from the evidence
presented at the hearing, appellate courts should usually only look to that evidence, along
with the trial court’s findings of fact and conclusions of law, to determine whether the trial
court abused its discretion by improperly joining the offenses”).
As set forth above, consolidation of Defendant’s offenses was proper only if three
prerequisites were satisfied: (1) the offenses were all parts of a common scheme or plan; (2)
evidence of one offense would be admissible as to some material issue in the trial of the other
offenses; and (3) the probative value of the proof of the other offense is not outweighed by
its prejudicial effect on the defendant. Thus, we first consider whether the offense
committed against Mexwayne Williams and the offenses committed against Dexter Birge
were all “parts of a common scheme or plan.”
This Court has observed that “there are three types of common scheme or plan
evidence: (1) offenses that reveal a distinctive design or are so similar as to constitute
‘signature’ crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and
(3) offenses that are all part of the same criminal transaction.” Shirley, 6 S.W.3d at 248
(citing Neil P. Cohen et al., Tennessee Law of Evidence § 404.11, at 180 (3d ed. 1995)). As
to “signature” crimes, we have described such offenses as involving a modus operandi so
unique and distinctive, and involving “such unusual particularities,” that reasonable persons
12
would conclude that the means of committing the crimes “would not likely be employed by
different persons.” Moore, 6 S.W.3d at 240 (quoting Harris v. State, 227 S.W.2d 8, 11
(Tenn. 1950)). In this case, the record does not support the conclusion that the offenses
involving Williams and Birge were “signature” crimes, nor does the State contend that it
does.
There is also no proof that the offenses involving Williams and Birge were part of a
larger plan or conspiracy, and, again, the State does not contend that they were. The record
is also clear, and the State does not argue otherwise, that the offenses were not part of the
same criminal transaction. In sum, the record fails to satisfy even the first prerequisite for
consolidation in the face of Defendant’s objection, and the State properly concedes that the
consolidation of Defendant’s offenses was error.
Effect of Error
We review a trial court’s erroneous consolidation of offenses for harmless error.
Spicer, 12 S.W.3d at 447. That is, we must determine whether the trial court’s error “more
probably than not affected the judgment.” Toliver, 117 S.W.3d at 231 (citing Tenn. R. App.
P. 36(b)). In making this determination, we consider the whole record and focus on the
“impact the error may reasonably be taken to have had on the jury’s decision-making.” State
v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008). “Where an error more probably than not
had a substantial and injurious impact on the jury’s decision-making, it is not harmless.” Id.
It is the defendant’s burden to demonstrate that the error probably affected the judgment,
rendering reversal appropriate. Denton, 149 S.W.3d at 15 (quoting Moore, 6 S.W.3d at
242).
In this regard, “‘the line between harmless and prejudicial error is in direct proportion
to the degree . . . by which [the] proof exceeds the standard required to convict . . . .’”
Spicer, 12 S.W.3d at 447 (quoting Delk v. State, 590 S.W.2d 435, 442 (Tenn. 1979)). “‘The
more the proof exceeds that which is necessary to support a finding of guilt beyond a
reasonable doubt, the less likely it becomes that an error affirmatively affected the outcome
of the trial on its merits.’” Toliver, 117 S.W.3d at 231 (quoting State v. Gilliland, 22 S.W.3d
266, 274 (Tenn. 2000)). Nevertheless, we must remain focused not simply on the weight of
the evidence, but on “the actual basis for the jury’s verdict.” Rodriguez, 254 S.W.3d at 372.
We turn, then, to the matters before the jury regarding each of the three crimes for which it
convicted Defendant.
Aggravated Robbery of Mexwayne Williams
We first examine the proof in support of Defendant’s conviction of aggravated
robbery involving the victim Mexwayne Williams. The elements of aggravated robbery are
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(1) “the intentional or knowing theft of property from the person of another” (2) “by violence
or putting the person in fear” which is (3) accomplished with a deadly weapon or by the
display of an item used or fashioned to lead the victim reasonably to believe the item to be
a deadly weapon. Tenn. Code Ann. § 39-13-401(a) & -402(a)(1) (2003). Our summary of
the evidence makes clear that sufficient proof supports the jury’s determination that Williams
was the victim of an aggravated robbery. The evidence of Defendant’s identity as one of the
perpetrators is much weaker, however.
Although Williams had picked out a photograph of Defendant from an array, he
testified that he was not certain of his identification. And, he was unable to identify
Defendant at trial as one of his two assailants. Only Turley definitively placed Defendant
at the scene of the crime. Turley testified that Defendant sat in a car while Turley and
Richardson committed the offense. According to Turley’s testimony, Defendant did
“nothing” during the attack on Williams, and Defendant’s participation was limited to pulling
over at Turley’s direction when Turley spotted the rims on Williams’s car.9 Turley’s
testimony that Defendant drove to Waller’s house in the car he remained in during the
robbery, and that Turley and Richardson followed him in Williams’s vehicle, was
corroborated by Waller’s testimony that he saw the three men and the two vehicles at his
house, and that Defendant was not driving Williams’s car but was driving a separate vehicle.
Also, Defendant told the police that he was already at Waller’s house when Twin came in
with Williams’s car. On the other hand, there is no proof in the record corroborating Turley’s
prior inconsistent statement to the police that Defendant got in and drove Williams’s car after
Turley got the keys from the victim.10
In addition to considering the strength of the State’s proof of this offense, we consider
the extent to which the prosecution attempted to link this crime with the erroneously
consolidated subsequent crimes in its opening statement and closing arguments. See Toliver,
117 S.W.3d at 231. During opening statement, the prosecutor told the jury that he would be
9
Turley also testified that Defendant was “aware” and “knew” that Turley was going to rob Williams
when he pulled over. This proof was relevant to establishing that Defendant was criminally responsible for
Turley’s actions in robbing Williams. See Tenn. Code Ann. § 39-11-402(2) (2003) (“A person is criminally
responsible for an offense committed by the conduct of another 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[.]”).
10
An accomplice’s testimony must be corroborated by some independent proof in order to support
a conviction. State v. Bough, 152 S.W.3d 453, 464 (Tenn. 2004). Corroborative proof is sufficient “‘if it
fairly and legitimately tends to connect the defendant with the commission of the crime charged.’” State v.
Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App.
1992)).
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giv[ing them] the ugly inside view to what these men were doing, the ugly
inside view how they were out robbing, looking for cars and rims, the ugly
inside view of how they did a robbery the day before [Dexter Birge was shot]
and robbed another innocent victim who thankfully didn’t lose his life.
During closing argument, the prosecutor asserted that Defendant and his cohorts “chose to
rob Dexter Birge” for his wheel rims and that, “[i]n fact, they did it the day before to
Mexwayne Williams in the same area of town, the same motive.” Later, the prosecutor
argued that Defendant and his cohorts were “responsible for the terrible thing that happened
to Mr. Birge and his family,” and then added that Defendant was “also responsible for the
day before, when he was up to no good the day before with Tommy Turley, and we find out
Kelly Richardson, when they robbed Mexwayne Williams.” During final summation, the
prosecutor asked rhetorically whether it was “just a big coincidence” that both victims’
vehicles were found at Defendant’s uncle’s house, and posited “I submit to you it’s not a
coincidence. They were involved for one reason. They wanted rims. They wanted money.”
These comments were designed to encourage the jury to bolster the proof of each
crime with proof of the other. This is precisely the evil that Tennessee Rule of Evidence
404(b) is designed to avoid. See Shirley, 6 S.W.3d at 251 (reversing defendant’s convictions
and remanding charges for retrial where trial court erroneously consolidated four armed
robberies and “the credibility of . . . each witness was bolstered by the testimony of other
witnesses concerning similar offenses,” and consolidation “invited the jury to infer the
[defendant’s] guilt from a perceived propensity to commit armed robbery”); see also Dotson,
254 S.W.3d at 387 (cautioning that a “jury should not ‘be tempted to convict based upon a
defendant’s propensity to commit crimes rather than . . . [upon] evidence relating to the
charged offense’”) (quoting Spicer, 12 S.W.3d at 448).
While the proof is marginally sufficient to support Defendant’s conviction of the
aggravated robbery of Mexwayne Williams, it is far less than overwhelming. Given the
relative weakness of the State’s case against Defendant for the aggravated robbery of
Williams, and the prosecutor’s repeated efforts to bolster the proof of each case by reference
to proof of the other, we hold that the erroneous consolidation of the indictments
affirmatively appears to have affected the verdict of the jury as to this offense.11
Accordingly, Defendant is entitled to a reversal of his conviction of the aggravated robbery
of Mexwayne Williams and a new trial on this charge. This result is unfortunate for both the
11
We also point out, once again, that “lenience in the enforcement of such an established rule of
procedure [as has been set forth regarding the consolidation of offenses] would not encourage future
compliance with that rule.” Dotson, 254 S.W.3d at 390.
15
victim and the judicial system, and results from the trial court’s and the prosecution’s mutual
failure to apply properly the well-established law regarding the consolidation of offenses.
The numerous times this Court has been constrained to reverse convictions on this basis, see,
e.g., Dotson, 254 S.W.3d at 390; Denton, 149 S.W.3d at 17; Spicer, 12 S.W.3d at 449;
Shirley, 6 S.W.3d at 250-51, is unsatisfactory. We therefore urge both trial courts and parties
to tread more carefully in this area of criminal procedure.
First Degree Felony Murder and
Especially Aggravated Robbery of Dexter Birge
We turn now to the proof supporting Defendant’s convictions of the first degree
felony murder and especially aggravated robbery of Dexter Birge on March 29, 2004. The
elements of first degree felony murder are (1) the killing of another (2) in the perpetration
of any statutorily designated felony, including robbery. Tenn. Code Ann. § 39-13-202(a)(2)
(2003). The elements of especially aggravated robbery are (1) the intentional or knowing
theft of property (2) from the person of another (3) by violence or putting the person in fear
(4) accomplished with a deadly weapon and (5) the victim suffers serious bodily injury.
Tenn. Code Ann. § 39-13-403(a) (2003). In this case, the proof is overwhelming that Dexter
Birge was shot to death during the theft of his vehicle. The State therefore established that
someone committed the crimes of first degree felony murder and especially aggravated
robbery against Birge. While Defendant did not confess to these crimes, the proof of his
identity as a participant in both crimes is very strong. Turley testified that he threatened
Birge with a gun in order to obtain the keys to Birge’s vehicle. When the two men began
struggling, Defendant joined the fracas. Turley heard a shot but denied that he fired it. He
testified that Defendant had a gun at the time. Willie Johnson corroborated Turley’s
testimony that, while Turley and Birge were fighting, a third man “came up from the side of
the building” and shot the victim. Corey Richmond testified that he overheard Defendant and
Turley discussing the crime and stated that he overheard Turley ask Defendant why
Defendant shot the victim. According to Richmond, Defendant responded, “well, he was
whupping you. I had to help you out. I had to get him up off you.”
Although Defendant admitted to having been involved in the altercation between
Turley and Birge, he told the police that he ran over to the fighting men simply to back
Turley up. According to Defendant, it was Turley who shot Birge. However, Defendant also
admitted to having gotten rid of his gun after the shooting and to having burned the clothes
he was wearing at the time. “Any attempt by an accused to conceal or destroy evidence . . .
is relevant as a circumstance from which guilt of the accused may be inferred.” Tillery v.
State, 565 S.W.2d 509, 511 (Tenn. Crim. App. 1978).
This proof is sufficiently strong to convince us that the jury would have convicted
Defendant of the first degree felony murder and especially aggravated robbery of Birge even
16
had it not heard any proof about the crime against Williams. That is, the trial court’s error
in consolidating the indictments does not affirmatively appear to have affected the jury’s
verdict as to the two offenses committed against Birge. Accordingly, Defendant is entitled
to no relief as to these convictions on the basis of the trial court’s error.
CONCLUSION
The trial court erred in failing to conduct a hearing on Defendant’s objection to the
State’s motion to consolidate his offenses, in failing to set forth its findings of fact and
conclusions of law, and in granting the State’s motion. The trial court’s error was not
harmless with respect to Defendant’s conviction of the aggravated robbery of Mexwayne
Williams. We therefore reverse that conviction and remand this matter for retrial on that
charge. The trial court’s error was harmless with respect to Defendant’s convictions for
the first degree felony murder and especially aggravated robbery of Dexter Birge, and we
therefore affirm those convictions. See Prentice, 113 S.W.3d at 333 (holding that
erroneous consolidation was harmful as to one conviction, requiring reversal and retrial,
but was harmless as to other conviction, allowing affirmance).
The costs of this cause are taxed to the State of Tennessee.
___________________________________
CORNELIA A. CLARK, CHIEF JUSTICE
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