State of Tennessee v. Unjolee Tremone Moore

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 22, 2016

STATE OF TENNESSEE v. UNJOLEE TREMONE MOORE

Appeal from the Criminal Court for Hamilton County
No. 280014 Don W. Poole, Judge
___________________________________

No. E2015-00942-CCA-R3-CD – Filed September 20, 2016
___________________________________

A jury convicted the defendant, Unjolee Tremone Moore, of first degree felony murder;
attempted especially aggravated robbery, a Class B felony; attempted second degree
murder, a Class B felony; and the employment of a firearm during the commission of or
attempt to commit a dangerous offense, a Class C felony. On appeal, the defendant
challenges the sufficiency of the evidence, the trial court‟s refusal to dismiss based on the
failure of police to collect a co-defendant‟s telephone, and the trial court‟s decision to
admit the defendant‟s statement to police into evidence. After a thorough review of the
record, we conclude that the defendant is not entitled to relief, and we affirm the
judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Brandon Raulston (at motion for new trial and on appeal); and R. Garth Best and Kelli L.
Black (at trial), Chattanooga, Tennessee, for the appellant, Unjolee Tremone Moore.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Neal Pinkston, District Attorney General; and Cameron Williams, Assistant District
Attorney General, for the appellee, State of Tennessee.
 OPINION

FACTUAL AND PROCEDURAL HISTORY

The defendant‟s convictions stem from a plan laid by the defendant and his co-
defendants, Steven James Ballou, Harold Francis Butler, and John Thomas Simpson, to
rob the murder victim, Bernard Hughes. According to the defendant‟s statement to
police, he planned to rob the murder victim because the victim sold marijuana and would
not call the police. When two of the co-defendants demanded the victim‟s money, the
victim resisted the robbery and was killed. The victim‟s friend, Tim Westfield, sustained
a gunshot wound when he attempted to aid the victim in fighting off two of the co-
defendants. The defendant acknowledged to police that he was the driver and had helped
to plan the crime. In his statement, he implied that Myra Collier, a witness who was
present in the victim‟s home, might have been involved with the robbery.

The defense moved, prior to trial, to suppress the defendant‟s statement to police,
arguing that he had been denied his right to counsel and that he had not signed a rights
waiver. The defendant also asserted that he was entitled to relief based on law
enforcement‟s failure to record the entire interview in which he gave his statement. The
transcript of the hearing on this motion is not part of the record before us. In its written
order, the trial court summarized the testimony at the suppression hearing by noting that
Investigator Michael Wenger had testified that the defendant was advised of his rights
and never requested a lawyer. Investigator Wenger noted that the interview was recorded
in two separate audio files because the batteries on his recording device failed during the
interview. When Investigator Wenger left the room to change the battery, two agents in
the Alcohol, Tobacco, and Firearms division continued to speak to the defendant, and this
portion of the interview was summarized in their report. At some point after the batteries
were replaced, the memory on the device became full, and it could no longer record.
Investigator Wenger had experienced problems with the device on three or four prior
occasions. According to the trial court‟s order, the defendant testified that he did not sign
the rights waiver and that he had asked for a lawyer several times. The trial court denied
the motion to suppress the statement or to dismiss the indictment for failure to preserve
the entire statement, but the court stated it would give an instruction to the jury regarding
the break in the recording.

Prior to trial, the defendant also joined the other co-defendants in moving to
dismiss the indictment based on law enforcement‟s failure to collect a cellular telephone
that had belonged to co-defendant Harold Butler. The transcript of this hearing has been
supplemented per the defendant‟s request and is now a part of the appellate record.
Investigator Wenger testified that on July 13, 2010, after the defendant‟s arrest, he
received a call from the fugitive division informing him that the telephone of Harold
-2-
Butler had been found. The telephone was not in Mr. Butler‟s possession, however, but
in the possession of Antonio Watkins. Investigator Wenger testified that Lieutenant
Edwin McPherson was on the scene and that Lieutenant McPherson told him “not to take
the phone and to not question anyone about it.” When he asked why, Lieutenant
McPherson told him that the federal marshals on the scene needed it. Investigator
Wenger then received a call from his commander, Sergeant Bill Phillips, telling him that
he was to obey the order from Lieutenant McPherson. Sergeant Phillips confirmed that
he called Investigator Wenger, and he testified that he was prompted to do so by
Lieutenant Eidson, who instructed him to tell Investigator Wenger to “to leave the phone
alone.” Sergeant Phillips asked Investigator Wenger to note the interaction in his report,
and Sergeant Phillips testified that he had never had such a request in twenty-three years.

Investigator Wenger testified that the federal marshals told him they no longer
needed the telephone and that they then talked to Lieutenant McPherson. As a result,
Lieutenant McPherson said, “Well, go ahead and interview Mr. Watkins about it, but
don‟t take the phone.” Investigator Wenger testified that he believed it was an iPhone
and that he was not able to navigate the telephone. As a result, he was able to find
pictures of Mr. Butler but was not able to find the text messages or any associated social
media accounts. Mr. Watkins told Investigator Wenger that he had bought the telephone
three days earlier. Investigator Wenger did not find anything of significance to the
investigation on the telephone. He stated that he believed he was able to get call records
for Mr. Butler, and that what might have been lost “was stuff that was actually stored in
the phone.”

Lieutenant McPherson testified that Myra Collier, one of the witnesses to the
murder, was his niece. He stated it was “possible” that she gave him information on the
case. When asked if she had called him on June 29, 2010, he responded that he had put
her in touch with Investigator Wenger. Lieutenant McPherson did not deny ordering
Investigator Wenger not to recover the telephone and or speaking to Lieutenant Eidson,
but he stated that he did not recall doing either.

Mr. Watkins testified that he had bought the telephone from a man in front of the
“Okey-Dokey.” He denied that the man was Mr. Butler, and he stated that the telephone
had no photos or other information on it when he got it. He stated that he had owned “a
thousand” telephones since that time, that he does not keep telephones long, and that he
has never had an iPhone. He recalled that the telephone was “cheap” but denied telling
police that he got it from a man and a woman in a white Altima or that he traded two
“dime bags” of marijuana for it. Investigator Wenger testified in rebuttal that Mr.
Watkins had said that he bought the telephone from Mr. Butler, who was the passenger in
a white Altima, and that Mr. Watkins stated the telephone was given in exchange for two

-3-
“dime bags” of marijuana. The trial court denied the motion to dismiss, concluding that
the materiality of the telephone was “entirely speculative.”

At trial, Myra Collier testified that she had known the victim for sixteen years and
that he was her best friend. Ms. Collier had been in a relationship with one of the co-
defendants, Mr. Ballou, and he and the defendant were acquainted with the victim
because they had come to the victim‟s house a few months prior to the homicide to see
Ms. Collier. The victim sold marijuana from his house.

On June 28, 2010, Ms. Collier and Cindy Cross spent the afternoon at the victim‟s
apartment. After dinner, Timothy Westfield came to see the victim. Ms. Collier testified
that they had obtained liquor prior to Mr. Westfield‟s arrival but that she did not think
they had consumed much alcohol. She acknowledged that, according to a crime scene
photograph, the bottle of gin they had been consuming contained only about one-half of
one inch of liquid.

Ms. Collier testified at trial, although Ms. Cross did not. Ms. Collier testified that
she did not hear the knock when the assailants came to the door because she was in the
bathroom. When she emerged, Ms. Cross told Ms. Collier that she thought the victim was
being robbed, and Ms. Cross said she heard gunshots. The two women ran upstairs. Ms.
Collier did not recall Mr. Westfield telling her to go upstairs. She looked out of a
window and did not see anything, and she did not hear gunshots herself. The two were
upstairs only briefly. When they came down, they unlocked the door and saw the victim
lying on the porch, bleeding. Ms. Collier stated she checked the victim‟s pulse and that he
was not breathing. She acknowledged that she did not try to perform CPR despite her
prior nursing experience. Ms. Collier testified that she ran to get a police officer who
lived at the apartment complex. She did not recall calling 911. She acknowledged
having called her uncle, Captain Edwin McPherson, but stated the telephone call occurred
prior to the robbery.

On cross-examination, Ms. Collier did not recall telling the police that she did not
know the defendant at all, and she stated that she knew his face but did not know his
name. She acknowledged having gone on a trip with her cousin Ariel on Memorial Day
weekend, but she could not recall if she spoke with the defendant by telephone on that
trip. She did not know the location of the telephone to which the defendant may have
placed the Memorial Day weekend call. Ms. Collier did not recall telling police that she
did not introduce the defendant and the victim, although she testified, “but I guess I
probably didn‟t.” She denied having anything to do with the robbery or murder of the
victim.

-4-
 Mr. Westfield, who had known the victim since they were children, testified that
he came to the victim‟s house on June 28, 2010, between 10:30 and 11:00 p.m. to
socialize and to help the victim with a computer. When he arrived, two of the victim‟s
friends, Ms. Cross and Ms. Collier, were sitting outside, and the victim was on his way
home. The four went inside when the victim arrived, and Ms. Collier‟s cousin stopped by
to borrow some DVDs and then left. The four had been inside at least twenty minutes,
and the victim seemed “on edge,” when they heard a knock. Mr. Westfield testified that
Ms. Collier was not in the bathroom at the time of the knock. Ms. Collier, however, had
testified that she was in the bathroom. According to Mr. Westfield, the victim looked out
of the peephole, then turned to Mr. Westfield and gave him “a peculiar look.” The victim
opened the door, went out immediately, and closed the door behind him.

While the door was open, Mr. Westfield saw a shorter man and a taller man
standing outside. Mr. Westfield identified the taller man as John Simpson. The shorter
man was wearing a “do-rag” or half-mask over his face with two colors, black and teal,
and he had a gun. The shorter man was about five feet, four inches tall, had a tall bridge
on his nose, and light eyes. Mr. Westfield acknowledged that he did not recognize the
man at the time, but he stated that “as soon as I found out who it was, I knew it went two
and two together.” At trial he identified the shorter man as Harold Butler, whom he
described as unique in appearance. Mr. Westfield testified that Mr. Butler‟s stature was
consistent with wearing a size eight shoe. While the victim was passing out of the door,
Mr. Westfield could see that the shorter man had a gun, and he heard the shorter man say,
“Lay it down,” which was a demand for the victim‟s possessions.

Mr. Westfield testified that he told the two women to go upstairs and that he went
outside to assist the victim. Mr. Westfield testified at first that he opened the door, saw
the men scuffling, then shut the door, at which point it jammed. He later stated that the
door was jammed when he first tried to open it. One of the women told him that it was
only locked, and he opened it and went outside.

Outside, both of the men were hitting the victim on top of the head, and the victim
was fighting back. Mr. Westfield leaped at the taller man. He heard three shots and saw
two flashes in his eyes, and then everything went black. Mr. Westfield regained
consciousness in a bush and saw the victim lying on the porch. He did not see blood at
first and attempted to administer cardiopulmonary resuscitation (“CPR”), but “when I
blew in his mouth and squeezed his nose, my finger went through his nostril where the
bullet went in at and that‟s how I found the bullet wound, and when I bl[ew] in it, the
matter came out of the back of his head.” Mr. Westfield observed the shorter man hiding
behind the fender of a nearby car, and the man got in a late-model silver car with dark
windows. Mr. Westfield saw a shoe and baseball cap at the scene. He discovered that he
had a gunshot laceration on his forearm and that the tip of one finger had been essentially
-5-
severed by a bullet. Mr. Westfield acknowledged that he had told police the shorter man
said something like “break yourself” instead of “lay it down,” but he testified that the two
phrases had the same meaning. He told police that the car was either a Maxima or an
Altima. He did not recall saying that the car was gold and not silver, but he did not deny
it, explaining that he was “going crazy” at the emergency room. He acknowledged that
he only saw two men and that neither of the assailants was the defendant.

Mr. Westfield stated he did not know if the victim had received complaints that
too many people were coming to his house, and he stated that the victim had told him that
the victim no longer sold marijuana. He did not recall telling law enforcement at the
hospital that the victim had been getting complaints because he had too many visitors.
Mr. Westfield acknowledged that the victim and his guests had been drinking alcohol on
the evening of the homicide.

Investigator Michael Wenger testified that he was assigned to investigate the case.
He interviewed witnesses and visited the scene. Investigator Wenger was looking for the
defendant and found him in a parked 1999 gold or silver Nissan Maxima on July 9, 2010.
The owner of the vehicle and the defendant‟s girlfriend, Michelle Angel, was in the
passenger seat. Investigator Wenger testified that he gave the defendant Miranda
warnings and that the defendant signed a rights waiver prior the interview. He
acknowledged having failed to sign as a witness on the waiver and stated that he was not
aware that the defendant had been in special education or could not read until the
eleventh grade. Officer Phillip Narramore and a federal agent were also assisting with
the interview. Investigator Wenger testified regarding the failed battery and the memory
problem with the recording device. He stated that he left the interview room to download
the contents of the recording device, and when he returned “we had gotten most of what
we needed, so I didn‟t continue with the interview.” The interview began on July 9th and
ended on July 10th. The defendant was permitted to take breaks and given dinner. The
interview lasted four to six hours, but the defendant was at the station for ten to twelve
hours.

In the recorded interview, the defendant acknowledged his involvement in the
crimes. The defendant stated that “Ariel” had told him that the victim sold marijuana.
The defendant knew the victim by sight through Ariel but did not know the victim‟s
name. According to the defendant, he and Mr. Butler had spoken about robbing a “dope
boy,” and they targeted a drug dealer because “[t]o be honest with you those was the
easiest ones to get in the street . . . uh . . . cause like a dope boy won‟t call police.” The
defendant said that he and Mr. Butler spoke of the robbery at Mr. Butler‟s house
approximately a week before the crimes, and at that time, he told Mr. Butler, “I could use
some money too. I told „em about maybe Bernard.” The defendant told Mr. Butler that
the victim did not keep a gun. At first, the defendant stated that he and Mr. Butler were
-6-
alone during the conversation, but he later told police that Mr. Simpson was there as well.
The defendant told police that Mr. Butler had a .38 revolver, a Hi-Point .45 caliber
firearm, and a pump shotgun at his house.

The defendant also acknowledged that he anticipated sharing in the profits of the
robbery. He stated that he “let [Mr. Butler] do it all” and just wanted to “collect a cut on
the side.” The defendant stated that “[t]hey promised to break me off . . . a little of what
I get,” and he stated he would gain “[a] cut out of it.” More specifically, the defendant
expected to get approximately $3,000 if $10,000 were taken, which he stated was forty
percent. The defendant would get this money because he “turned him onto it.”

At first, the defendant acknowledged only taking the assailants to the apartment
earlier in the day, and he denied being on the scene during the homicide. According to
the defendant, on the day of the homicide, he took Mr. Butler and another man to the
victim‟s house, where several people standing outside saw them. The defendant told the
people that he was not hard to find and drove off. The defendant told police that during
the homicide, Mr. Butler was driving a gold Maxima, “[s]ame kind as my girl‟s.”

After police told the defendant that they had evidence putting him at the scene, the
defendant admitted that he was “over there,” although he insisted that he “never got out
of the car.” He stated, “I picked „em up. I dropped „em off.” The defendant told law
enforcement that he was in the car behind the apartment the entire time, heard gunshots,
and saw Mr. Butler and Mr. Simpson come around a corner. Mr. Butler was delayed
because he had been looking for a lost shoe. According to the defendant, Mr. Simpson
was armed with a .38 revolver, and Mr. Butler was armed with a .45 Hi-Point.

The defendant stated at first that he could not see from where he was sitting.
However, he eventually described the conflict, noting that after Mr. Butler knocked, Mr.
Butler “told [the victim] lay it down.” The defendant described a man coming to the
victim‟s aid. According to the defendant, Mr. Butler fired a shot in the air, and Mr.
Simpson then emerged from the bushes and fired twice. The defendant stated that Mr.
Butler then fired again. The house door opened and closed, and someone inside the
house fired out. The defendant dropped Mr. Butler and Mr. Simpson at Mr. Butler‟s
home and then went to his girlfriend‟s house. The defendant stated that he “didn‟t expect
it to happen like that.” He elaborated later that he did not know or expect that anyone
would get killed. The defendant told police that they did not acquire anything in the
robbery. In his statement, the defendant implied that Ms. Collier “had something to do
with it.”

Investigator Wenger stated that during his investigation, he spoke with Ms. Collier
and discovered that she had called her uncle after the homicide. She had also made two
-7-
911 calls that did not go through. He acknowledged that one witness at the scene had
seen a tan van and that the defendant also described a tan SUV. Investigator Wenger
also acknowledged that both a co-defendant and a witness said that the getaway vehicle
hit another car as it was leaving but that he was unable to locate damage on Ms. Angel‟s
Maxima or any car at the scene. Investigator Wenger stated that the other officers spoke
to the defendant while Investigator Wenger was out of the room and acknowledged that
he did not know if the defendant was threatened. He stated that he was not lying when he
told the defendant that they could place him at the scene because law enforcement had
telephone records indicating that the defendant was there. Investigator Wenger
acknowledged that a woman named Ariel had been in an argument that night with the
victim and that her telephone records were not investigated. Police did not locate the two
weapons which fired the shots, but they found a pump shotgun at Mr. Butler‟s residence.
Officer Narramore of the Chattanooga Police Department testified that he did not
remember questioning the defendant while Investigator Wenger was out of the room.
Neither he nor the federal agent threatened or coerced the defendant during the interview.

Police officers found a live round and two bullet casings at the scene. A bullet was
recovered from the frame of the doorway. They also discovered a baseball cap and a size
8 shoe. They swabbed a pool of vomit or bodily fluid found beside a vehicle.

From the gold Maxima, law enforcement recovered two cellular telephones, a ski-
mask type facial wrap, a turquoise blue bandana, and a pair of size 8 ½ shoes from the
trunk. Investigator Kenneth Burnette, Jr., acknowledged that he did not collect another
pair of shoes in the trunk and that he did not know if the size 8 ½ shoes were men‟s or
women‟s. He stated that he also recovered guns from the home of the defendant‟s mother
and girlfriend.

Dr. James Metcalfe, the medical examiner, testified that the victim had marijuana
in his system and a blood alcohol content of .139 percent. The victim died of two
gunshot wounds, both of which were fatal. One bullet entered the victim‟s left chest
toward the back, traveled through both lungs and the heart, exited the chest, and lodged in
the right arm above the elbow. The other bullet entered his right temple and eventually
lodged by the left occipital bone. The medical examiner testified that blood was coming
from the victim‟s nostrils but that his nasal bones appeared intact. He also testified that
the victim‟s ribs did not show breakage or other signs of CPR but that he could not rule
out that CPR had been performed. The victim exhibited no bruising showing his head or
body had been “stomped” or struck with a hard object, but he had an abrasion near the
belly button, an abrasion on the left hand, and two scrapes on the left shoulder. The
victim had $97 and a “dagger” in his pocket.

-8-
 The shoe recovered from the scene had DNA that was a mixture from at least three
individuals. Dr. Laura Boos, a special agent forensic scientist with the Tennessee Bureau
of Investigation (“TBI”), testified that she was able to exclude the victim, the defendant,
and two of the co-defendants as contributors. The test was inconclusive regarding
whether Mr. Westfield or Mr. Butler were contributors to the DNA in the shoe. The
defendant‟s DNA was recovered from the black facial wrap found in the trunk of his
girlfriend‟s car. The blue bandana from the car had DNA that was a mixture from three
individuals. The test excluded all the profiles submitted except the defendant, and it was
inconclusive regarding whether the defendant was a contributor.

Steve Scott, who is employed with the firearms identification unit of the TBI,
testified that the victim‟s clothing did not have gunshot residue, which could mean that
the gunshots were fired from more than four feet away or it could mean that they were
fired from closer but something interfered with the residue. The bullet recovered from
the victim‟s head was a .45 caliber bullet which exhibited riffling produced by guns made
by Hi-Point firearms company. The bullet recovered from the doorway was also a .45
caliber bullet, and it was fired from the same weapon that fired the bullet that lodged in
the victim‟s head. The bullet from the victim‟s arm was a .38 or .357 bullet. Agent Scott
determined that the two .45 caliber casings found at the scene “had been fired in one
firearm and one firearm only,” which was manufactured by Hi-Point. Agent Scott
testified that none of the firearms sent to him in the investigation had fired the bullets.
He acknowledged that the gun which fired the bullet in the victim‟s arm could have been
a .357 caliber weapon. He also acknowledged that a custom-made weapon which was
not a Hi-Point firearm might have fired the .45 caliber bullets.

During trial, the court revisited the issue of the loss of the telephone. Defense
counsel stated that there was an internal investigation into the failure to recover the
telephone and that an investigator had found that Lieutenant McPherson was not being
truthful. The trial court found that it was “improper” that the telephone had not been
collected. However, the court found that there would be no exculpatory value in Mr.
Butler‟s telephone for the defendant.

After the close of the State‟s proof, the State objected to the trial court‟s intention
to give an instruction on lost evidence with regard to the partial recording of the
defendant‟s statement. Relying on State v. Joshua Eugene Anderson, No. E2005-02660-
CCA-R3-CD, 2007 WL 1958641, at *8 (Tenn. Crim. App. July 6, 2007), the trial court
elected not to give the jury charge.

The jury found the defendant guilty of first degree felony murder, attempted
especially aggravated robbery, attempted second degree murder as a lesser included
offense of attempted first degree murder, and employment of a firearm during the
-9-
commission of a dangerous offense. The defendant received a life sentence for the felony
murder, fifteen-year sentences for the especially aggravated robbery and the attempted
second degree murder, and a six-year sentence for the weapons offense. The weapons
offense was ordered to run consecutively to the attempted second degree murder
conviction, and the other sentences were ordered to be served concurrently with one
another. The defendant appeals, challenging the sufficiency of the evidence, the trial
court‟s failure to dismiss the indictment based on the lost telephone, and the trial court‟s
failure to suppress the partially-recorded statement.

ANALYSIS

I. Sufficiency of the Evidence

The defendant does not contest the sufficiency of the evidence for the felony
murder conviction. However, he contends that the victim of the other convictions was
Mr. Westfield and that the defendant cannot be held criminally responsible for those
offenses because his actions were limited to assisting in the attempted robbery of Mr.
Hughes. Initially, we note that, contrary to the defendant‟s contention, the victim in the
attempted especially aggravated robbery conviction was not Mr. Westfield but the murder
victim, Mr. Hughes.

Under Tennessee Rule of Appellate Procedure 13(e), “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.”
The question before the appellate court is whether, after reviewing 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. State v. Pope, 427 S.W.3d 363, 368
(Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it may not
substitute its inferences drawn from circumstantial evidence for those drawn by the trier
of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury‟s guilty verdict,
approved by the trial judge, accredits the State‟s witnesses and resolves all conflicts of
evidence in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
“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). The State is entitled to the
strongest legitimate view of the evidence and to all reasonable and legitimate inferences
that can be drawn from it. State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004). A
guilty verdict replaces the presumption of innocence with one of guilt, and on appeal, the
defendant bears the burden of demonstrating that the evidence is insufficient to support
the conviction. State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). The elements of an
offense may be established exclusively by circumstantial evidence, and the standard of
-10-
review is the same for direct and circumstantial evidence. State v. Echols, 382 S.W.3d
266, 283 (Tenn. 2012). Circumstantial evidence may, by itself, support a conviction, and
the State is not required to exclude every reasonable hypothesis save guilt. Hawkins, 406
S.W.3d at 131.

A killing committed in the perpetration of or attempt to perpetrate a robbery is
felony murder. T.C.A. § 39-13-202(a)(2). The State need only show the intent to
commit the underlying felony. T.C.A. § 39-13-202(b). A person acts intentionally when
it is the person‟s “conscious objective or desire to engage in the conduct or cause the
result.” T.C.A. § 39-11-302(a).

To convict the defendant of attempted especially aggravated robbery, the State had
to show that the defendant intended to commit especially aggravated robbery and that he
acted with intent to cause a result that is an element of especially aggravated robbery and
that he believed “the conduct would cause the result without further conduct” on the
defendant‟s part. T.C.A. § 39-12-101(a)(2). Especially aggravated robbery requires the
State to prove the intentional or knowing theft of property from the person of another by
violence or putting the person in fear, when the robbery is accomplished with a deadly
weapon and the victim suffers serious bodily injury. T.C.A. §§ 39-13-403(a), -401(a).

For the attempted second degree murder conviction, the jury was charged that
State had to show that the defendant intended to commit second degree murder, that the
defendant engaged in an act intending to cause a result that is an element of second
degree murder, and that he believed the conduct would cause the result without further
action. T.C.A. § 39-12-101(a)(2). Second degree murder is the knowing killing of
another. T.C.A. § 39-13-210(a)(1).

Tennessee Code Annotated section 39-17-1324 prohibits armed dangerous
felonies. The statute makes it an offense to employ a firearm during the commission of or
attempt to commit a dangerous felony. T.C.A. § 39-17-1324(b). Attempt to commit first
degree murder and attempt to commit second degree murder are statutorily defined as
dangerous felonies. T.C.A. § 39-17-1324 (i)(1)(A), (B).

The jury was also charged with the theory of criminal responsibility. A person is
criminally responsible for the conduct of another when “[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.” T.C.A. § 39-11-402(2).

Criminal responsibility is not an offense but a theory by which the State may
prove guilt based on another‟s conduct. State v. Osborne, 251 S.W.3d 1, 16 (Tenn. Crim.
-11-
App. 2007). The justification for the theory is that aiders and abettors should be held
accountable for the harms they intentionally initiated or facilitated. State v. Sherman, 266
S.W.3d 395, 408 (Tenn. 2008). Mere presence during the commission of a crime cannot
establish criminal responsibility. Id. However, neither is physical participation
necessary. Id. “[E]ncouragement of the principal is sufficient.” Id. Criminal
responsibility also extends guilt to “„any other crime committed by the other in pursuance
of the common purpose, or as a natural or probable consequence thereof.‟” State v.
Carson, 950 S.W.2d 951, 954 (Tenn. 1997) (emphasis in Carson) (quoting Key v. State,
563 S.W.2d 184, 186 (Tenn. 1978)). “The doctrine extends the scope of criminal liability
to the target crime intended by a defendant as well as to other crimes committed by a
confederate that were the natural and probable consequences of the commission of the
original crime.” State v. Howard, 30 S.W.3d 271, 276 (Tenn. 2000). The question of
whether the offense committed was a natural and probable consequence of the underlying
crime falls within the province of the jury. Id.

Here, the defendant admitted that he helped to plan the robbery, that he drove the
assailants to the victim‟s home, and that he expected to be compensated from the
proceeds of the robbery for his role. The jury determined that the offenses against Mr.
Westfield were a natural and probable consequence of attempting to rob the murder
victim at gunpoint. Accordingly, the defendant was criminally responsible for the
attempted second degree murder of Mr. Westfield and the weapons offense despite the
fact that his plan to rob the murder victim did not specifically include a plan to shoot Mr.
Westfield. See State v. Dickson, 413 S.W.3d 735, 744 (Tenn. 2013) (“A natural and
probable consequence of this attempt to obtain money and drugs by force was the
shooting of two unarmed victims.”). There were numerous details corroborating the
defendant‟s confession, including that the bullets and casings were of the same caliber
and manufacture as the weapons the defendant identified as being used in the crime, that
a small sized men‟s shoe with DNA consistent with Mr. Butler‟s was found at the scene,
that a black facial wrap and teal bandana were found in Ms. Angel‟s car, that Ms. Angel‟s
car was consistent with the car identified by Mr. Westfield, that the defendant recounted
that Mr. Butler had made a demand for the victim‟s possessions, and that the defendant‟s
account of the crime was otherwise generally consistent with that of Mr. Westfield. The
assailants accomplished attempted murder of Mr. Westfield through the employment of a
firearm. See T.C.A. § 39-17-1324(b), (i)(1).

The State put on sufficient evidence that a rational trier of fact could have found
the elements of all of the offenses were established either through the defendant‟s own
conduct or through the conduct of co-defendants for whom he was criminally
responsible. Accordingly, the defendant is not entitled to relief.

-12-
 II. Lost or Destroyed Evidence

The defendant also asserts that he is entitled to relief due to the State‟s failure to
preserve co-defendant Butler‟s telephone and the State‟s failure to record the defendant‟s
entire statement. The State counters that Mr. Butler‟s telephone had no exculpatory value
and that State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999) does not apply to the failure to
record the entire statement.

The accused in a criminal trial is guaranteed the right to a fair trial under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and
article I, section 8 of the Tennessee Constitution. Part of the right to a fair trial is the
“constitutionally protected privilege to request and obtain from the prosecution evidence
that is either material to guilt or relevant to punishment.” Ferguson, 2 S.W.3d at 915. In
Ferguson, the Tennessee Supreme Court rejected the argument that the defendant must
show that lost evidence was due to bad faith actions undertaken by State actors. Id. at
916-17. Instead, when a defendant alleges that his right to a fair trial has been
compromised by the loss of evidence, the court must first determine whether the State
had a duty to preserve the evidence. Id. at 917. This duty is “difficult to define” but
generally includes the duty to preserve all evidence subject to discovery and inspection
under Tennessee Rule of Criminal Procedure 16. Id. The inquiry focuses on whether the
evidence is “constitutionally material” – in other words, “the evidence must potentially
possess exculpatory value.” State v. Merriman, 410 S.W.3d 779, 785 (Tenn. 2013). The
evidence must also be of such a nature that “the defendant would be unable to obtain
comparable evidence by other reasonably available means.” Ferguson, 2 S.W.3d at 917
(quoting California v. Trombetta, 467 U.S. 479, 489 (1984)).

Before the duty to preserve evidence arises, the evidence “must be expected to
play a significant role in [the defendant‟s] defense.” Merriman, 410 S.W.3d at 792.
Because it is lost, the court may be “unable to assess the precise nature of the evidence.”
Id. at 793. Accordingly, the evidence must only be “potentially exculpatory” in nature.
Id. at 784, 792 (concluding that video of traffic stop which could have been beneficial to
either the prosecution or the defense held “potential” exculpatory value).

If the court determines that the State had a duty to preserve the lost evidence, then
it must evaluate (1) the degree of negligence involved in the loss; (2) the significance of
the destroyed evidence, considered in light of the probative value and reliability of
secondary or substitute evidence that remains available; and (3) the sufficiency of the
other evidence used at trial to support the conviction. Ferguson, 2 S.W.3d at 917.
Regarding the third factor,

-13-
 when the State‟s evidence is overwhelming, a trial court may
determine that the lost evidence is less significant. On the
other hand, when the State‟s case is legally sufficient but is
based on minimal evidence, the trial court may find the same
lost evidence to be more significant when it considers all of
the evidence and balances the other Ferguson considerations.

Merriman, 410 S.W.3d at 787.

A trial court‟s decision concerning whether a trial without the missing evidence
would be fundamentally unfair is reviewed de novo. Id. at 791. Factual determinations
made by the trial court in assessing whether there was a constitutional violation are
conclusive on appeal unless the evidence preponderates against them. Id. The trial
court‟s remedy is reviewed for abuse of discretion. Id. at 791-92. A trial court commits
an abuse of discretion when it applies an incorrect legal standard or it reaches a decision
that is against logic or reasoning and that causes an injustice to the complaining party. Id.
at 791.

A. Failure to Collect Mr. Butler’s Telephone

The defendant claims that the failure to collect Mr. Butler‟s telephone should
result in dismissal of the indictment because the telephone constituted evidence which
was potentially exculpatory. The State initially argued that this issue was waived for
failure to include a transcript of the motion to dismiss, but the record was later
supplemented with the transcript, and the issue is properly before us.

Here, the telephone of Mr. Butler, a co-defendant, was not collected due to the
order given by Lieutenant McPherson. Lieutenant McPherson‟s niece was a witness to
the crime, and the defendant attempted to imply that she had “something to do with” the
crime. The trial court‟s finding indicates that Lieutenant McPherson‟s order was given in
bad faith, concluding that there was “no question” that the failure to collect the telephone
was “improper.” Investigator Wenger testified that he wanted to collect the telephone,
believed it might hold important evidence, and did not collect it because he had to follow
orders from his superiors. Investigator Wenger believed that he was able to obtain some
of the information which may have been on the telephone from call records. He stated
that he did not recover data which would have been stored in the telephone itself.

In order to be entitled to relief, the defendant must show that Mr. Butler‟s
telephone was constitutionally material evidence as to the defendant. In other words, he
had to show that the telephone held potentially exculpatory evidence as to him and that
he was unable to obtain comparable evidence from an alternate source. Merriman, 410
-14-
S.W.3d at 785. The defense also had to show that the evidence “might be expected to
play a significant role in the suspect‟s defense.” Id. (quoting Ferguson, 2 S.W.3d at 917).

The circumstances behind the failure to collect the telephone are troubling.
Investigator Wenger stated that he wanted to collect the telephone and believed it might
have evidentiary value, but he was prevented from doing so. Due to his lack of expertise,
he was not able to thoroughly examine the telephone‟s contents. Lieutenant McPherson
had a personal connection to a witness to the crime, and he could offer no rationale for
having prevented the seizure of the telephone. The trial court found that the order to
refrain from collecting the telephone was “improper.”

Nevertheless, the defendant does not on appeal offer any theory of how the
telephone would have been constitutionally material evidence as to him. 1 While the
location of the telephone might have some bearing on Mr. Butler‟s whereabouts at the
time of the crime, it is difficult to conceive how Mr. Butler‟s telephone could contain
information that was exculpatory as to the defendant, who acknowledged his role in
planning the robbery and gave numerous details corroborated by other witnesses and by
the physical evidence. Moreover, the threshold inquiry in Ferguson requires the
defendant to show that comparable evidence was not available from an alternate source,
and Investigator Wenger testified that he believed that he was able to obtain Mr. Butler‟s
telephone records. We conclude that the defendant has not shown that the lost evidence
was constitutionally material as to him or unavailable from an alternate source.

We further note that Mr. Butler raised the same issue on direct appeal in his case
and that a panel of this court concluded that the telephone was not constitutionally
material evidence as to Mr. Butler and that there was no duty to preserve it. State v.
Harold Francis Butler, No. E2014-00631-CCA-R3-CD, 2015 WL 2233122, at *5 (Tenn.
Crim. App. May 11, 2015), perm. app. denied (Tenn. Sept. 17, 2015). Accordingly, we
conclude that the defendant is not entitled to relief.

B. Malfunction of Recording Equipment

The defendant also argues that the State failed to preserve evidence when
Investigator Wenger‟s recording device first ran out of battery and subsequently ran out
of memory. The trial court initially ruled that it would give the jury an instruction
regarding the State‟s failure to record the entire interview, but it ultimately concluded that

1
At the hearing, the trial court was presented with the argument that the telephone might
have contained evidence of the crime being planned by other co-defendants. No proof was
introduced regarding whether such communications were available from an alternate source,
such as the co-defendants‟ cellular telephones or telephone records.
-15-
the State had no duty to record the interaction. The State noted the absence of the
transcript of the motion to suppress from the record and asserted that any related issues
were waived.

The transcript of the motion to suppress hearing is not included in the appellate
record, but the record does contain the parties‟ subsequent arguments made during trial
and the trial court‟s decision not to give a jury instruction. The appellant has the duty to
prepare a record which conveys “a fair, accurate and complete account of what transpired
with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). In the
absence of a transcript, we presume that the trial court‟s judgments were correct. See
State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Accordingly, we
presume that the trial court‟s findings based on the evidence introduced during the
motion to suppress were correct. We proceed to consider whether the defendant has
demonstrated any error in the trial court‟s subsequent ruling on the issue.

The trial court relied on State v. Joshua Eugene Anderson and State v. Linda H.
Overholt in concluding that no jury instruction should be given. See State v. Joshua
Eugene Anderson, No. E2005-02660-CCA-R3-CD, 2007 WL 1958641 (Tenn. Crim.
App. July 6, 2007); State v. Linda H. Overholt, No. E2003-01881-CCA-R3-CD, 2005
WL 123483 (Tenn. Crim. App. Jan. 21, 2005). In Joshua Eugene Anderson, the
defendant gave a statement which police attempted to video record. Joshua Eugene
Anderson, 2007 WL 1958641, at *3. Because the video equipment malfunctioned, only
the defendant‟s “final statement,” which was audio recorded, was available at trial. Id.
This court held that because the State had no duty to record the interview, the threshold
inquiry in Ferguson was not met. Id. at *8. In Linda H. Overholt, the defendant was
interviewed by police, but the device did not record any sound during the first twenty-
seven minutes of the interview due to a malfunction. Linda H. Overholt, 2005 WL
123483, at *3, 5. This court held that the State had no duty to preserve the interview via
recording and that therefore the defendant was not entitled to relief under Ferguson. Id.
at *6.

The trial court did not err in concluding that the failure to record the entirety of the
interview does not entitle the defendant to relief under Ferguson. Although there was
some evidence that the malfunction was the result of negligence, Ferguson concerns
evidence which existed at one point and was subsequently lost or destroyed. In this case,
the evidence was simply never in existence. See State v. Angela K. Pendergrass, No.
E2013-01409-CCA-R3-CD, 2014 WL 1232204, at *7 (Tenn. Crim. App. Mar. 25, 2014),
perm. app. denied (Tenn. Aug. 26, 2014) (noting that Ferguson “does not require the
creation of evidence”); State v. Randall S. Sparks, No. M2005-02436-CCA-R3-CD, 2006
WL 2242236, at *5 (Tenn. Crim. App. Aug. 4, 2006) (“[W]e can find no case law in this
state that indicates that Ferguson applies to evidence that never existed.”); see also
-16-
Merriman, 410 S.W.3d at 794 (concluding that “[t]he State had no duty to create a video
recording of Ms. Merriman‟s traffic stop” and that only after the recording was made did
it become part of the State‟s evidence). Because the State did not have a duty to create
this evidence by recording the entirety of the interview, the defendant is not entitled to
relief.

CONCLUSION

Based on the foregoing analysis, the judgments of the trial court are affirmed.

____________________________________
JOHN EVERETT WILLIAMS, JUDGE

-17-