State v. Carter

Decision Date08 March 2016
Docket NumberNo. M2014-01532-CCA-R3-CD,M2014-01532-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. TIMOTHY DAMON CARTER
CourtTennessee Court of Criminal Appeals

Direct Appeal from the Criminal Court for Davidson County

No. 2012-B-1221

Cheryl Blackburn, Judge

A Davidson County jury convicted the Defendant, Timothy Damon Carter, of theft of property valued over $60,000 and of being a felon in possession of a handgun. The trial court sentenced the Defendant as a career offender to a total effective sentence of thirty years in confinement. On appeal, the Defendant contends that: (1) the trial court erred when it determined that he had forfeited his right to counsel; (2) the trial court erred when it denied his motion to suppress evidence seized from his vehicle; (3) the trial court erred when it determined that the State had not committed a Brady violation; (4) the evidence is insufficient to sustain his conviction for theft of property valued over $60,000; (5) the trial court erred when it admitted into evidence a business record and an out-of-court statement pursuant to hearsay exceptions; (6) the trial court erred when it declined to bifurcate the felon in possession of a weapon charge; and (7) the trial court erred when it limited the Defendant's ability to call witnesses to testify. After a thorough review of the record and applicable authorities, we affirm the trial court's judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.

Manuel B. Russ, Nashville, Tennessee, for the appellant, Timothy Damon Carter.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Glenn S. Funk, District Attorney General; Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. Facts

This case arises from the theft of a comic book collection from a residence in La Vergne, Tennessee in April 2010. The Defendant was identified as a suspect in the theft when he sold or attempted to sell some of the comic books at area stores. During the investigation, law enforcement officers went to the Defendant's apartment and, upon seeing the stolen comic books in the backseat of a vehicle registered to the Defendant, impounded his vehicle to the police department. After obtaining a search warrant, law enforcement officers searched the Defendant's vehicle and recovered a handgun. The Defendant was later arrested, and a Davidson County grand jury indicted him in November 2010 for theft of stolen property valued less than $60,000 and for being a felon in possession of a weapon. In April 2012, the State filed a superseding indictment for theft of property valued at more than $60,000 and for being a felon in possession of a weapon.

A. Pre-Trial Motions and Issues
1. Representation

At his arraignment on January 15, 2011, the Defendant was declared indigent by the trial court and Jessamine Grice with the District Public Defender's Office was appointed as counsel. Ms. Grice was later removed from the case, and the trial court appointed Graham Prichard as counsel. Mr. Prichard made an oral motion to withdraw, and the trial court granted his motion and appointed Paul Walwyn as counsel. The record contains little documentation regarding the bases for the removal of Ms. Grice and Mr. Prichard. In subsequent orders, however, the trial court noted that the Defendant had "difficulties" with both of these attorneys. On August 19, 2011, Mr. Walwyn filed a motion to be relieved as counsel. The trial court denied Mr. Walwyn's motion after a hearing. On November 18, 2011, Mr. Walwyn filed a second motion to withdraw as counsel, which the trial court took under advisement after a hearing. On January 5, 2012, the trial court issued an order denying Mr. Walwyn's second motion to withdraw as counsel.

The Defendant subsequently filed several motions and requests pro se, including a "Motion Requiring Counsel to Withdraw & Appointing Replacement Counsel," in which he requested that Mr. Walwyn be removed from his case. On May 2, 2012, Mr. Walwyn filed a third motion to withdraw as counsel, and on May 16, 2012, the trial court held a hearing on the motion, during which the following statements were made:

[MR. WALWYN]: I think basically, as far as communications, I'm not in a position where I can effectively represent [the Defendant]. We've had our differences in the past. We tried to put some of them aside. Ithink [the Defendant] had asked me the first time to withdraw a while back and we had a hearing. And Your Honor instructed us to try to see if we could work around our differences and instructed [the Defendant] and myself with what we needed to do and try to file things. But in the interim things have deteriorated further. [The Defendant] has been filing these other motions [pro se]. I've been trying to comply with some of his requests. And I had been filing some of the things he's been sending me even though they weren't things I thought may or may not be appropriate. And I think that has engendered a lack of trust. And there has been a couple of incidents via phone with my staff, and I would just simply ask Your Honor to relieve me of [the Defendant's] representation at this time without going into further detail.
THE COURT: Well, this is obviously not the first difficulty we've had with [the Defendant]. I had to relieve Mr. Prichard and then you were on the case. . . .
[THE DEFENDANT]: It's been to the point that all I was asking for is communication with Mr. Walwyn. Mr. Walwyn has been on my case for like thirteen months now, and he hasn't took [sic] like ten or twenty minutes to come see me to discuss my case. And I've written Mr. Walwyn like several certified letters right here, and he hasn't responded back to any of my letters. I know on January the 5th you asked Mr. Walwyn to correspond with me through a VIE or video conference call, and he did not do so.
THE COURT: Okay. Now, where are you located, Mr. Carter?
[THE DEFENDANT]: I'm at Riverbend.
THE COURT: Riverbend. Okay. Well, the case is ready to - it was ready for trial. We do now have this superseding indictment. But obviously if it's gotten to the point where - according to this motion here you have been verbally abusive to [Mr. Walwyn's] staff and calling his office. I think the one thing you don't understand - because we have gotten quite a bit of correspondence from you, Mr. Carter - is that you're represented by counsel.
[THE DEFENDANT]: Yes ma'am.
THE COURT: And you can file motions until the sun comes down, and you're not going to be heard, okay, because you're represented by counsel. So you're just [] wasting your paper.
[THE DEFENDANT]: Well, see, I didn't know that Your Honor. That's the reason why it's a lack of communication between me and [Mr. Walwyn]. If I knew that a motion can't be filed pro se on my behalf, the only thing Mr. Walwyn has got to do is correspond with me and let me know, well, Mr. Carter, you're not allowed to file these motions in court. But there's been no communication, Your Honor. All I ask is for a lawyer to communicate with me in my proceedings, and he did not do so. It's been thirteen months.
THE COURT: Okay. Well, I'm going to relieve him. I have an attorney in mind, Mr. Jack Byrd. He won't be here today. He'll be here tomorrow. I'm going to appoint him to your case. You can either cooperate or not, it really doesn't matter.
[THE DEFENDANT]: I cooperate, Your Honor. That's one thing I do is cooperate with my attorney.

At the conclusion of the hearing, the trial court granted Mr. Walwyn's motion and appointed Jack Byrd as counsel. At a subsequent hearing on July 27, 2012, Mr. Byrd advised the trial court that he needed to be relieved from the case, based on his conversations with the Defendant. Mr. Byrd told the trial court that it was also the Defendant's wish that Mr. Byrd be relieved from representation. Addressing the Defendant, the trial court admonished him to cooperate with Mr. Byrd, his fourth attorney, and stated that Mr. Byrd would remain on the case.

In a hearing on September 4, 2012, the issue of Mr. Byrd's representation of the Defendant was addressed again. The trial court noted that, during the hearing, the Defendant left the courtroom voluntarily. Mr. Byrd advised the trial court that the Defendant would not cooperate with Mr. Byrd's preparation for trial. Mr. Byrd stated: "[The Defendant] and I have different views. He believes he is a much better legal scholar than I." Mr. Byrd stated that the Defendant did participate in video conferences with Mr. Byrd. The trial court, noting that the Defendant had turned his back to the trial court during his arraignment, acknowledged that the Defendant did not "always want to participate in the process."

On September 11, 2012, Mr. Byrd filed a motion to be relieved as counsel. After a hearing on the motion, the trial court denied the motion and issued an order stating the following:

The Court held a hearing on the motion on September 19, 2012, where the Court acknowledged that [the] Defendant has been represented by four different counsel during the pendency of his case - Jessamine Grice, Graham Prichard, Paul Walwyn, and currently, Jack Byrd - and has had difficulties with each of his counsel. [The] Defendant even spat at Mr. Byrd after the suppression hearing held on September 4, 2012.
At the hearing on counsel's motion, the Court inquired if [the] Defendant wished to proceed pro se with the assistance of elbow counsel. [The] Defendant's education, however, is limited to 8th grade and as demonstrated by his particularly completed Rule 44(a) Written Waiver & Order - Pro Se Representation, [the Defendant] lacks the ability to represent himself at trial.

Mr. Byrd subsequently filed numerous motions in limine on the Defendant's behalf. On October 16, 2012, Mr. Byrd filed a second motion to...

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