State v. Ellis
| Decision Date | 13 January 2015 |
| Docket Number | No. E2011-02017-SC-R11-CD.,E2011-02017-SC-R11-CD. |
| Citation | 453 S.W.3d 889 |
| Parties | State of Tennessee v. Justin Ellis |
| Court | Tennessee Supreme Court |
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellant, State of Tennessee.
Joshua D. Hedrick, Knoxville, Tennessee, for the appellee, Justin Ellis.
OPINION
We granted the State of Tennessee permission to appeal in this criminal proceeding to address two issues: (1) the analytical framework that a successor judge should utilize in deciding whether he can act as the thirteenth juror, and (2) the standard of appellate review of a successor judge's determination that he can or cannot act as the thirteenth juror. We hold that there is a rebuttable presumption that a successor judge can act as the thirteenth juror. We also hold that an appellate court should review de novo a successor judge's decision about acting as the thirteenth juror. Applying these principles to the instant case, we hold that the successor judge committed no reversible error in determining that he could act as the thirteenth juror. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the trial court's judgments of conviction.
Justin Ellis (“the Defendant”) was charged with two counts of aggravated burglary, one count of employing a firearm during the commission of a dangerous felony, one count of especially aggravated kidnapping as to victim Isiah Cobb, one count of especially aggravated kidnapping as to victim Jessica Greene, one count of aggravated robbery of victim Cobb by fear, one count of aggravated robbery of victim Cobb by violence, one count of aggravated robbery of victim Greene by fear, and one count of aggravated robbery of victim Greene by violence. Prior to trial, the State dismissed one of the aggravated burglary counts and the two counts of aggravated robbery as to victim Cobb.
At the ensuing jury trial in October 2010, the prosecutor explained during her opening statement that Isiah Cobb and Jessica Greene (“the victims”) lived in a house together with their roommate, Justin Woodruff, the Defendant's cousin. She stated that the Defendant broke into the house within hours of Woodruff moving out. The Defendant threatened the victims with a gun and stole cash, Christmas gifts, and Cobb's car.
Defense counsel asserted during his opening statement that the Defendant had been staying with the victims and Woodruff for several days as a guest in the victims' house. The Defendant knew that the victims kept a quantity of marijuana in the house. While the victims were out of the house, the Defendant found and took the victims' marijuana. After the victims got home and were in the bedroom, the Defendant took their car keys and the marijuana and left in Cobb's car. Because the victims did not want to tell the police about the marijuana that had been stolen from them, they fabricated the theft of other items of similar value.
After opening statements concluded, the following proof was adduced:
Officer John David Lawson of the Knoxville Police Department testified that he responded to a call from 167 Chickamauga Avenue in Knox County (“the House”) at approximately 12:24 a.m. on December 29, 2009. There, he met two victims, and they informed him that they had been “robbed.” Officer Lawson viewed the House, and he described it as being in “disarray.” He examined the back door of the House and described it as “damaged and didn't have a very good lock on it.” Officer Lawson also explained that his patrol car recorded the conversation that he had with the victims while they were outside the House. The recording was admitted into evidence and played for the jury.1
On cross-examination, Officer Lawson acknowledged that the victims told him that about $650 in cash and some jewelry had been taken. He also acknowledged that he had never been inside the House before and did not know if the “disarray” he observed was typical or not. When asked to describe the damage he noticed to the door, Officer Lawson testified, “Well, the strike plate was—looked old and worn, and it looked like it had been knocked around a little bit, and it was cracked.” He clarified that it was the frame around the strike plate that was cracked and that the frame was not knocked out of the door. He did not notice any footprints or other marks on the door. He did not request that any photographs be taken of the door.
On redirect examination, Officer Lawson testified that his written report indicated that the victims stated that their assailant had taken a wallet, a purse, $650 in cash, two cell phones, jewelry, coins in a jar, clothing, and the keys to a Mercury car.
Isiah Cobb, twenty-one years old at the time of trial, testified that, in December 2009, he lived at the House with his girlfriend, Jessica Greene. He had been living there approximately six months. In August 2009, Justin Woodruff moved into the House with them. Cobb understood that Woodruff and the Defendant were friends. While he lived in the House, Cobb worked for Little Caesars as a manager.
Cobb got home at about midnight on the night in question. He and Greene were inside the House with the “bottom door handle” locked. While Cobb was in the “back room,” he “heard a loud commotion bust through the back door.” Cobb was talking to Greene's brother on his cell phone and went to investigate. He saw the Defendant inside the House near the back door, holding a gun. Cobb stated that the Defendant was wearing gloves and a black hoodie. The Defendant told Cobb to drop his phone and then demanded Cobb's belongings.
Cobb testified that the Defendant pointed his handgun at Cobb's face and chest and ordered Cobb not to move. The Defendant told Cobb that, if Cobb moved, the Defendant would kill him. The Defendant also pointed his gun at Greene, saying, Cobb testified that the Defendant told both him and Greene to remove their clothes.
While the Defendant held the victims at gunpoint, he was “packing as much stuff as he can in his pockets.” The Defendant also put things in a bag. The Defendant took a Nintendo DS, an iPod touch, an “in-dash stereo,” a change jar, some jewelry, Greene's purse, and some clothing. The Defendant also took Cobb's wallet, including approximately $1100 in cash, and Cobb's car keys. Cobb explained that he had the cash to pay bills, including “about $600 to pay [his] rent,” his electricity bill, and both his and Greene's cell phone bills.
The Defendant left and returned less than a minute later, again ordering the victims not to move. The Defendant again left and returned, and, according to Cobb, ” Cobb testified that he was afraid the Defendant was going to kill him.
The Defendant finally left in Cobb's car, a Mercury Grand Marquis. Afraid that the Defendant was waiting to kill him, Cobb remained where he was until Greene's brother arrived. At that point, Greene was able to call the police on her brother's phone.
Cobb stated that, about one week prior to these events, Woodruff and the Defendant had come by the pizza store where Cobb was working, and the Defendant took an employment application. Cobb told the Defendant that he would try to get the Defendant hired. Cobb also stated that Woodruff moved out of the House on the day preceding the home invasion.
On cross-examination, the defense established that Cobb earned $11 dollars an hour, $16.50 an hour for overtime, and that he worked fifty-two to fifty-three hours per week. Cobb stated that he made 2 Cobb acknowledged that he originally claimed that the value of the cash and items taken from the House was approximately $9,000. He added that some of the items taken were Christmas gifts from other people.
Cobb acknowledged that he refused to accede to the Defendant's demand that he take off his clothes, explaining that he was “so scared, [he] don't [sic] even know what to do.” When asked about his previous contacts with the Defendant, Cobb responded, “I had seen him before when I was at work, and I've seen him around Justin Woodruff, but he had never been at my house before.” Cobb acknowledged, however, that it was possible that, without his knowledge, Woodruff had had the Defendant over to the House while Woodruff was living there.
In response to questions by the jury, Cobb testified that he had cash on him that night and that he was going to convert the cash to money orders the next morning, which he would then mail to pay his bills.
Jessica Greene, nineteen years old at the time of trial, testified that she had worked as an assistant manager at the Little Caesars on Broadway in Knoxville and, later, for a cleaning service. For Christmas 2009, her brother gave her an “iPod DS,” an iPod touch, and a Nintendo DS. She also had been given a Juicy Couture purse, a Coach purse, and a Coach wallet, as well as some clothes and jewelry. She and Cobb also had two cell phones, a 1995 Cadillac, and a Grand Marquis vehicle.
Greene identified the Defendant and stated that she had seen him two or three times before the night of December 28–29, 2009. On that night, she testified, she and Cobb had come home with dinner and gone into their bedroom to eat. She heard “a big...
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