State v. Gomez

• Decision Date: 15 April 2005
• Citation: 163 S.W.3d 632
• Parties: STATE of Tennessee v. Edwin GOMEZ and Jonathan S. Londono.
• Court: Tennessee Supreme Court

Page 632

163 S.W.3d 632

STATE of Tennessee v. Edwin GOMEZ and Jonathan S. Londono.

Supreme Court of Tennessee, at Nashville.

January 4, 2005 Session at Knoxville.

April 15, 2005.

Order Denying Petition for Rehearing May 18, 2005.

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Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, attorneys for Appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, Attorneys for Appellant, Jonathan S. Londono.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Victor S. (Torry) Johnson III, District Attorney General; and Bret Gunn and Roger Moore, Assistant District Attorneys General, for the Appellee, State of Tennessee.

David L. Raybin, Nashville, Tennessee and Wade V. Davies, Knoxville, Tennessee, for Amicus Curiae, The Tennessee Association of Criminal Defense Lawyers.

OPINION

FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. E. RILEY ANDERSON, J., filed a concurring and dissenting opinion, in which ADOLPHO A. BIRCH, JR., J., joined.

We granted this appeal to determine whether the defendants are entitled to relief on their claim that admission of testimony about a co-defendant's oral statement violated their Sixth Amendment right to confrontation and whether the defendants' sentences were imposed in violation of their Sixth Amendment right to trial by jury. We conclude that admission of testimony about a co-defendant's oral statement violated the defendants' Sixth Amendment right to confrontation because the defendants had no prior opportunity to cross-examine the co-defendant. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Nevertheless, we conclude that Gomez is not entitled to relief on this claim because he has failed to preserve it for review and has failed to establish the prerequisites for obtaining relief via plain error review. Although Londono preserved the issue for plenary appellate review, we conclude that he is not entitled to relief because the constitutional error is harmless beyond a reasonable doubt. Finally, we conclude that the defendants' sentences were not imposed in violation of their Sixth Amendment right to jury trial. See United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Thus, the defendants are not entitled to relief on this claim. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

I. Factual Background

On March 16, 1999, Carlyle & Company Jewelers, ("Carlyle & Company"), a retail store located in the Green Hills Mall of Nashville, put on a special one-day "trunk" showing of approximately 100 Rolex watches with an estimated value of $750,000. The sales event had been advertised throughout the Nashville area. The next day, March 17, 1999, security guards Roy Rogers ("Rogers") and Eugene Nagele ("Nagele") arrived at the store shortly before 9:00 a.m. to retrieve and transport the watches to another store in the Nashville area for a similar event. For transport, the watches were stored in metal boxes, which were then stacked onto a luggage cart. Shortly after 9:00 a.m., Rogers and Nagele pushed the luggage cart from the store into the adjoining Green Hills Mall parking garage, where they had parked. Before they arrived at their vehicle, assailants attacked Rogers and Nagele from behind and stole the watches.¹ Nagele testified that he heard the sound of footsteps "rushing" toward him, but before he could turn toward the assailants, he sustained a blow to the back of his head. Before losing consciousness, Nagele heard a gunshot. When he regained consciousness, Nagele heard someone calling for him. Realizing that Rogers had been shot, Nagele rushed to assist him. Twenty-one days later, Rogers died as a result of complications from a single gunshot wound. Although Nagele was unable to identify any of the assailants, he recalled hearing them speaking a language other than English.

Deborah Sloan ("Sloan") testified that she arrived with her two young children at Green Hills Mall between 9:10 and 9:15 a.m. on March 17, 1999. After parking in the garage adjoining the mall, but before exiting her minivan, Sloan "heard a bang, a loud bang, and a lot of running and rustling and things like that." Turning toward this noise, Sloan saw one man lying on the ground, a second man "on his hands and knees fac[ing] away from [her]," and three other men "just running around[.]" Two of these men carried away the metal boxes containing the watches, and the third man "lean[ed] over beside the man who was lying on the ground and pick[ed] up a gun." The three men then departed in a "very nice" "deep red" or "purplish-maroon" Chrysler minivan. Sloan described the three men as young, in their "twenties," with "dark skin, dark hair," and "fairly-average height and weight." When shown photographic arrays prior to trial, Sloan identified Edwin Gomez ("Gomez") and Jonathan S. Londono² ("Londono") (collectively "the defendants") as two of the men she had seen take the boxes and gun and depart in the minivan on March 17, 1999. She again identified Gomez and Londono at trial.

Christina Hudson ("Hudson"), a Carlyle & Company employee, testified that she had arrived and parked in the Green Hills Mall parking garage shortly before 9:00 a.m. on the day of the robbery and shooting. While waiting in her car for a co-worker to arrive, Hudson noticed a dark-skinned male, whom she described as either Hispanic or African-American, enter the passenger side of a purplish-colored minivan. When the man opened the van door, Hudson saw three other men slouched down in the back of the vehicle. Hudson was unable to identify any of the men in the van.

Barbara Franklin ("Franklin"), also an employee of Carlyle & Company, testified that two Hispanic men had come into the store on the afternoon before the robbery. Franklin recalled that the shorter of the two men had asked many questions about the watches and about which merchandise would remain in the store after the one-day event. This man had "spoke[n] English very haltingly" as if "English [were] not his first language," and the taller man had not spoken at all.³

After hearing news reports about the crime, Michelle Nicholson ("Nicholson") contacted the police and told them that she had noticed a maroon van with Florida license plates traveling toward Nashville on Interstate 40 shortly after 8:00 a.m. on March 17, 1999. Nicholson observed the van "weaving in and out of traffic" and saw four men seated in the vehicle, all of whom she described as Hispanic with "dark hair." Nicholson recalled that the van later exited Interstate 440 onto Hillsboro Road going toward Green Hills Mall.

Based on Nicholson's tip and information which witnesses had provided at the scene, investigators canvassed hotels and motels along the interstate highways, westbound to the Davidson County line, seeking information concerning Hispanic men traveling in a maroon van. On March 18, 1999, investigators discovered that four Hispanic men, driving a white van and a maroon van, had rented two rooms at the Howard Johnson's Motel at Interstate 40 and Charlotte Pike. Security videotapes from the motel showed two men at the front desk, a maroon van and a white van in the motel parking lot, and persons coming and going from the vans. Although the tapes were not sufficiently clear to identify these persons, the front desk clerk at the motel identified Londono⁴ from photographic arrays.

Investigators obtained additional evidence from the motel rooms. Inside the closet of Room 204, investigators found ammunition consistent with the bullet that struck the victim. Investigators recovered from inside this ammunition box a fingerprint, which later was matched to Londono's right middle finger. Investigators found another fingerprint on the telephone extension in Room 204, which later was matched to Gomez's right middle finger.⁵ Housekeepers also discovered in Room 204 a seat that had been removed from a 1996 or 1997 Chrysler minivan, and this seat was turned over to police investigators.

Telephone records revealed that a call had been made on March 14, 1999, from the motel to a pay telephone located outside a restaurant "[a]bout a block-and-a-half" down the street from the Green Hills Mall. Another call had been made on March 16, 1999, at 7:10 a.m. from the motel to a pay telephone located inside the mall, directly across from and facing Carlyle & Company. On March 15 and 16, 1999, a calling card had been used to place telephone calls from the motel room and from a Nashville restaurant to two different numbers in Bogota, Columbia. The same calling card was used on the afternoon of March 17, 1999, to place a call from Montgomery, Alabama, to Miami, Florida and was used again on the morning of March 18, 1999, to place a call to Bogota, Colombia from Gomez's home telephone number in Miami, Florida.

Julie Jimenez ("Jimenez"), who had lived with Londono in Miami in the spring of 1999, testified that Londono and Gomez lived in the same apartment complex and that Gomez visited Londono's apartment daily. Londono told Jimenez that he and Gomez were cousins. Before leaving town for "[s]even or ten days" in the spring of 1999, Londono told Jimenez that he was going somewhere to make some money, but he refused to tell her where he was going. Jimenez recalled that Londono left Miami with Gomez, Bryant Guartos ("Guartos"), Guartos' wife Maria Sierra, and three other Hispanic men whose names Jimenez did not know. The group left Miami in two vehicles, a white van and a maroon van. Shortly before he returned to Miami, Londono telephoned Jimenez, telling her that he had been to Tennessee, that he had...