State v. Henry
| Decision Date | 21 December 2000 |
| Docket Number | 95-00005 |
| Citation | 33 S.W.3d 797 |
| Parties | STATE OF TENNESSEE v. GERALD LEANDER HENRY- IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE |
| Court | Tennessee Supreme Court |
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County No. 92-D-2010
We granted this appeal to determine whether the trial court erred in admitting statements made by the co-defendant following the arrest of the defendant and the co-defendant for first-degree murder, attempted first-degree murder and related offenses. The Court of Criminal Appeals concluded that although the conspiracy to commit the offenses had ended, the co-defendant's statements were made during the course of and in furtherance of a separate conspiracy to conceal the offenses and were admissible pursuant to the co-conspirator exception to the hearsay rule set out in Tenn. R. Evid. 803(1.2)(E). After reviewing the record, we conclude that the co-defendant's statements were made after the conspiracy had ended and, therefore, were not admissible under Tenn. R. Evid. 803(1.2)(E). We further conclude, however, that the error was harmless, and we affirm the judgment of the Court of Criminal Appeals.
Criminal Appeals affirmed.
E. RILEY ANDERSON, C. J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, JR., AND JANICE M. HOLDER, JJ., joined. WILLIAM M. BARKER, J., not participating.
Jeffrey A. DeVasher, David M. Siegel, and Hollis I. Moore, Jr., Assistant Public Defenders, Nashville, Tennessee, for the appellant, Gerald Leander Henry.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J. Brand, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINIONOn July 16, 1992, the victims, William Weaver and Larry Harrington, were installing alarms in a church dormitory while working for a security firm in Nashville, Tennessee. Weaver was eating lunch inside a van in the church parking lot when the van was approached by the defendant, Gerald Leander Henry, and a co-defendant, Sean O'Brien. O'Brien removed a pistol from a duffel bag and ordered Weaver from the van and into the dormitory where they encountered Harrington.
Once inside the dormitory, Weaver and Harrington were ordered to lie on the floor face down. Henry bound Harrington's hands and feet with wire. Harrington heard a crash, followed by Weaver moaning. Henry then tied Weaver's hands and feet. O'Brien fired three shots, striking each victim once in the back of the head. Weaver was killed. Harrington miraculously survived, managed to free himself, and called 911 for help. Harrington was hospitalized for 13 days and was treated for serious, life-threatening injuries. Harrington had "no doubt" that Henry and O'Brien were the men who had committed the crimes and later testified as to the foregoing facts at trial and identified Henry.
After the shootings, O'Brien and Henry fled from the scene in the victims' van. When spotted by law enforcement officers near Jackson, Tennessee, O'Brien, who was driving the van, attempted to outrun the officers. Driving at speeds of up to 100 miles per hour, he ran a red light, forced vehicles off the road, and evaded a police road block. When the van was finally stopped, Henry got out of the vehicle and complied with officers' commands. O'Brien refused to surrender and had to be pulled from the van by officers.
Following his arrest, Henry was advised of his Miranda rights and made a voluntary confession. He told officers that he met O'Brien only a day or two before the shootings and that they intended to go to California together but did not have a vehicle. When they approached the white van in the church parking lot, O'Brien used a .45 caliber pistol to force the victim out of the van. Henry told officers that he did not know O'Brien had a pistol. Henry admitted that once inside the dormitory, he tied and bound the victims before O'Brien shot them. Henry further stated that he did not know that O'Brien was going to shoot the victims. He admitted, however, that once he and O'Brien fled from the scene in the victims' van and were being pursued by police, he threw the .45 caliber pistol out of the van. Henry later accompanied officers to the location where the gun had been discarded.
After Henry and O'Brien were both arrested and after Henry had made his statement to police, they were placed together in the same interview room. A hidden camera and recording device had been installed in the room in order to videotape and record their conversation. Henry and O'Brien had a 27-minute conversation, a large portion of which was whispered or was otherwise unintelligible on the videotape. At several points, both O'Brien and Henry looked around the room and under the table and chairs, as if looking for a hidden microphone.
The audible portions of the videotape are summarized as follows: Early in the conversation, O'Brien stated that he did not intend to shoot anyone; that the gun went off because he was nervous and scared; and that he was "sticking with his story" that the van, which he stole, already had the keys in it. O'Brien told Henry, After asking what Henry had told the police, O'Brien said, Henry appeared to say that he would be quiet. O'Brien reiterated that Henry had heard shots but did not see what happened. Henry replied that he "wished he had dreamed it" but that the police had found the gun.
The discussion then turned to the evidence and other matters. O'Brien said that Henry's fingerprints were on the gun, and Henry agreed. O'Brien mentioned the death penalty and indicated his belief that only a few states, including Tennessee, used the death penalty. O'Brien recounted that he had a history of mental illness and asked if Henry did as well. Henry appeared to respond in the affirmative. O'Brien speculated that his mental illness might prevent a charge of first-degree murder. O'Brien said that he had been charged with first-degree murder, attempted first-degree murder, and assault with a vehicle, but he denied that he intended to run over any police officers when evading the roadblock.
At this point in the conversation, O'Brien told Henry, "Don't tell 'em anything I did; just tell 'em stuff that you did, okay?" O'Brien added,
I'm not going to say anything you did. Only the stuff I did, 'cause that's all they're worried about. They're not worried about what you did. You can tell 'em your story. . . . You don't have to say 'Sean did this.'
Henry appeared to nod in response but did not respond audibly. O'Brien concluded,
After several inaudible or unintelligible moments, the conversation returned to the offenses. O'Brien said that the surviving victim untied himself and called the police. He then said that he should have tried to evade the police at the last roadblock. O'Brien told Henry, "All we wanted was the car . . ., you know that." Then he added, "I don't even know why I did that." O'Brien discussed the number of shots that had been fired and said that he "didn't even look" and "didn't want to look." He then demonstrated that he looked away as he fired shots at the victims. O'Brien wondered aloud what the victim's family was doing and then referred to himself as a "cold-blooded killer." He reiterated that the "gun went off" because he was "scared." When Henry indicated that they "could have left [the gun] there," O'Brien responded that the police would have found it. Near the conclusion of the conversation, Henry stated, "We got our story together." O'Brien once again said that Henry did not have to mention his name. The videotape concludes with O'Brien stating, "You know they're listening."
The videotaped conversation was to be offered as evidence by the State against defendant Henry at trial. Henry's counsel moved to exclude the videotaped statement prior to trial, arguing, among other grounds, that O'Brien's statements were inadmissible hearsay. The prosecution argued that the videotape, including the statements made by O'Brien, were admissible under Tennessee Rule of Evidence 803(1.2)(E), the "co-conspirator" exception to the rule excluding hearsay statements. The trial court admitted the entire videotape after concluding that "the conspiracy had not ended at that point in time."
The jury convicted Henry of first-degree felony murder, attempted first-degree premeditated murder, especially aggravated kidnapping, especially aggravated robbery, and two counts of especially aggravated burglary. Henry received a life sentence for first-degree felony murder, 20 years for attempted first-degree premeditated murder, 20 years for especially aggravated kidnapping, 20 years for especially aggravated robbery, and 10 years for each especially aggravated burglary. The sentences were to be served concurrently to one another but consecutively to the life sentence, for an effective sentence of life plus 20 years.
On appeal, the Court of Criminal Appeals reduced one of the convictions for especially aggravated burglary to aggravated burglary, but affirmed the remaining convictions and sentences. The court held that although the original conspiracy between Henry and O'Brien ended upon their arrest, O'Brien's statements were made during a separate conspiracy to conceal the crimes they had already committed and were, therefore, admissible pursuant to Tenn. R. Evid. 803(1.2)(E).1
We granted this appeal to address the application of Tenn. R. Evid....
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