State v. Hernandez

Decision Date15 May 2019
Docket NumberNo. M2016-02511-CCA-R3-CD,M2016-02511-CCA-R3-CD
CourtTennessee Court of Criminal Appeals

Appeal from the Criminal Court for Davidson County

No. 2013-C-2028

Steve Dozier, Judge

In 2013, a Davidson County jury convicted the Defendant, John Steven Hernandez, of first degree premeditated murder for a killing that occurred in 1993, for which the trial court imposed a sentence of life in prison. On appeal, the Defendant contends that the trial court erred when it: (1) did not dismiss the charge against him based on pre-indictment delay; (2) did not dismiss the charge against him based on post-indictment delay; (3) denied his motion to suppress evidence; (4) made several erroneous evidentiary rulings; and that (5) the evidence is insufficient to sustain his conviction; and that (6) the Defendant is entitled to a new trial based upon the cumulative effect of the errors. After review, we affirm the trial court's judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which D. KELLEY THOMAS, JR., and J. ROSS DYER, JJ., joined.

Jeffrey A. DeVasher (on appeal), Georgia Sims and Kevin J. Griffith (at trial), Assistant Public Defenders, Nashville, Tennessee; Angela L. Bergman and David R. Esquivel (on appeal), Nashville, Tennessee, for the appellant, John Steven Hernandez.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Stacy L. Rebecca and Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of Tennessee.

I. Facts

This case arises from the murder of Annis Szekely, which occurred in her home in East Nashville on March 7, 1993. On July 23, 2013, a Davison County grand jury indicted the Defendant, who was the estranged husband of the victim's daughter, for first degree premeditated murder. The Defendant filed an affidavit of indigence and the trial court appointed him counsel.

A. Pre-Indictment and Post-Indictment Delay

On April 23, 2014, the Defendant entered a plea of not guilty to the charge against him, and the trial court set a hearing for May 22, 2014. On January 21, 2015, the State moved the trial court to reset the case, which at the time of the motion was set for June 8, 2015. On February 6, 2015, the Defendant's attorney informed the trial court the State had requested the case be reset and that the Defendant was "not opposed" to the case being reset. The parties agreed to reset the trial for August 17, 2015.

On August 5, 2015, the Defendant filed a motion seeking a continuance of the trial because his counsel had learned there was DNA evidence remaining from scrapings taken from underneath the victim's fingernails that could be independently tested. The trial court granted the motion and reset the trial for April 4, 2016.

On February 2, 2016, the Defendant filed a pro se motion asking the trial court to appoint him as co-counsel because his current counsel had not been responsive. The trial court denied this motion.

On March 30, 2016, the Defendant filed a motion to dismiss the case for speedy trial violation or, in the alternative, be granted a continuance. The Defendant noted there had been a twenty-year delay between the crime and the State's filing of the indictment, which he asserted violated his right to due process. The motion stated further that Defendant's counsel was still unprepared for trial two years after being appointed, so the Defendant would have to give up his right to a speedy trial in order to obtain competent counsel. The motion argued that the pre-indictment delay violated the Defendant's due process right and that the post-indictment delay violated his right to a speedy trial. The State countered that the Defendant had not shown that it had intentionally caused the delay or that he was prejudiced by the delay.

The parties then referenced a motion that the Defendant's counsel ("Counsel"), an assistant public defender, had filed the day before the March 31 hearing. Counsel acknowledged that even though the Defendant's trial was scheduled for the following Monday, she was unsure whether she could be prepared to argue the motion at the present time. Counsel then discussed the pre-indictment and post-indictment delay, saying that she considered herself a State actor for purposes of determining whether the Defendant's speedy trial rights had been violated. She asserted that her unpreparedness should be imputed to the State because she was paid by the State, who did not adequately fund heroffice. Insufficient funding caused her caseload to be "excessive" and thus she was unable to adequately prepare for the Defendant's trial. She noted the Defendant had waited nine months before being extradited and had endured a three-year delay. She further noted that it had been two years since the Defendant had been arraigned. The Defendant's counsel noted that there had been "delays on both sides," and said that while she had thought she would be prepared for trial, she was not. She further informed the trial court that her unpreparedness put the Defendant in the untenable position of having to either waive his right to a speedy trial or, in the alternative, to represent himself.

The Defendant's counsel asked that the trial court dismiss the indictment or, in the alternative, release the Defendant on his own recognizance. The Defendant's counsel reiterated that it was the Defendant's desire not to continue the case. He wanted to proceed, even if it meant moving forward pro se because he had been incarcerated for more than two years. The State said that it was ready to proceed on the set trial date of April 4, 2016.

The trial court set a hearing for April 11, 2016, during which it tasked the parties to present evidence about the pre and post indictment delays.

At the April 11, 2016 hearing, the Defendant's counsel informed the trial court that she was prepared to move forward with presenting proof on the pre-indictment delay but that she needed at least a month to prepare evidence on the post-indictment delay issue.

The Defendant's counsel asked that the trial court appoint outside counsel to litigate the issue of the post-indictment delay. The trial court set a hearing for that particular issue for May 9, 2016, and the hearing then proceeded on the pre-indictment delay issue.

1. Pre-Indictment Delay

Glenn Arnold testified that he was an investigator for the Public Defender's office and had investigated this case. He said he had visited the police property room on two occasions, and reviewed and photographed the items displayed to him on both occasions. Mr. Arnold testified that when he first viewed the evidence in January 2015, some of the items were stored in plastic bags with tears or holes in them and that some of the bags were empty. Mr. Arnold agreed that there were a "number" of evidence bags that were torn, ripped, or damaged in some way. He photographed those bags.

Mr. Arnold testified that he saw two test tubes: a human blood sample and a saliva sample. The property tag had a different defendant's name, different incident number,and different victim's name. On his second trip to the property room in April 2016, Mr. Arnold noticed some of the evidence had been re-bagged. He took additional pictures of that evidence. Mr. Arnold testified that he never encountered anything that was identified as the Defendant's blood.

Mr. Arnold testified that when he viewed the evidence the week before the hearing, the evidence that included a different defendant's name and a different victim's name was no longer included.

Mr. Arnold testified that several of the witnesses in this case were now deceased. One of the witnesses was Dr. Charles Harlan, the medical examiner who conducted the autopsy, and the other was Detective E. J. Bernard, who investigated the case. He also believed that a civilian witness, Andrew Saicasson, was deceased.

During cross-examination, Mr. Arnold agreed that Mr. Saicasson was one of the victim's sons and that he was not in town when the homicide occurred. Mr. Arnold agreed that Dr. Harlan's report was contained in the discovery and that another medical examiner could review the doctor's findings and testify about the report.

Mr. Arnold agreed that the victim had been found with her hands tied and bound to a bed with a plastic bag over her head. While he was unsure whether the items missing from the property room would have been helpful to the defense, he said that it would have been helpful if the defense could have seen the items law enforcement gathered, which included chains, straps, a book called "Slave Mistress," a black mask, a leather mouth part, clamps, hooking tightener, bullets, and a pistol. Mr. Arnold also agreed that the Defendant's DNA had been taken by swab while he was incarcerated in Texas on an unrelated matter, and sent to Tennessee for testing. The Defendant's DNA was not taken from a vial of blood contained in evidence.

Amber Elaine Treat, a private investigator, testified that the Public Defender's office hired her to assist in this investigation. She read the discovery report and investigated potential alibi witnesses. She recounted that the Defendant said he had been working at Labor Source on March 6 before the murder, so she contacted the owner of Labor Source, Michael Dodson. She said Mr. Dodson told her he was unable to retrieve the "punch-in, punch-out" records for 1993 because the computer software only kept track of payments made and not the time records of his employees. He also said he was only required to keep time records for seven years, so the Defendant's time records no longer existed.

Ms. Treat said she listened to an audio recording of an interview with KalonRadovich, the son of the Defendant's ex-wife, Victoria Ramsey1, and the grandson of the victim. Mr. Radovich...

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