State v. Hinton

• Decision Date: 20 February 2001
• Citation: 42 S.W.3d 113
• Parties: STATE of Tennessee v. Kevin Lebron HINTON.
• Court: Tennessee Court of Criminal Appeals

42 S.W.3d 113

STATE of Tennessee v. Kevin Lebron HINTON.

Court of Criminal Appeals of Tennessee, at Knoxville.

July 7, 2000.

Application for Permission to Appeal Denied February 20, 2001.

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William H. Ortwein, Chattanooga, Tennessee, for the appellant, Kevin Lebron Hinton.

Paul G. Summers, General and Reporter; Patricia C. Kussmann, Assistant General; William H. Cox, III, District General; Bates W. Bryan, Assistant District and C. Leland Davis, Special Prosecutor, for the appellee, State of Tennessee.

Application for Permission to Appeal Denied by Supreme Court February 20, 2001.

OPINION

Before TIPTON, J., delivered the opinion of the court, in which WOODALL, and GLENN, JJ., joined.

Kevin Lebron Hinton appeals from his convictions for first degree murder, attempted first degree murder, and especially aggravated robbery. He contends that the evidence is insufficient, that the trial court erred by denying his motion to suppress his statement, that he received ineffective assistance of counsel, that the trial court erred by failing to grant a continuance, that the trial court erred by admitting a 9-1-1 tape into evidence, and that the trial court erred by failing to grant a mistrial due to the prosecutor's improper statements during opening and closing. We hold that all issues except the suppression issue are without merit. With respect to the suppression issue, we hold that the trial court should have suppressed the statement because it was made during the course of plea negotiations, and the defendant did not waive his rights pursuant to Rule 410, Tenn. R. Evid., and Rule 11(e)(6), Tenn. R.Crim. P. The convictions are reversed and the case is remanded to the trial court.

The defendant, Kevin Lebron Hinton, appeals as of right from his convictions by a jury in the Hamilton County Criminal Court for first degree felony murder; attempted first degree murder, a Class A felony; and especially aggravated robbery, a Class A felony. For the felony murder conviction, the defendant was sentenced to life without parole. As a Range I, standard offender, he was sentenced to twenty-two years in the Department of Correction for the attempted first degree murder conviction. For the especially aggravated robbery conviction, the defendant was sentenced to twenty years in the Department of Correction. The defendant presents the following issues for our review:

1. whether the evidence is sufficient to support the felony murder conviction;

2. whether the trial court erred by denying his motion to suppress a statement he made to the police;

3. whether his attorney was ineffective by failing to ensure that any statements he made were in the course of plea negotiations and could not be used against him;

4. whether the trial court erred by failing to grant a continuance upon the state's failure to provide proper notice of its intent to seek an enhanced punishment;

5. whether the trial court erred by admitting into evidence a 9-1-1 tape; and

6. whether the trial court erred by failing to grant a mistrial when the prosecutor made prejudicial comments during opening statement and closing argument.

We reverse the judgments of conviction because of the trial court's erroneous admission into evidence of the defendant's statement, and we remand the case to the trial court.

At trial, Thomas "Butch" Cripps testified that he owns the Kwik-E Liquor Store on Rossville Boulevard and that Chris Calloway, the murder victim, worked at the store part-time. Mr. Calloway was working on the night of September 27, 1995, and Mr. Cripps came to the store at 10:45 to close it. Mr. Calloway stayed in the store talking to Mr. Cripps. Mr. Cripps testified that the defendant entered the store and walked up and down the aisles, looking around. The defendant then bought a miniature bottle of Canadian Mist and left the store. A few seconds later, another man entered the store wearing a ski mask and carrying a gun. The man put the gun to Mr. Calloway's head and made him walk to the counter with his hands raised. The man took a gun from Mr. Cripps's waistband, emptied the cash register, and demanded to know the location of the safe. Mr. Cripps told the man that he did not have a safe but gave him the rest of the money that was in a bag underneath the cash register. The man made Mr. Cripps and Mr. Calloway lie on the floor with their hands behind their heads. The man then walked over to Mr. Calloway and shot him in the back of the head. Mr. Cripps said that he jumped up and fought the man out of the store and that the man shot him in the hand and shoulder. The man ran behind the store, and Mr. Cripps went inside the store and called 9-1-1. Mr. Cripps said that Mr. Calloway was dead when he returned. Mr. Cripps testified that a hidden video surveillance camera recorded the incident. The videotape was played for the jury and was admitted into evidence.

Johnny Haynes testified that he is the custodian of the 9-1-1 tapes and that a call was received by 9-1-1 on September 27, 1995, at 11:02 p.m. from 4409 Rossville Boulevard. The tape of the call made by Mr. Cripps was played to the jury and admitted into evidence. During the call, Mr. Cripps reported that he and his employee had been shot by a black male in his early twenties.

Chattanooga Police Department Detective Charles Russell testified that when he arrived at the scene, he learned that the defendant had been detained with his car in a gravel parking lot south of the liquor store. Detective Russell testified that a drainage ditch and brush growth separated the gravel lot from the store and that the defendant's car was backed up to an alley and was facing Rossville Boulevard.

Detective Miller testified that he interviewed the defendant on February 4, 1997, and that the defendant gave a statement. The statement was tape recorded and transcribed. The tape was played for the jury and admitted into evidence. In his statement, the defendant stated that early in the day on September 27, he, Frederick Miller, and Gary Fitch were drinking but ran out of money. He and Miller decided to rob someone. They drove around in the defendant's car, and Miller picked out the liquor store. The defendant entered the store first to see how many people were inside and if it had a security camera. The defendant walked around the store, bought a small bottle of Canadian Mist, and went outside to the car. He told Miller that two people were in the store and that he did not see a security camera. Miller put on the defendant's toboggan, the defendant gave him his loaded gun, and Miller went inside.

The defendant stated that two police officers drove up to his car and asked what he was doing. He told the officers that his headlights were not working. He gave the officers his identification, and then they heard shots fired. The officers investigated the shooting and determined that Mr Calloway was dead. They took the defendant to the station for questioning but then let him go. The defendant stated that he then looked for Miller at Miller's cousin's house. He said he told Miller's cousin that Miller had shot and killed someone and that they needed to get out of town. The defendant said he then went to Gary Fitch's house and told him that Miller had killed someone. He said that Miller came to Fitch's house and told him not to worry because the case was circumstantial. He said Miller told him that he had "put up" the gun. The defendant then left, and Miller left town.

Chattanooga Police Department Officer Jerry Taylor testified that he and his partner, Joseph Brooks, were on patrol on the night of September 27. He said that they were driving on Rossville Boulevard when he glanced at the liquor store and saw a male coming out of the alley behind the store. The officers drove behind the store to the gravel lot and saw the defendant's car parked next to the bushes. The defendant immediately turned on his headlights when they approached. The officers turned on their blue lights and got out of the car. Officer Taylor asked the defendant what he was doing, and the defendant said that his headlights were not working. The defendant produced his driver's license, and then they heard shots fired. Officer Brooks stayed with the defendant while Officer Taylor investigated the shooting. Officer Taylor testified that the man he saw walking from the alley to the store was not the defendant.

JoHanna Skelton testified that she is Frederick Miller's aunt and that she knows the defendant. She said that the men were good friends. She said that after the shooting, the defendant came to her apartment and said that the police had been questioning him. He asked where Miller was, and Ms. Skelton told him that she did not know. She said the defendant stated, "We shot somebody and I need to get in contact with Fred because we sic in some trouble."

Dr. Charles Harlan testified that he is a forensic pathologist and a county medical examiner. He performed the autopsy on Mr. Calloway and testified that Mr. Calloway died from a gunshot wound to the back top of the head. He said that the wound was consistent with Mr. Calloway lying on the ground and being shot in the back of the head by someone in front of him.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his felony murder conviction. He argues that because the shooting occurred after Miller received the money, it was collateral to and not in perpetration of the robbery. He further argues that Miller's shooting Mr. Calloway was not foreseeable and that he cannot be held responsible for Miller's actions. The state contends that the evidence is sufficient.

Our standard of review when the sufficiency of the evidence is questioned on appeal is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the...