State v. Killion, No. E2008-01350-CCA-R3-CD (Tenn. Crim. App. 6/22/2009)
| Decision Date | 22 June 2009 |
| Docket Number | No. E2008-01350-CCA-R3-CD.,E2008-01350-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. BOBBY KILLION AND STEPHEN EWING. |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Hamblen County; No. 07-CR-449; John Dugger, Judge.
Judgments of the Criminal Court Affirmed.
Agnes Sipple Trujillo, Bean Station, Tennessee, for the appellant, Bobby Killion.
D. Clifton Barnes, Assistant Public Defender, for the appellant, Stephen Ewing.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; C. Berkely Bell, District Attorney General; and Kim Morrison, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood witt, Jr., J., delivered the opinion of the court, in which Joseph M. Tipton, P.J., and Norma McGee Ogle, J., joined.
A Hamblen County Criminal Court jury convicted the defendants, Bobby Killion and Stephen Ewing, of one count each of dog fighting, a Class E felony, see T.C.A. § 39-14-203 (2006), and assessed a $2,800 fine against each defendant. The Hamblen County Criminal Court sentenced each defendant as a Range I, standard offender to two years' incarceration in the county jail and ordered a fine of $2,000. The defendants appeal, arguing that the trial court erred by denying their motions to suppress evidence found in Mr. Ewing's basement because the discovery of the evidence occurred during an illegal search. The defendants maintain that Mr. Ewing's consent to search his basement, which was the result of an illegal seizure and duress, was not voluntarily given. The defendants further argue that the convicting evidence was legally insufficient and that their two-year sentences were excessive. Mr. Killion individually challenges the trial court's finding during the suppression hearing that a 9-1-1 call implicated dog fighting, and he argues that the cumulative effect of the State's characterization of the evidence entitled him to a new trial. Discerning no error, we affirm the judgments of the trial court.
On May 28, 2007, officers of the Morristown-Hamblen County Humane Society ("Humane Society") received an anonymous call reporting dog fighting at Mr. Ewing's residence. After meeting with city police officers at the sheriff's department, the Humane Society officers and city police officers arrived at Mr. Ewing's residence. The officers heard dogs barking, and one officer spoke with an unidentified female at the front door of the home while another officer used an "alley" to approach the back yard, where a group of individuals and two dogs were present. The officer drew his gun and pointed it at one of the dogs, which the officer believed was untethered at the time, and asked that the dog be secured. Mr. Ewing, who was holding the pit bulldog at the time of the officer's arrival, complied. Upon noticing a "blacked out" window in the basement of the home, a second officer asked Mr. Ewing to open the basement door. In the basement, the officers found Mr. Killion, two pit bulldogs, and various articles they associated with dog fighting.
On September 24, 2007, a Hamblen County grand jury indicted the defendants for dog fighting, alleging that on May 28, 2007, the men "knowingly aid[ed] or abett[ed] dogs to fight each other for amusement, sport or gain." Both defendants moved to suppress the evidence found in the basement of Mr. Ewing's residence at 319 West Seventh North Street in Morristown. After a hearing, the trial court denied the motions, and on March 5, 2008, a jury convicted the defendants as charged after a joint trial. After a joint sentencing hearing, the trial court entered the judgments of conviction on March 20, 2008, and each defendant filed a timely motion for new trial. The trial court denied the motions for new trial, and both defendants filed timely notices of appeal. On September 16, 2008, this court consolidated the cases for purposes of appeal pursuant to Tennessee Rule of Appellate Procedure 16(b).
Both defendants moved to suppress evidence found in Mr. Ewing's basement, claiming the discovery of the evidence resulted from an illegal search. Mr. Ewing asserted that he had a legitimate expectation of privacy in his back yard. He argued that no probable cause existed for the officers' entrance into his backyard and that his consent to search the basement was involuntary. Mr. Killion, claiming that he enjoyed an expectation of privacy as an overnight guest in Mr. Ewing's residence, made the same arguments.
At the March 3, 2008 motion hearing, Humane Society Officer Chris Collins testified that on May 28, 2007, he received a call regarding Mr. Ewing's residence, and in response to the call, he met with city police officers at the sheriff's department and then went to the location. Officer Collins drove his "animal control truck," the city officers drove their police cruisers, and Humane Society Officer Richard Hart drove his personal vehicle. Officer Collins stated that he did not carry a firearm on this call. The officers parked the vehicles on the street in front of Mr. Ewing's house, and Officer Collins and Officer Hart stood in the middle of the street and "look[ed] around, listening." Officer Collins stated that he heard dogs barking and that he observed "[a] female running to the back part of the house from the front door [and] coming back to the front door." He testified that the woman at the front door asked him what the officers were doing and that he explained to her that he "had a call about a dog fight going on." During this time, one of the city officers went around the street to the back part of the house and observed several individuals standing outside, and Officer Hart approached the back yard from the side of the house. Officer Collins identified a photograph depicting the city officers' view of the Ewing back yard from the parking lot of an apartment building behind the home.
At that point, Officer Collins heard Officer Hart say, "Restrain your dog," and Officer Collins went to the back yard of the home where he saw a man holding a pit bulldog by its collar. He explained that Officer Hart had drawn his weapon but that he pointed the gun at the pit bulldog and not the man, who was later identified as Mr. Ewing. Officer Collins then saw Mr. Ewing's "taking the dog and putting it back on a chain, and [Officer] Hart['s] putting his gun back into his holster." Officer Collins testified that he, Officer Hart, and the city officers questioned everyone in the back yard for "[m]aybe five minutes." He observed two pit bulldogs in the back yard as well as two trucks and two cars. Officer Collins also noticed a door to a basement and a window that had been "painted out." At that point, "Mr. Ewing, offered this was his property, and I asked him if they [sic] was anything in the basement, and he said no." Officer Collins explained that he wanted to see the basement because of "[t]he suspicion of the window being painted out." Officer Collins testified that Mr. Ewing "freely opened the door himself," and in the basement "there was a blue kennel with a pit bull chewed up sitting there in plain view." Officer Collins maintained that the encounter with Mr. Ewing was "[j]ust a general conversation" and that "[t]here was no force."
On cross-examination, Officer Collins admitted he did not learn the name of the female at the front door and that he took no statement from her. He further stated that the city officers who drove behind the house observed the back yard from a private parking lot rather than a public street. He remembered Officer Hart's saying, "Restrain your dog or I'll put it down." Officer Collins also recalled that the pit bulldogs in the back yard were not injured although they had old scarring. He explained that seeing the dog in the basement was "a sign of cruelty and neglect," so the officers "h[ad] the authority to go in." He said, "Under T.C.A. code, prevention of cruelty to animals, if we see an animal injured we don't have to have a search warrant."
Officer Collins agreed that "everyone came across private property to get to Mr. Ewing's property." He also admitted that, apart from the anonymous phone call reporting dog fighting, nothing else at the property indicated illegal activity. He agreed that the people in the back yard appeared to be 18 to 20 years old, including Darius Ewing, Mr. Ewing's son. He also agreed that he "asked to get into the basement because of speculation."
Officer Hart testified that he received a call from Officer Collins on May 28, 2007, to meet him at the sheriff's department and that he then proceeded to Mr. Ewing's home. He wore street clothing, carried a firearm on his hip, and drove his personal vehicle. Upon arriving at the residence, he stood with Officer Collins in the street listening for "[s]ounds of dogs." Officer Hart testified that he "couldn't see anything from the front of the residence or of any residence right there." He explained that it was dusk and that "[t]here were no lights like a . . . backyard light or anything like that." He testified that they "[e]ventually" heard dogs barking. Officer Hart observed a female and a child standing at the doorway of that residence. He said, At that time, the city officers told Officers Hart and Collins that they were "going to go around" because the barking appeared to come from behind the residence.
The city officers, who had observed the back of Mr. Ewing's residence, radioed Officer Hart, and he then proceeded to the left of the residence, using the alley between the residence and another house to approach the back yard. He testified that he observed five or six individuals in the yard and that he...
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