State v. Olivera
| Decision Date | 26 July 2019 |
| Docket Number | No. E2017-01871-CCA-R3-CD,E2017-01871-CCA-R3-CD |
| Parties | STATE OF TENNESSEE v. LUIS A. MEZA OLIVERA |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Criminal Court for Washington County
The Defendant, Luis A. Meza Olivera, was convicted by a jury of two counts of aggravated assault, a Class C felony; and three counts of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. §§ 39-13-102, -304. The trial court merged the convictions into one count of aggravated assault and one count of aggravated kidnapping. The trial court then imposed a total effective sentence of twelve years. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred in admitting evidence of three prior incidents of domestic violence involving the Defendant and the victim; (3) the trial court erred in allowing a child witness to testify by closed circuit television; (4) the trial court erred in excluding a video recording taken after the offenses were committed; (5) the trial court abused its discretion by imposing the maximum sentence for each conviction; and (6) a new trial is warranted due to cumulative error.1 Following our review, we affirm the judgments of the trial court.
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Lawrence Scott Shults, Johnson City, Tennessee (on appeal); Donna M. Bolton, Johnson City, Tennessee (at Rule 404(b) hearing); and Jeffery C. Kelly, District Public Defender, and William Carter Donaldson, Assistant District Public Defender (at trial), for the appellant, Luis A. Meza Olivera.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Erin D.McArdle and Justin Bradford Irick, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINIONOn the afternoon of December 27, 2015, deputies from the Washington County Sheriff's Office found the victim, Sherri Swartz, locked in her bedroom, "hogtied," and with a rope tied around her neck. The deputies were dispatched to the victim's home after her five-year-old son, J.S., called 911 and stated that he was locked in the victim's bedroom closet.2 The victim had no memory of what had happened. Nonetheless, the Defendant was quickly identified as a suspect and arrested in Memphis on December 30, 2015.
The State filed a pretrial "Notice of Intent to Use Prior Bad Acts." The State sought to admit evidence of five prior instances of domestic violence involving the Defendant and the victim under Tennessee Rule of Evidence 404(b). The State argued that the instances of domestic violence were "relevant to prove motive[, ]intent to harm[,] and lack of mistake." The trial court then held an evidentiary hearing on the State's request.3
The victim testified that she met the Defendant while she was living in California. The victim described their relationship as "rocky" and stated that the Defendant "had a temper and a drinking issue." The victim explained that "there were . . . times [when the Defendant] would get a little pushy, shovey, [and] things like that." In 2009, the victim became pregnant with J.S. After finding out that she was pregnant, the victim and the Defendant got married.
The victim testified that, while she was pregnant, the Defendant pushed her "down [on to] the corner of the bed" and that she went to the emergency room because she started bleeding vaginally. The victim told the staff at the emergency room that she had fallen and did not report the Defendant. The victim testified that another incident occurred while she was pregnant. The victim explained that the Defendant hit her. Later that day, the victim went to a scheduled doctor's appointment with a black eye. The victim's doctor contacted the police, but the victim told them that it was an accident.
J.S. was born in 2010. The victim testified that in May 2010, the Defendant went into a "rage" when he could not find something in their bedroom. The Defendant began hitting the victim on her head and back with a remote control. The victim testified that she was holding J.S. while the Defendant hit her and that she attempted to shield J.S. from the Defendant's blows. Later in the day, the victim went to a scheduled doctor's appointment. The victim's doctor called the police, and she reported what the Defendant had done. The State introduced photographs of the victim's black eyes, other bruises, and red marks on her back and arm. The Defendant eventually pled guilty to "disturbing the peace," and the State introduced documentation of his conviction.
Another incident occurred in November 2010. The victim testified that the Defendant took a laptop from her and "slide it across the floor." When the victim went to pick it up, the Defendant started yelling at the victim and pushing her. The victim and the Defendant "kind of [got] in a tussle" over J.S. The victim took J.S. to her car. The Defendant tried to prevent the victim from getting in her car, tried to take J.S. from her, and shut the car door on the victim. The victim eventually was able to drive away and reported the incident to the police. The State introduced photographs of bruises on the victim's face and arm, scratches to her arm, and a busted lip. The victim testified that J.S. suffered a bruise to his eye. The Defendant later pled guilty to "domestic violence," and the State introduced documentation of his conviction.
The final incident occurred in March 2011. The victim testified that she and J.S. had moved to Washington County. The Defendant had driven the victim and J.S. from California and was staying with them for a few days before driving back. The victim testified that they were staying at a "farmhouse" owned by her family. The victim and the Defendant were cleaning out the farmhouse. The victim and the Defendant started arguing after the Defendant began burning trash too close to the house. The victim testified that the Defendant was "very agitated" and that "it was getting really, really tense."
The victim testified that she went to the bathroom to get away from the Defendant. After a few minutes, the victim smelled smoke. The victim was unable to open the bathroom door. The victim was eventually able to call her mother who called 911. When firefighters arrived at the farmhouse, they found a rug on fire in front of the bathroom door and the head of an axe wedged underneath the bathroom door to prevent it from opening. The Defendant later pled guilty to assault and attempted arson. The State introduced photographs of the rug and axe along with documentation of the Defendant's convictions. The victim testified that she and the Defendant divorced after this incident.
Sergeant John Light of the Washington County Sheriff's Office testified that he responded to the incident in March 2011. Sergeant Light recalled that the farmhouse smelled of gasoline and that the victim was "panicking." Sergeant Light corroborated thevictim's testimony that the firefighters found a rug burning in front of the bathroom door and an axe head wedged underneath the door that prevented it from opening.
The trial court issued a lengthy written order addressing the State's request. The trial court found that the first two incidents that occurred when the victim was pregnant had not been established by clear and convincing evidence. However, the trial court found that the May 2010, the November 2010, and the March 2011 incidents had been established by clear and convincing evidence. The trial court also found that "identity, motive, common scheme or plan[,] and intent [were] material issues present in this case." The trial court further found that the three prior incidents of domestic violence were "probative of the [D]efendant's hostility toward the victim, malice, or a settled purpose to harm her." Specifically, the trial court stated that the evidence was "highly probative of the settled intent of the Defendant to harm the victim." The trial court concluded that the probative value of the evidence outweighed the danger of unfair prejudice.
On August 3, 2016, the State filed a "Demand for Notice of Alibi." On September 22, 2016, the trial court issued a written order giving the Defendant until October 6, 2016, to provide a notice of alibi if he intended to raise an alibi defense at trial. No notice of alibi was filed.
On November 9, 2016, one week before the Defendant's trial was originally scheduled to begin, the trial court granted the Defendant's motion to allow his original counsel to withdraw. The Public Defender's Office was appointed to represent the Defendant. Defense counsel filed a motion to be relieved of the notice of alibi requirement on February 8, 2017. The trial court held a hearing on the motion on February 13, 2017.
At the hearing, defense counsel stated that he wanted to explore if an alibi defense was possible. Defense counsel mentioned that the investigator for the Defendant's original counsel had "a video where [the Defendant] [was] in a department store at a particular time," but that he had not seen the video recording. The prosecutor responded that original counsel had told her about the video recording, that she had asked original counsel to provide her with it, and that original counsel had never provided her with it. The trial court ruled that the video recording would not be admissible at trial because "it should have been turned over to the [S]tate if it was going to be used a long time ago."
Shortly before trial, the State filed a motion to allow J.S. to testify by...
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