State v. Vandenburg

Decision Date08 August 2019
Docket NumberNo. M2017-01882-CCA-R3-CD,M2017-01882-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. BRANDON ROBERT VANDENBURG
CourtTennessee Court of Criminal Appeals

Appeal from the Criminal Court for Davidson County

No. 2015-C-1517

Monte Watkins, Judge

A Davidson County jury convicted Brandon Robert Vandenburg, Defendant, of five counts of aggravated rape, two counts of aggravated sexual battery, and one count of unlawful photography. On appeal, Defendant argues the following: (1) the trial court's denial of his motion to dismiss the superseding indictment violated his right to due process and protection from double jeopardy and violated Tennessee Rule of Criminal Procedure 8; (2) prosecution on the superseding indictment created a realistic likelihood of vindictive prosecution; (3) the trial court erred in excluding the testimony of Dr. J. Sidney Alexander; (4) the trial court erred by denying Defendant's request to question potential jurors about recent rape cases in national news and by failing to timely admonish prospective jurors; (5) the trial court erred in denying Defendant's motion to suppress the June 27, 2013 interrogation and evidence obtained based on that interrogation; (6) the trial court erred in excluding Defendant's voicemail on Joseph Quinzio's cell phone; (7) the trial court erred by instructing the jury on the requisite culpability for criminal responsibility and on "presence and companionship" as it relates to criminal responsibility; (8) the State committed prosecutorial misconduct during closing arguments; (9) the evidence was insufficient for a rational juror to have found Defendant guilty beyond a reasonable doubt; (10) Tennessee Code Annotated section 39-13-605 is void for vagueness; (11) the trial court erred in ordering Defendant to serve an excessive sentence; (12) the trial court erred in denying Defendant's motion to recuse; (13) the trial court erred by excluding evidence of the co-defendants' prior bad acts; (14) the trial court erred by denying Defendant's Tennessee Rule of Evidence 412 motion; and (15) the cumulative errors in Defendant's trial warrant a new trial. After a thorough review of the facts and applicable case law, we affirm the trial court's judgments in counts one through four and six through eight. Although not raised by either party, we determine that Defendant's conviction of aggravated rape in count five must be vacated. We modify the conviction in count five to attempted aggravated rape and remand to the trial court for sentencing in count five.1

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part, Vacated in Part and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL and TIMOTHY L. EASTER, JJ., joined.

Randall E. Reagan, Knoxville, Tennessee (on appeal), Troy Bowlin, Morristown, Tennessee, and Albert Perez, Jr., West Covina, California (at trial) for the appellant, Brandon Robert Vandenburg.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Tom Thurman and Jan Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION
I. Factual and Procedural Background

This appeal stems from Defendant's participation in the aggravated rape, aggravated sexual battery, and unlawful photography of the victim, E.L.,2 along with Co-defendants Corey Batey, Jaborian McKenzie, and Brandon Banks. In August 2013, the Davidson County Grand Jury indicted Defendant and his co-defendants on five counts of aggravated rape, two counts of aggravated sexual battery, one count of tampering with evidence, and one count of unlawful photography. Defendant and Co-defendant Batey proceeded to trial in January 2015. The jury found Defendant guilty of four counts ofaggravated rape, one count of attempted aggravated rape, two counts of aggravated sexual battery, one count of tampering with evidence, and one count of unlawful photography. On June 23, 2015, the trial court granted Defendant's motion to declare a mistrial3 because the jury foreperson failed to disclose that he had been named a victim of statutory rape in a prior criminal case. The trial court determined that the jury foreperson's conduct "g[ave] rise to a presumption of bias" and that the foreperson was not "a fair and impartial juror."

On July 7, 2015, the Davidson County Grand Jury issued a second indictment that charged Defendant and his co-defendants with five counts of aggravated rape, two counts of aggravated sexual battery, and one count of unlawful photography. Defendant proceeded to trial in June 2016.

Jury trial

Captain Donnie Harville4 testified that he worked for the Vanderbilt Police Department (VPD) in the Investigation Division. Captain Harville explained that the VPD had "a memorandum of understanding with [the Metro Nashville Police Department] where they investigate certain crimes for the [VPD] when major felonies happen on campus. They usually come in and assist us or they can take lead over the investigation." Captain Harville explained that the VPD began investigating the current offenses because "[t]he Housing Unit was reviewing the video surveillance on the NICE System,5 and it came across some suspicious activity, and they alerted the [VPD] to investigate." He learned of the video on the morning of June 26, 2013. When Captain Harville reviewed the June 23, 2013 surveillance footage from multiple cameras in Gillette Hall, a dormitory for athletes on Vanderbilt's campus, he observed "four males carrying an unconscious female into Gillette Hall."

Captain Harville identified the DVDs that contained the surveillance footage from multiple cameras in Gillette Hall during the time period that the offenses occurred. He testified that the video surveillance footage depicted a vehicle approaching one entranceof the dorm. A person, whom Captain Harville identified as Defendant, exited the vehicle and attempted to enter the dorm by scanning an ID card. The video surveillance footage also depicted Defendant speaking with two individuals, Co-defendants McKenzie and Banks, outside of the dorm. Another individual, whom Captain Harville identified as Co-defendant Batey, approached Defendant. The video then depicted Defendant carrying an unconscious female from the vehicle into the dorm. Video surveillance footage from inside Gillette Hall depicted Defendant carrying the unconscious female, whom Captain Harville identified as E.L, into the dorm with Co-defendants McKenzie, Banks, and Batey. Co-defendant McKenzie pushed the elevator button while Defendant carried E.L. Defendant and Co-defendant Banks entered the elevator with E.L. and rode it to the second floor. Co-defendants Batey and McKenzie later joined Defendant, Co-defendant Banks, and E.L. on the second floor. On cross-examination, Captain Harville agreed that Defendant appeared to struggle to carry E.L. while he waited for the elevator to arrive on the first floor of Gillette Hall.

After Defendant and Co-defendant Banks arrived on the second floor, Defendant picked E.L. up off the elevator floor and placed her on the hallway floor. The video of the second-floor surveillance camera depicted Co-defendant Banks taking a photograph of E.L. on his cell phone while she lay on the hallway floor. Defendant and Co-defendant Banks then picked up E.L. and carried her down the hallway. Surveillance footage then depicted Defendant carrying E.L. into Room 213 at 2:37 a.m. Co-defendants Banks and Batey followed Defendant into the room. Around 3:09 a.m., Defendant left Room 213 with a towel on his head and approached one of the surveillance cameras. Defendant placed the towel on the camera to block its view; by 3:26 a.m., someone had removed the towel. During cross-examination, Captain Harville stated that surveillance footage depicted Defendant experiencing "some type of emotion" around 3:13 a.m.

Around 3:14 a.m., the surveillance video in East Hall dormitory depicted Chris Boyd and Michael Retta exit Mr. Boyd's room; Mr. Boyd had a cell phone in his hand. Dillon van der Wal exited his room and spoke with Mr. Boyd and Mr. Retta. A few minutes later, the surveillance video depicted Mr. Boyd, Mr. Retta, and Mr. van der Wal exiting East Hall around 3:18 a.m. At 3:21 a.m., the surveillance video in Gillette Hall depicted Defendant walking to the main lobby of the second floor and opening the door for Mr. Boyd, Mr. van der Wal, Mr. Retta, and Deandre Woods.

At 4:16 a.m., the surveillance video in East Hall depicted Defendant standing in a hallway speaking with Mr. van der Wal, Austyn Carta-Samuels, and Mr. Boyd. From 4:52 a.m. to 5:14 a.m., E.L. exited Room 213, entered the bathroom, and either returned to Room 213 or walked around the hallway several times. Around 11:50 a.m., E.L., whohad entered Room 214 around 8:00 a.m., left with another female, exited Gillette Hall, and drove off in her vehicle which was parked in front of the dorm.

On cross-examination, Captain Harville testified that he had asked Kevin Colon, an athletic department official, to bring Defendant to the VPD office. Captain Harville then introduced Defendant to Detective Jason Mayo and Sergeant Michael Shreeve. On redirect examination, Captain Harville explained that he met Defendant outside of a VPD administration building, where administrative staff in plain clothes worked.

G.L. Black testified that, in June 2013, he worked at Vanderbilt University as an Associate Dean and Director of Student Conduct and Academic Integrity. Mr. Black explained that his role at Vanderbilt involved "reviewing and resolving student violations of university policy[.]" Mr. Black received regular reports from "different entities on campus" that concerned academic or nonacademic misconduct. Around 4:30 p.m. on June 24, 2013, Mr. Black learned of "some video footage" that pertained to student misconduct. To begin his...

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