State v. Whittenburg

• Docket Number: E2022-01342-CCA-R3-CD
• Decision Date: 27 December 2023
• Parties: STATE OF TENNESSEE v. ROBERT J. WHITTENBURG
• Court: Tennessee Court of Criminal Appeals

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STATE OF TENNESSEE
v.
ROBERT J. WHITTENBURG

No. E2022-01342-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Knoxville

December 27, 2023

Session October 24, 2023

Appeal from the Circuit Court for Bledsoe County No. 18-CR-31 Thomas W. Graham, Judge

A Franklin County jury^[1] convicted Robert J. Whittenburg, Defendant, of two counts of first degree premeditated murder. After a sentencing hearing, the trial court imposed two consecutive life sentences. On appeal, Defendant argues: (1) the State did not present sufficient evidence of premeditation; (2) the trial court improperly denied Defendant's request for a special jury instruction on premeditation; (3) the trial court improperly addressed concerns about irregularities during jury deliberations; and (4) the trial court impaired the jury when it briefly prohibited smoke breaks and then changed its mind. After review, we affirm the judgments of the trial court but remand the case for resolution of procedural issues related to the change of venue and entry of revised judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed; Case Remanded

Samuel F. Hudson, Dunlap, Tennessee, for the appellant, Robert J. Whittenburg.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas (at oral argument) and Jonathan H. Wardle (on brief), Senior Assistant Attorneys General; J. Michael Taylor, District Attorney General; and David Shinn and Steven Strain, Assistant District Attorneys General, for the appellee, State of Tennessee.

Matthew J. Wilson, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Tom Greenholtz, JJ., joined.

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OPINION

MATTHEW J. WILSON, JUDGE

I. Background and Procedural History

On November 30, 2017, the victims, Dedra Lawrence and her mother, Deanna Lawrence,^[2] were discovered by Deanna's boyfriend, Jeffrey Seals, at Defendant's house in Bledsoe County. Mr. Seals also found Defendant lying in his bed, covered in blood, and appearing to be dead. After Mr. Seals called 911, responding police officers discovered a gruesome scene. Both women were dead, and their bludgeoned bodies were covered with multiple wounds, including "chop wounds."^[3] On top of Dedra's body, officers found a two-page note that read, "I loved her [so] much," and was signed "Joe." When officers checked on Defendant, they discovered he was alive and taking shallow breaths. Officers had Defendant transported to the hospital before taking him into custody. The Bledsoe County Grand Jury indicted Defendant on two charges of first degree premeditated murder.

Before trial, Defendant moved for a change of venue, which the trial court granted. In its order granting the change of venue, the trial court wrote, "The venue in this matter shall be moved to Franklin County, [Tennessee] for the trial to be conducted in Franklin County with a jury comprised of people from Franklin County." The trial was held in Franklin County with a jury comprised of Franklin County citizens, but the Bledsoe County Circuit Court Clerk did not copy and transmit the case file to Franklin County, as required by Tennessee Rule of Criminal Procedure 21(e)(1). All trial court orders following the trial court's grant of change of venue were filed by the Bledsoe County Circuit Court, and the judgments were filed with the Bledsoe County Circuit Court Clerk. For the reasons below, we address this issue even though neither party addresses this oversight on appeal.

We observe that the Tennessee Supreme Court has long held that when a defendant seeks and is granted a change of venue, the defendant waives his rights as to venue and "vicinage," or the place from which jurors are summoned. See State v. Nichols, 877 S.W.2d 722, 728 (Tenn. 1994) (citing Tenn. Const. art. I, § 9). Similarly, we conclude that the grant of a change of venue waives a defendant's potential procedural or jurisdictional challenges based on a trial court's failure to follow the procedures set forth in Rule 21(e). Accordingly, this court will consider Defendant's appeal on its merits. However, we remand this case to the trial court for compliance with Tennessee Rule of Criminal

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Procedure 21(e). The Bledsoe County Circuit Court shall transfer the trial court case file to the Franklin County Circuit Court, and the Franklin County Circuit Court shall issue revised judgments reflecting it as the trial court of record. However, the Franklin County Circuit Court need not file a duplicate copy of the record with the Appellate Court Clerk.

II. Trial

Jeffrey Seals testified for the State and explained that at the time of the victims' deaths, he lived with Defendant and both victims. Mr. Seals explained that Defendant had lived in the home for a few months, and Defendant appeared to be "very much in love with Dedra." Mr. Seals also explained that Dedra and Defendant argued a lot, and on more than one occasion, Defendant said "Jeff, I'm going to kill her."

On November 30, 2017, Mr. Seals arrived home around 7:00 p.m. after being out of town for work. The last time he spoke with Deanna was the night of November 29, and despite his efforts, he was unable to reach Deanna, Dedra, or Defendant on November 30, which he found unusual. Mr. Seals tried to open the door to his home, but it was locked and he did not have his key. He knocked on the door for an hour before walking to the back of the house to knock on Dedra and Defendant's bedroom window. Mr. Seals broke a window, and after entering the house, he saw Defendant lying on a mattress. Mr. Seals recounted his encounter with Defendant:

His face was blue and I shook his legs trying to-and called his name trying to wake him up. When I shook his legs, his face was blue and I realized something was terribly wrong when I shook him, because he's [sic] head was bobbling and the color of his skin and then I saw . . . the bloody rags all along the edge of the bed

Mr. Seals went to his and Deanna's bedroom and found nothing amiss, so he walked to the kitchen. There he stumbled upon Dedra's body. Mr. Seals stated, "I knew she was gone. I knew she was [lying] on the floor and she was gone." Mr. Seals tried to leave the house from the kitchen door:

I had to move [Dedra's] leg to get out, because it was blocking the door where I couldn't open it, and ran out the door and when I got down to the bottom of the steps of the porch I realized that Deanna was probably in there[] too and I turned around and ran back and I ran in the living room and turned the light on and she was lying there in the floor also, in the living room floor.

Mr. Seals "panicked" and immediately ran out of the house to call 911.

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Mr. Seals was shown a picture of Defendant's fire axe, which was later found in Defendant's bedroom. Mr. Seals identified the axe as Defendant's, and said Defendant normally kept the axe in a corner of the kitchen.

Officer Ricky Hodge with the Pikeville Police Department was the first police officer to arrive at the house on November 30, 2017. Officer Hodge described Mr. Seals as frantic as he ran across the yard screaming, "they're all dead[!]" Officer Hodge and another officer entered the house, and because there was so much blood on the floor, the officers had to hold on to each other to keep from sliding. Officer Hodge found a woman's body in the kitchen and another woman's body in the living room. As they continued to clear the house, they found Defendant on a bed, appearing to be dead. Officer Hodge then discovered that "[Defendant] was taking very shallow breaths." After Emergency Medical Services took Defendant, Officer Hodge began "setting up a perimeter and crime scene tape . . . so nobody else could come in, and got in contact with [his] chief." After agents with the Tennessee Bureau of Investigation (TBI) arrived, Officer Hodge turned the investigation over to them.

Special Agent Leo Andy was one of the TBI criminal investigators who collected evidence at the crime scene. He testified that while he was in Defendant's kitchen, he collected samples of blood from the wall, the sink, the counter, and a blue glove. He also identified blood on the wall of the living room and collected samples from the coffee table and the carpet. Agent Andy identified a photo of a bag filled with "medical supplies" including a rubber glove "consistent with the rubber gloves" found in the kitchen. He stated that when he turned Deanna's body over, he found "loose hair on her body." He then identified a knife and box cutter that were found on a shelf in Defendant's bedroom where the axe was also found.^[4] The agent testified that what appeared to be hairs were also found on the axe. He also identified a photograph of a pair of jeans with blood on them that was found in Defendant's bedroom. Agent Andy testified that he found no other weapons near the victims' bodies, nor did he find an ashtray near Dedra.

Special Agent Jennifer Spivy, a TBI forensic scientist in the latent print unit, examined the two-page note from the residence for the presence of fingerprints. Agent Spivy did not find any fingerprints on the note, but she explained that was not unusual:

[O]ne, the person could be wearing gloves. There are environmental factors that come into play. The item itself might not lend itself well to laying down a latent print. There could be too much handling, too little handling.

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Conditions of skin. [There are] just many different reasons why fingerprints might not be left behind.

Agent Spivy also examined the fire axe taken from the scene and found only "a few ridges with no details, so [she] could not do any type of comparison with those." Agent Spivy explained she needed "a certain . . . quality of those latents . . . to have enough information . . . in order to do a comparison," but here "[t]here were only a few ridges. There was no detail in any of those...