State v. Jenkins

STATE OF TENNESSEE v. JAMES ALLEN JENKINS

No. E2017-01983-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

Assigned on Briefs June 26, 2018

November 20, 2018

Appeal from the Criminal Court for Sullivan County

No. S63886

James F. Goodwin, Judge

The Defendant-Appellant, James Allen Jenkins, was convicted by a Sullivan County jury of aggravated robbery, aggravated assault, unlawful possession of a weapon, and theft of property $1,000 or less, for which he received an effective sentence of eleven years. See T.C.A. §§ 39-13-402, -102; 39-14-103; 39-17-1307(c)(1). On appeal, the Defendant argues (1) the evidence was insufficient to support each of his convictions; (2) the trial court erred in allowing the State to cross-examine the Defendant regarding his prior convictions because the parties had previously entered a stipulation as to his status as a convicted felon; (3) the trial court erroneously permitted the testimony of a forensic expert regarding a Combined DNA Index System (CODIS) "hit" as inadmissible hearsay; and (4) whether his aggravated robbery and theft convictions violate principles of double jeopardy.¹ Upon our review, we merge the Defendant's theft conviction and remand for entry of amended judgments reflecting merger of the theft conviction into the Defendant's aggravated robbery conviction. In all other respects, the judgments of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed; Remanded for Entry of Amended Judgments

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., joined. ROBERT H. MONTGOMERY, JR., J., filed an opinion concurring in part and dissenting in part.

Kenneth E. Hill, Kingsport, Tennessee, for the Defendant-Appellant, James Allen Jenkins.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Barry P. Staubus, District Attorney General; and Emily M. Smith and

Teresa A. Nelson, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

On the evening of January 13, 2014, two Taco Bell employees were robbed at gunpoint and approximately $206 was taken from the cash register. The employees reported that the perpetrator discarded a cigarette butt during the robbery, upon which the Tennessee Bureau of Investigation (TBI) subsequently generated a complete Deoxyribonucleic Acid (DNA) profile. No suspect was immediately developed after the crime. However, the DNA profile from the cigarette butt resulted in a CODIS "hit" to the Defendant's DNA profile, which had been uploaded in CODIS from his prior convictions. After the TBI independently confirmed the hit, the Defendant was arrested for the instant offenses. Following the Defendant's arrest, one of the victims also identified the Defendant as the perpetrator of the offense. Based on these acts, on February 14, 2017, the Sullivan County Grand Jury indicted the Defendant for two counts of aggravated robbery, theft of property $1,000 or less, and convicted felon in possession of a firearm.² The following proof was adduced at trial.

The trial began by the reading of the parties' stipulation, exhibit 1, which provided (1) that the Defendant was a convicted felon, and (2) that the Defendant was convicted of a felony prior to the instant offense. Angela Worsham, an employee of Taco Bell, was working on the night of the offense when the Defendant entered the store.³ She said he came in around 10:00 that evening, was wearing a dark "hoodie [that] was pulled up over [his] head," but his face could be seen clearly. Her attention was drawn to the Defendant because he was smoking, and Taco Bell is a non-smoking facility. She told Christopher Goldsberry, her manager, that he was smoking. When Goldsberry told him to put it out, the Defendant took it out of his mouth, put it on the ground, and smashed it with his foot. Goldsberry and Worsham looked at each other in "surprise" because the Defendant disposed of the cigarette inside the restaurant in that manner.

When Worsham and Goldsberry turned back towards the Defendant, he was pointing "an older gun like a revolver" at Goldsberry. Worsham explained that Goldsberry was standing behind the cash register, she was standing next to Goldsberry,and another employee, Zak Thornsberry, was in the back. She said the Defendant then demanded that Goldsberry give him the money from the cash register and "not to push any buttons." Goldsberry gave the Defendant approximately $206, and the Defendant left the restaurant. Goldsberry then called the Bristol Police Department. Once the police arrived, Worsham gave them a statement and showed them the Defendant's unmoved cigarette butt. Several photographs of the Taco Bell were admitted into evidence including a photograph showing a black smudge where the cigarette had been "mushed" into the recently mopped floor.

Worsham confirmed that the restaurant did not have surveillance cameras and that the Defendant did not speak to her. Although the Defendant never pointed the gun directly at Worsham, it was pointed in her direction. Worsham was certain that it was a "real gun" even though she could not distinguish the gun from "a replica or a toy gun." She did not recall the Defendant cocking the hammer of the gun or seeing the gun cylinder rotate. She confirmed that the Defendant pushed the door to exit, that he was not wearing gloves, and that she would have given the Defendant the money from the cash register had Goldsberry not done so.

Worsham identified the Defendant as the perpetrator of the offense at trial and at a preliminary hearing. Pressed on cross-examination regarding identification of the perpetrator, Worsham said,

"[M]y eyes were trained on the man with the gun and I knew what he was doing and could see out of the corner of my eye what he was doing. I was in direct sight of the man."

On redirect examination, Worsham confirmed that she had been subpoenaed to court prior to trial to testify at a hearing in this case. Worsham said while she was sitting outside the courtroom with several other people present, she "knew exactly who it was when [the Defendant] walked in." On re-cross examination, pressed again regarding her identification at the preliminary hearing, Worsham testified that "I knew who he was before I even went into the courtroom. When a gun is pointed at you, that's a face you'll never forget."

Christopher Goldsberry testified consistently with Worsham's recollection of events. In addition, Goldsberry testified that he could not remember the perpetrator's face but described him as a "scruffy looking" white man in his forties, wearing a "dark hoodie" and work boots. He described the gun as "a revolver[,] an older style gun, maybe a 38[,] an old western type gun." Goldsberry explained that the perpetrator pointed the gun at him the entire time he opened the cash register and handed the perpetrator the money. Goldsberry was unable to identify the Defendant as theperpetrator and explained that his "attention was [on] the gun and my life and my kids and wife." Goldsberry said he believed the gun was real but was unsure whether there were bullets in the gun and did not see the gun cylinder rotate or hear the perpetrator cock the gun.

Lieutenant Justin Branson of the Bristol Police Department testified that he responded to the Taco Bell robbery and obtained statements from Worsham and Goldsberry. He said Goldsberry directed him to the Defendant's cigarette butt located on the floor in front of the cash register. Lieutenant Branson collected the cigarette butt as evidence, sealed it in an envelope, placed his initials on the envelope, and gave it to Sergeant Jason McCreedy. He identified the ash mark in one of the photographs where the cigarette was put out and confirmed that he used gloves to collect the cigarette butt. On cross-examination, Lieutenant Branson explained that none of the previously admitted photographs were of the cigarette butt as it was found because "it's a small item in a store with a lot of things going on and [he] didn't want to get it contaminated, damaged, somebody step on it so that's why [he] collected it at that point just to preserve the actual cigarette butt." He further testified that he found a footprint outside the restaurant, that he or another officer photographed the footprint, and agreed that it looked more like a tennis shoe than a work boot. He also confirmed that there was no paperwork to document that he gave the cigarette butt to Sergeant McCreedy.

Sergeant Jason McCreedy of the Bristol Police Department testified that he responded to the Taco Bell robbery and retrieved the cigarette butt sealed in an initialed envelope from Lieutenant Branson. He then secured it in his police vehicle, processed the rest of the scene, and put the evidence into the evidence locker at the police station. Sergeant McCreedy testified that he photographed the scene, dusted for fingerprints on the door the Defendant entered and exited, and obtained written statements from the victims at the police station. He said there was no identification match made from the fingerprints on the restaurant door. He sent the cigarette butt to the TBI for DNA analysis. He later received a phone call from TBI Agent Turbyville, who confirmed a "possible match" to the name James Jenkins. In following up on this information, Sergeant McCreedy located the Defendant at the Edgemont Towers Apartments where the Defendant was living with his wife, Barbara Orr. Sergeant McCreedy explained that the Edgemont Towers Apartments were located "approximately 1.4 miles driving distance" from the Taco Bell. He drove the distance in 3 minutes and 54 seconds.

The Defendant came to the police station and voluntarily provided a DNA sample via buccal swab. Sergeant McCreedy sent the Defendant's DNA sample to the TBI and the analysis positively matched the DNA on the cigarette butt. Sergeant McCreedy also...