State v. Koffman

Page 309

207 S.W.3d 309

STATE of Tennessee v. Larry Paul KOFFMAN.

Court of Criminal Appeals of Tennessee, at Nashville.

October 25, 2005 Session.

February 23, 2006.

Application for Permission to Appeal Denied by Supreme Court August 28, 2006.

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Patrick G. Frogge, Nashville, Tennessee (on appeal); and Joe R. Johnson, II, Springfield, Tennessee (at trial), for the appellant, Larry Paul Koffman.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Dent Morriss, Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and ROBERT W. WEDEMEYER, JJ., joined.

Following a jury trial, Defendant, Larry Paul Koffman, was convicted of aggravated robbery, a Class B felony, and aggravated assault, a Class C felony. The trial court sentenced Defendant as a Range II, multiple offender, to fifteen years for his aggravated robbery conviction and eight years for his aggravated assault conviction, and ordered Defendant to serve his sentences consecutively. On appeal, Defendant argues (1) that the trial court erred in not granting his motion to suppress his statement to the police; (2) that the evidence is insufficient to support his convictions; and (3) that the trial court erred in imposing consecutive sentences. After a thorough review of the record, we find that the trial court erred in admitting Defendant's statement into evidence, but conclude, based upon the facts presented in this case, that such error was harmless beyond a reasonable doubt. We therefore affirm the judgments of the trial court.

I. Background

Wendy Peden, an employee of the Keystop store in White House, testified that Defendant entered the store on September 22, 2002, shortly after 2:00 p.m. Ms. Peden stated that Defendant approached the cash register with a quart of Havoline oil. Ms. Peden rang up the sale, and Defendant handed her a five-dollar bill. When Ms. Peden opened the cash register to make change, Defendant began grabbing money out of the cash drawer. Ms. Peden saw a gun in Defendant's right hand. Defendant started to leave, then turned and pointed his gun at Ms. Peden. Defendant warned Ms. Peden not to come outside and left the premises in a red car.

Ms. Peden said that she tried to avoid making eye contact with Defendant during the robbery because she was terrified. Ms. Peden could not positively identify Defendant as the robber, but she said that the robber was "dirty" as if he had been working on a car.

Tracy Harney was visiting Ms. Peden in the store. Ms. Peden left their conversation when Defendant approached the sales counter. Ms. Harney said that she heard the cash drawer rattle when Defendant picked it up. She started to walk toward the cash register and saw Defendant take the money from the cash drawer and point a gun at Ms. Peden. Ms. Harney said that she walked away from the sales counter at that point so that Defendant would not see her. Ms. Harney could not describe Defendant's facial features, but she said that his clothes were dirty, and he wore a pair of blue jeans, a tee-shirt and a baseball cap. Ms. Harney said that Defendant appeared nervous.

Ms. Harney said that Defendant was in the store about five minutes. Another customer, later identified as Gary Frakes, entered the store during the robbery. Mr. Frakes brought his drinks to the counter, and Ms. Peden told him she had just been robbed. Ms. Harney said Mr. Frakes left the store to get the license plate number of Defendant's car.

Mr. Frakes testified that he was a regular customer at the Keystop, and he stopped at the store on the afternoon of the robbery to buy his children something to drink. The children, aged seventeen, thirteen, and ten, remained in the car while Mr. Frakes went inside. Mr. Frakes said that when he brought his purchases to the sales counter, Ms. Peden told him she had been robbed. Mr. Frakes left the store to record the license plate number of Defendant's car.

Mr. Frakes said that Defendant drove away in a red car, and he decided to follow Defendant's car in his vehicle. Defendant tuned left onto Highway 76 and then onto the ramp leading to Interstate 65. Mr. Frakes said that when the vehicles reached the top of the ramp, Defendant fired five or six shots at Mr. Frakes' car. Mr. Frakes said the vehicles were traveling about forty-five miles per hour at this point.

The two vehicles entered the interstate, and Mr. Frakes stayed three or four car lengths behind Defendant. Mr. Frakes retrieved his .45 Taurus automatic pistol from the driver's side floorboard, and asked his daughter to hand him the gun's magazine which was in the glove compartment. He also told his daughter to call 911. After he loaded his weapon, Mr. Frakes said that he fired two shots at Defendant's vehicle. Defendant ducked down and swerved toward the median. Mr. Frakes said that he tried to keep the other traffic on the interstate from passing his vehicle by waving his hand out of his car window.

After Mr. Frakes fired his second shot, Defendant pulled his vehicle over to the right side of the interstate and stopped. Mr. Frakes pulled in behind Defendant and also stopped. Mr. Frakes said that Defendant exited his vehicle and began running towards him. Defendant discharged his gun twice at Mr. Frakes' vehicle, then tripped and dropped his gun. The magazine clip fell out of the gun, and Defendant ran into the woods.

Mr. Frakes said that he reported the incident to the 911 operator. Mr. Frakes explained that he returned Defendant's fire because he was afraid that he or his children might be injured. Mr. Frakes said that he never lost sight of Defendant between the time Defendant left the Keystop and when he ran into the woods. Mr. Frakes identified Defendant in court as the perpetrator of the offenses.

On cross-examination, Mr. Frakes said that he did not recollect telling the investigating officers that he was the first driver to slow down and pull off the interstate, and that Defendant pulled over after Mr. Frakes. Mr. Frakes also did not remember describing Defendant's hair as blonde, but he did recollect that he said Defendant was approximately six feet, two inches tall. Mr. Frakes said that when he entered the Keystop, he saw the back of Defendant's head as Defendant stood at the sales counter.

Officer Evan Bates, with the White House Police Department, testified that he received a report around 8:00 p.m. on September 22, 2002, that a suspicious male was walking down Union Road in the area where the Keystop robbery had occurred. Officer Bates spotted Defendant in the parking lot of an Amoco Station. He exited his patrol car and asked Defendant if he could talk to him. Defendant responded, "no," and began to flee. Officer Jonathan Dillard got out of the passenger side of the patrol car and chased Defendant. Defendant threw down a shirt and a gun, and then stopped running in response to the officers' verbal commands. Defendant told Officer Bates, "[I]t's me, I know I screwed up, I'm Larry Koffman, you got me." Officer Bates said that Defendant told him that Defendant would have shot himself if he had not lost the magazine to his gun. Officer Bates said that Defendant's clothes were wet, either from sweat or moisture from the woods.

On redirect examination, Officer Bates said that the report described the suspect as approximately six feet tall, with a burr haircut or a shaved head. Officer Bates said that Defendant was apprehended approximately two and one-half miles from his vehicle, and that there were woods along that stretch of the interstate.

Sergeant Matthew Marshall examined Defendant's vehicle. He found a magazine clip from a .9 mm gun on the ground and a quart of Havoline oil inside the car. Sergeant Marshall said that the investigating officers could not obtain any identifiable fingerprints from the crime scene.

Sergeant Marshall then joined Officer Bates at the parking lot where Defendant had been apprehended. He described Defendant as nervous and agitated, but stated that Defendant was coherent and appeared to be aware of what was happening. When Sergeant Marshall, Officer Bates and Defendant arrived at the police station, Defendant told Sergeant Marshall that he was scared he would be mistreated, and Sergeant Marshall tried to reassure Defendant.

Sergeant Marshall read Defendant's Miranda rights to him and began to tape his statement. Defendant accurately described Ms. Peden and Ms. Harney. He said he entered the Keystop store and got a quart of motor oil from the shelf. Defendant said that he handed a five-dollar bill to Ms. Peden. Defendant said that when Ms. Peden opened the cash register, he told her to give him the money. Defendant said he "just raised his shirt and kind of took [the gun] out," but he said that he did not believe that he pointed the gun at Ms. Peden. Defendant identified the red car found on the interstate as his and executed a written consent form for the vehicle to be searched.

Defendant said in his statement that after he drove away from store, he saw in his rearview mirror that another car was following him. Defendant said that he assumed that this person was an off-duty police officer, because the man stuck his head out of his car window and fired at Defendant's vehicle. Defendant said he fired his weapon about three times in response, but he did not hit the man's vehicle. Defendant stated that his car "just blew up," and he jumped out while the car was still moving. The magazine clip fell out of his gun, and he ran into the woods.

On cross-examination, Sergeant Marshall said that Defendant began talking as soon as Sergeant Marshall read his Miranda rights to him. Sergeant Marshall said that he did not want to interrupt him, so Defendant's signature on...