State v. Smith

436 S.W.3d 751

STATE of Tennessee

v.Glover P. SMITH.

No. M2011–00440–SC–R11–CD.

Supreme Court of Tennessee, at Nashville.

Oct. 1, 2013 Session Heard at Murfreesboro ¹.

June 19, 2014.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Jeffrey D. Zenter, Assistant Attorney General; William Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant District Attorney General, for the appellee, State of Tennessee.

Jonathan L. Miley, Nashville, Tennessee, for the appellant, Glover P. Smith.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., and CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

JANICE M. HOLDER, J.

The defendant was indicted on two counts of fabricating evidence and on six counts of making a false report arising out of the disappearance of his wife. A jury convicted the defendant on all counts, and the trial court imposed a sentence of one year in the county jail followed by six years on probation. After a hearing on the defendant's motion for new trial, the trial court affirmed the convictions for making a false report but dismissed the convictions for fabricating evidence after concluding that no investigation was “pending” when the defendant fabricated evidence. Both the State and the defendant appealed. The Court of Criminal Appeals reinstated the defendant's convictions for fabricating evidence, dismissed as multiplicitous two convictions for making a false report, and affirmed the remaining convictions and sentences. We granted the defendant permission to appeal. Although we affirm the Court of Criminal Appeals' reinstatement of the defendant's convictions for fabricating evidence, we conclude that two of the defendant's convictions for making a false report should be dismissed because the evidence is insufficient to support these convictions. We also conclude that three of the defendant's convictions for making a false report are multiplicitous and therefore dismiss two of those convictions. We affirm the Court of Criminal Appeals in all other respects.

I. Facts and Procedural History

In March 2009, the Rutherford County Grand Jury indicted Glover P. Smith on one count of fabricating evidence and four counts of making a false report. In October 2009, a superseding indictment charged Mr. Smith with two counts of fabricating evidence and six counts of making a false report. These charges resulted from the police investigation into Mr. Smith's December 2007 report to the Murfreesboro Police Department that his wife was missing. During a three-day jury trial in April 2010, the following facts were revealed.

At approximately 6:00 p.m. on December 6, 2007, John Flynt, a dispatcher ² at the Murfreesboro Police Department, received a phone call on the non-emergency line from an individual who identified himself as Palmer Smith. The caller reported that his wife had been missing for a few hours, was diabetic, and likely needed food and insulin. After Mr. Flynt verified that Mrs. Smith had not been admitted to the local emergency room, he submitted a report to radio dispatch, which broadcasts the information to law enforcement officers. In his report, Mr. Flynt provided Mrs. Smith's name, age, description, vehicle description, and the last time that the caller had spoken with her. Based on Mrs. Smith's medical condition, Mr. Flynt considered the report to be an emergency.

Officer Bobby Edwards

At 6:03 p.m. on December 6, 2007, Officer Bobby Edwards of the Murfreesboro Police Department received the radio dispatch and arrived at the Smith residence at approximately 6:14 p.m. Mr. Smith told Officer Edwards that his diabetic wife left their home at 1:30 p.m. to do some Christmas shopping and that she normally returned home before dark. He described what Mrs. Smith was wearing and stated that she was driving a champagne-colored, 2000 Lincoln Navigator. Mr. Smith told Officer Edwards that his wife had approximately $600 in cash and that she may have gone to the Walmart on Rutherford Boulevard to avoid the holiday shopping crowd and traffic. After Officer Edwards completed his written report, Mr. Smith reviewed the information and signed the report. ³

Officer Edwards subsequently provided the information to radio dispatch and put out a BOLO (“be on the lookout”) throughout the city. Officer Edwards also contacted Officer Dave Norton, who was assigned to patrol the area that included Walmart, and asked him to look for Mrs. Smith's vehicle in the parking lot. Officer Norton reported that he did not see the vehicle.

Captain Chris Guthrie

On the morning of December 7, 2007, Captain Chris Guthrie of the Murfreesboro Police Department learned of Mrs. Smith's disappearance. He traveled to the Walmart parking lot where he saw the Lincoln Navigator parked between two Budget rental trucks. Captain Guthrie approached the vehicle and found that it was unlocked and that the keys were in the ignition. He observed a purse in the front seat and a makeup bag near the center console. The vehicle was towed to the police department for processing, and the police department's forensic examination of the vehicle revealed no blood or fingerprints.

On the afternoon of December 7, 2007, Captain Guthrie and Major James Gage went to Mr. Smith's home to discuss his wife's disappearance. Mr. Smith told the officers that he had company and did not have time to speak with them. Captain Guthrie said that as he and Major Gage were leaving, Mr. Smith “got kind of irate” and asked, “Have you found my wife yet?” Captain Guthrie told Mr. Smith that they would return at a later time.

When the officers returned to the Smith home, Mr. Smith told them that his wife went shopping around 1:30 p.m. and had $300 to $500 with her. With Mr. Smith's consent, Captain Guthrie looked in Mr. Smith's garage where he saw what he described as a “greenish looking, teal colored” beachcomber or old-time bicycle. Mr. Smith told them he understood he would “probably be a suspect in this.”

On the morning of December 8, 2007, Captain Guthrie viewed the video recording from the Walmart parking lot cameras that had been provided by Ethan Highers, an asset protection associate for the Murfreesboro Walmart. The video recording included the Walmart parking lot activity on December 6, 2007. According to Captain Guthrie, the video showed a near collision between Mrs. Smith's Lincoln Navigator and another vehicle at approximately 2:24 p.m. and showed the Lincoln Navigator pulling into the parking space in which it was eventually found.

Captain Guthrie said that the video recording revealed that someone rode away on a bicycle similar in style to the bicycle he had observed in Mr. Smith's garage. Captain Guthrie described the bicycle rider as “an older person” and said that Mr. Smith “came to mind” as he viewed the video recording.

Mr. Smith came to the police department on the morning of December 8, 2007, to be interviewed, and Captain Guthrie showed the Walmart video recording to Mr. Smith. When asked if he recognized the person riding the bicycle, Mr. Smith responded that he did not. Captain Guthrie finished the interview and obtained consent to search Mr. Smith's home. Later that same day, Captain Guthrie conducted a search of the Smith home. Captain Guthrie took the bicycle from the garage because it was similar to the bicycle seen in the Walmart video. He also collected several dark-colored baseball caps and a tan jacket, which he described as similar to the clothing worn by the person riding the bicycle.

Captain Guthrie acknowledged that he could not determine the exact color of the bicycle in the video recording, which he had described as teal or green in his report, or whether it was the bicycle found in Mr. Smith's garage. Similarly, Captain Guthrie could not confirm if one of the baseball caps or the tan jacket taken from Mr. Smith's home during the search was worn by the person riding the bicycle in the video. He added that the Smith home was approximately six and one-half miles from the Walmart on Rutherford Boulevard and that the person riding the bicycle did not appear to be a woman. Captain Guthrie testified that an eyewitness saw the appellant riding the bicycle.

Detective Michael Taylor

On the evening of December 6, 2007, Detective Michael Taylor of the Murfreesboro Police Department was also informed of Mrs. Smith's disappearance and spoke with Mr. Smith by telephone about Mrs. Smith's failure to return home. Detective Taylor determined that Mrs. Smith's cell phone was still turned on but no one answered when it was called. Detective Taylor obtained information from the cell-phone provider about the location of the cell tower in contact with Mrs. Smith's cell phone.

At about 6:00 a.m. on December 7, 2007, Detective Taylor learned that Mrs. Smith's Lincoln Navigator had been located in the Walmart parking lot. He met with Captain Guthrie at that location. Detective Taylor said that the vehicle was parked in a somewhat obscure location between two Budget rental trucks and that he did not believe a person going shopping would have parked there.

Detective Taylor watched the video recording of the parking lot along with other officers. He was present when Mr. Smith and family members came to the police station to watch the video recording on December 8, 2007. Mr. Smith identified Mrs. Smith's vehicle but could not identify the driver of the vehicle or the person riding the bicycle. Detective Taylor accompanied Captain Guthrie to the Smith home that evening to conduct the search.

On December 10, 2007, Detective Taylor interviewed Leah Talbert, who was identified as the owner of the vehicle that almost collided with the Lincoln Navigator in the parking lot. Ms. Talbert was shopping with her fiancé at the Walmart on Rutherford Boulevard on December 6, 2007. Ms. Talbert told Detective Taylor that her fiancé was driving her vehicle and...