IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 4, 2013

STATE OF TENNESSEE v. CARLOS SMITH

Appeal from the Criminal Court for Shelby County

No. 10-02597 James C. Beasley, Jr., Judge

No. W2012-01931-CCA-R3-CD - Filed August 29, 2013

The defendant, Carlos Smith, appeals his Shelby County Criminal Court jury convictions of

two counts of attempted second degree murder, two counts of aggravated assault, and one

count each of aggravated robbery, especially aggravated burglary, employing a firearm

during a dangerous offense, and being a convicted felon in possession of a handgun, claiming

that the trial court erred by denying his motion to sever offenses and that the State violated

the tenets of Brady v. Maryland, 373 U.S. 83 (1963). Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and JEFFREY S. BIVINS, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Carlos Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Pamela Fleming and Jose Leon,

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

OPINION

The facts of this case are largely undisputed. Late in the evening of November

2, 2009, the defendant, his girlfriend, Kelsie Brunner, and his friend, Carl Hall, decided to

rob Reginald Milam. The defendant, Ms. Brunner, and Mr. Hall proceeded to a local WalMart, where Ms. Brunner purchased two ski masks, a pair of gloves and a set of bolt cutters.

Ms. Brunner then drove the men to Mr. Milam’s residence. The defendant and Mr. Hall

exited the vehicle, wearing the ski masks rolled up on their heads to resemble caps.

The defendant and Mr. Hall accosted George McColley, Jr, and Richard
Hardin, Mr. Milam’s brother-in-law, as the two gentlemen were returning to Mr. Milam’s

residence, where they resided. The defendant and Mr. Hall, both of whom were armed and

wearing ski masks, forced Mr. McColley and Mr. Hardin into the residence at gunpoint,

demanding to see Mr. Milam. In a back bedroom of the residence, the gunmen encountered

Mr. Milam, his wife, Lillian Hardin, and two of the couple’s grandchildren. The defendant

held them all, including Mr. McColley and Mr. Hardin, at gunpoint and demanded money.

Renell Hardin, Mr. Milam’s and Mrs. Hardin’s adult daughter, heard the commotion and left

her bedroom. When the defendant and Mr. Hall noticed her, they forced her into the back

bedroom at gunpoint. At some point during the fracas, a struggle ensued, and the defendant

and Mr. Hall shot both Mr. Hardin and Mr. McColley. Mr. McColley also managed to stab

Mr. Hall in the back of the neck. The defendant and Mr. Hall then fled the scene with

approximately $300 to $400 in cash, and they returned to Ms. Brunner’s vehicle. The

defendant told Ms. Brunner that “the people in the house weren’t compliant, that they got

into a physical altercation and at that point [the defendant] had to shoot them.”

On April 15, 2010, the Shelby County grand jury issued an 11-count indictment

against the defendant, Mr. Hall, and Ms. Brunner, stemming from these criminal offenses.

The defendant was charged with two counts of attempted second degree murder in the

shootings of Mr. Hardin and Mr. McColley, and two counts of aggravated assault committed

against Mrs. Hardin and her daughter, Renell Hardin. In addition, the defendant was charged

with the aggravated robbery of Mr. Milam, the especially aggravated burglary of Mr.

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Hardin’s residence, employing a firearm during the commission of a dangerous felony, and

being a felon in the possession of a handgun.

The trial court conducted a jury trial in January 2012. Mr. McColley, Mr.

Hardin, Mrs. Hardin, Ms. Renell Hardin, and Lajettie Pegues, one of Mr. Milam’s and Mrs.

Hardin’s daughters, all provided similar testimony about the events of November 2-3, 2009.

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Ms. Brunner testified that she had been charged with facilitation of especially aggravated

robbery for her role in the offenses and confirmed that she had been convicted of the felony

of reckless aggravated assault in 2008. Ms. Brunner denied that she had been offered a deal

in exchange for her testimony against the defendant. Christina Lane with the Shelby County

Criminal Court Clerk’s Office testified that the defendant was charged with aggravated

robbery in July 2000 and that he was ultimately convicted of that crime. Immediately

following Ms. Lane’s testimony, the trial court instructed the jury as follows:

The defendant was originally charged, in Count 3 of the Indictment, with the especially aggravated 1

robbery of Mr. Milam. The Count was amended by consent to aggravated robbery on April 21, 2011.

Mr. Milam passed away in February 2010.

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Ladies and gentlemen, if from the evidence presented you find

that [the defendant] has been convicted of a prior crime you can

consider that evidence only for the purpose of its effect on the

count of the indictment that alleges that he is a convicted felon

in possession of a firearm. You are not to consider it for any

other purpose. It doesn’t go to whether he’s guilty, or not guilty

of any of the other charges involved in any of the other counts

of the indictment. It is only being allowed to be presented to

you for the sole purpose of that particular count that alleges that

he has previously been convicted of a felony. But, you are not

to base you[r] decision on the rest of the charges based upon that

conviction. Only for that count of the indictment are you to use

it.

Once the State rested its case, the defendant moved for a judgment of acquittal,

which the trial court denied. Following a Momon colloquy, see State v. Momon, 18 S.W.3d

152, 161-62 (Tenn. 1999), the defendant elected not to testify and chose to present no proof.

The jury convicted the defendant as charged on all counts. Following a sentencing hearing,

the trial court imposed an effective sentence of 120 years’ incarceration.

Following the denial of his timely but unsuccessful motion for new trial, the

defendant filed a timely notice of appeal. In this appeal, the defendant challenges the trial

court’s refusal to sever the offenses and contends that the State violated the requirements of

Brady. We consider each claim in turn.

I. Severance

The defendant contendsthat the trial court erred by denying his motion to sever

the charge of being a felon in possession of a handgun from the remaining offenses. He

argues that informing the jury, prior to the presentation of any proof, that the defendant had

been previously convicted of a crime identical to that with which he was charged in the

instant case would be unfairly prejudicial and indicative of the defendant’s propensity to

commit aggravated robbery. The State asserts that Tennessee Rule of Criminal Procedure

8 required joinder of the offenses because they were part of a single criminal episode.

A. General Principles

We review the propriety of a trial court’s decision regarding the consolidation

of indictments or severance of charges for abuse of discretion. See State v. Garrett, 331

S.W.3d 392, 401 (Tenn. 2011) (citing Spicer v. State, 12 S.W.3d 438, 442 (Tenn. 2000)); see

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also State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). “A trial court abuses its discretion

when it applies incorrect legal standards, reaches an illogical conclusion, bases its ruling on

a clearly erroneous assessment of the proof, or applies reasoning that causes an injustice to

the complaining party.” Garrett, 331 S.W.3d at 401 (citing State v. Jordan, 325 S.W.3d 1,

39 (Tenn. 2010)).

“Before a trial court may deny a severance request, it must hold a hearing.”

State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008). Because the determination of whether

multiple offenses should be joined or separated for trial establishes a format for trial, the issue

obviously must be presented and resolved before trial. See Garrett, 331 S.W.3d at 403; see also

Tenn. R. Crim. P. 13(b) (providing that a trial court may order severance of offenses before trial);

Tenn. R. Crim. P. 14(a)(1)(A) (providing that a defendant, except in the event of a later arising

ground, shall move to sever offenses “before trial”). The trial court must base its decision regarding

severance on “the evidence and arguments presented at the hearing,” and, as a result, our review on

appeal is limited “to that evidence, along with the trial court’s findings of fact and conclusions of

law.” Spicer, 12 S.W.3d at 445; see also Garrett, 331 S.W.3d at 404 (where supreme court

conducted its “analysis on the basis of the evidence adduced at [the d]efendant’s trial instead of only

the evidence adduced at the hearing” because trial court failed to hold a pretrial hearing).

B. Severance Hearing Evidence and Trial Court’s

Findings of Fact and Conclusions of Law

At the severance hearing, defense counsel argued that “to tell the jury on the

front end in an indictment, that [the defendant] has been convicted of . . . a prior felony of

exactly the same charge as he is being tried, . . . would be so prejudicial that [the defendant]

. . . could not receive a fair and impartial trial with the presumption of innocence that is

afforded to him.” The State responded that “this is a case of mandatory join[d]er” because

“all the facts at issue give rise out of the crimes that were committed, and whether [the

defendant] had a gun and was a convicted felon at the time.” The trial court ruled as follows:

I would have to say that the facts would have to be tried, the

exact same facts would have to be tried again. That is why I

would say that under the law these cases have to be indicted

together and under those circumstances it is unfortunate, but I

have to agree, that I think the law has been laid out that one of

the elements of this offense is that while possessing this firearm

[the defendant] was aware that he had a prior criminal

conviction for a crime involving a deadly weapon, which is an

element of the offense, which has to be proven.

Not only did he possess it, but at the time he was aware

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that he had been previously convicted of aggravated robbery, a

felony involving the use of a deadly weapon, which makes it a

completely, separate offense, but because it would be joined

offenses – are all joined under the rules mandatorily. I am of the

opinion that it would have to be tried together.

And, I can only do this, due to the nature of the law,

being what it is, I can only admonish the jury that they are only

allowed to use that for purposes of the elements of this

particular offense that’s alleged in count nine. They are not to

use it for anything else.

It obviously can’t go as a propensity, or be allowed for

them to consider as to whether or not [the defendant] is guilty of

this offense.

. . . .

But, as to the request to sever, for the grounds that you

have stated, I am especially going to deny the motion and allow

this matter to go forward with an admonition to the jury that

they are not to consider it for any purpose, other than, whether

or not he’s guilty of that particular count of the indictment.

C. Relationship Between Procedure Rules 8 and 14 and Evidence Rule 404(b)

Here, all the offenses were charged in a single indictment. Tennessee Rule of

Criminal Procedure 8 governs both mandatory and permissive joinder of offenses. Pursuant

to that rule, offenses must be joined if they are:

(A) based on the same conduct or arise from the same

criminal episode;

(B) within the jurisdiction of a single court; and

(C) known to the appropriate prosecuting official at the

time of the return of the indictment(s), presentment(s), or

information(s).

Tenn. R. Crim. P. 8(a). Offenses may be joined for trial if “(1) the offenses constitute parts of a

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common scheme or plan; or (2) they are of the same or similar character.” Tenn. R. Crim.

P. 8(b). Regardless whether the joinder of offenses was mandatory or permissive, the

defendant may file for a severance of offenses pursuant to Tennessee Rule of Criminal

Procedure 14. In cases of mandatory joinder, when the defendant asks for a severance prior

to trial, “the court shall grant a severance of offenses . . . when the court finds a severance

appropriate to promote a fair determination of the defendant’s guilt or innocence of each

offense.” Tenn. R. Crim. P. 14(b)(2). In cases of permissive joinder, “the defendant has the

right to a severance of the offenses unless the offenses are part of a common scheme or plan

and the evidence of one would be admissible in the trial of the others.” Tenn. R. Crim. P.

14(b)(1).

Thus, the first question we must answer is whether the joinder of offenses in

a single indictment in this case was mandatory or permissive. In State v. Johnson, 342

S.W.3d 468 (Tenn. 2011), our supreme court adopted “the criteria for a ‘single criminal

episode’ found in the ABA Standards for Criminal Justice.” Id. at 475. Under those

standards, for principles of mandatory joinder to apply, “the acts to be included in the same

criminal episode must occur simultaneously or in close sequence and must occur in the same

place or in closely situated places.” Id. The court observed that

in order for a single criminal episode to exist, the “proof of one

offense necessarily involves proof of the others.” 2 ABA

Standards for Criminal Justice § 13-1.3 cmt., at 13.10. This

means that the proof of one offense must be ‘inextricably

connected’ with the proof of the other, see State v. Shepherd,

902 S.W.2d 895, 904 (Tenn. 1995), or that the proof of one

offense forms a “substantial portion of the proof” of the other

offense. See United States v. Montes-Cardenas, 746 F.2d 771,

776 (11th Cir. 1984).

Id.

In the instant case, the offenses at issue unquestionably arose from the same

criminal episode, were within the singular jurisdiction of the trial court, and were all known

to the State at the time of the return of the indictment. See Tenn. R. Crim. P. 8(a). The

defendant’s use of the handgun factored into each of his charged offenses: attempted second

degree murder, aggravated robbery, especially aggravated burglary, and aggravated assault,

as well as the employment of the handgun during the commission of a dangerous felony. As

such, proof of the defendant’s status as a convicted felon in possession of a handgun

necessarily involved proof of the other offenses. See Johnson, 342 S.W.3d at 475. We

conclude that the joinder of this offense with the others was mandatory pursuant to Rule 8.

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D. Severance Under Rule 14(b)(2)

Having determined that joinder of the defendant’s offenses was mandatory, we

must now consider whether severance was “appropriate to promote a fair determination of

the defendant’s guilt or innocence of each offense.” Tenn. R. Crim. P. 14(b)(2). Our review

of the record reveals that the trial court gave a thorough limiting instruction to the jury

following the proof of the defendant’s prior felony conviction, which we must presume the

jury followed, and we conclude that this instruction adequately shielded the harmful effect,

if any, of the defendant’s prior conviction. See, e.g., State v. Banks, 271 S.W.3d 90, 134

(Tenn. 2008) (stating that “[j]uries are presumed to follow the trial court’s instructions”).

Accordingly, we find no abuse of discretion in the trial court’s refusal to sever the offenses.

Although the defendant relied solely on severance in addressing this issue both

at trial and on appeal, we observe that there were two avenues available to him that might

have proven more efficacious. First, the defendant could have offered to stipulate to his prior

felony conviction, which would have shielded the jury from discovering the nature of the

prior felony. See State v. James, 81 S.W.3d 751, 762 (Tenn. 2002) (holding that “when the

sole purpose of introducing evidence of a defendant’s prior convictions is to prove the status

element of the offense, and when the defendant offers to stipulate his status as a felon, the

probative value of the evidence is, as a matter of law, outweighed by the risk of unfair

prejudice”); see also State v. Marvin Senathan Hall, Jr., No. W2008-00933-CCA-R3-CD,

slip op. at 8 (Tenn. Crim. App., Jackson, June 12, 2009), perm. app. denied (Tenn. Nov. 30,

2009) (noting that “a defendant can offer to stipulate to the elements of an offense, but by

doing so cannot prevent the jury from learning of an element of the offense or the

stipulation”). Second, the defendant had the option of requesting bifurcated proceedings.

This practice has been used in the trial courts of this state and has not been criticized by our

appellate courts. See, e.g., State v. Taft Arkey Murphy, No. M2007-00403-CCA-R3-CD

(Tenn. Crim. App., Nashville, Oct. 27, 2008), perm. app. denied (Tenn. Mar. 23, 2009); State

v. Alonzo Maurice Rogan, No. M2002-01603-CCA-R3-CD (Tenn. Crim. App., Nashville,

Jan. 22, 2004), perm. app. denied (Tenn. Nov. 15, 2004). However, because the defendant

chose neither of these alternative methods, we need not address this issue further.

II. Brady

The defendant also contends that the State violated the requirements of Brady

v. Maryland, 373 U.S. 83 (1963), when the State failed to properly inform him, prior to trial,

that it had entered into an agreement with Ms. Brunner to charge her with the lesser offenses

of facilitation of aggravated robbery and facilitation of especially aggravated burglary in

exchange for her testimony at trial. The State submits that it gave no preferential treatment

to Ms. Brunner, and, as such, the defendant could not establish a Brady violation.

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The constitutional right to a fair trial imposes upon the State “duties consistent

with the[] sovereign obligation to ensure ‘that justice shall be done’ in all criminal

prosecutions.” Cone v. Bell, 556 U.S. 449, 451 (2009) (quoting United States v. Agurs, 427

U.S. 97, 111 (1976) (citation and internal quotation marks omitted)). In Brady, the United

States Supreme Court held that “suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.” Id., 373 U.S.

at 87. “Evidence ‘favorable to an accused’ includes evidence deemed to be exculpatory in

nature and evidence that could be used to impeach the [S]tate’s witnesses.” Johnson v. State,

38 S.W.3d 52, 55-56 (Tenn. 2001) (citing State v. Walker, 910 S.W.2d 381, 389 (Tenn.

1995); State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998); United States v.

Bagley, 473 U.S. 667, 676 (1985)). The duty to disclose exculpatory evidence extends to all

“favorable information” irrespective of whether the evidence is admissible at trial. State v.

Robinson, 146 S.W.3d 469, 512 (Tenn. 2004) (appendix); Johnson, 38 S.W.3d at 56. Brady

and its progeny create in the “individual prosecutor . . . a duty to learn of any favorable

evidence known to the others acting on the government’s behalf in the case.” Kyles v.

Whitley, 514 U.S. 419, 437 (1995).

To prove a Brady violation, a defendant must demonstrate:

(1) that he requested the information (unless the evidence is

obviously exculpatory, in which case the [S]tate is bound to

release the information whether requested or not),

(2) that the State suppressed the information,

(3) that the information was favorable to the defendant, and

(4) that the information was material.

Johnson, 38 S.W.3d at 56 (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); Walker,

910 S.W.2d at 389); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (“There are

three components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or inadvertently; and prejudice must have

ensued.”). The evidence is deemed material if “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

different.” Bagley, 473 U.S. at 682.

The question is not whether the defendant would more likely

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than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence. A ‘reasonable

probability’ of a different result is accordingly shown when the

government’s evidentiary suppression ‘undermines confidence

in the outcome of the trial.’

Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). Plainly stated, establishing

materiality requires a “showing that the favorable evidence could reasonably be taken to put

the whole case in such a different light as to undermine confidence in the verdict.” Kyles,

514 U.S. at 435; see Johnson, 38 S.W.3d at 58.

In the instant case, Ms. Brunner was charged from the outset with facilitation

of aggravated robbery and facilitation of especially aggravated burglary, and these charges

were included in the same indictment asthe charges against the defendant. Without question,

the defendant was aware of these charges against Ms. Brunner well in advance of trial. The

defendant claims, however, that at Ms. Brunner’s sentencing hearing on July 9, 2012, he

learned, for the first time, that the State had chosen to charge her with facilitation in

exchange for her testimony against the defendant at trial. He argues that, first, this directly

contradicted Ms. Brunner’strial testimony, in which she specifically denied entering into any

deals with the State in exchange for her testimony, and second, that had he been aware of this

“deal,” he could have utilized it in his cross-examination of Ms. Brunner at trial to undermine

her credibility.

Our review of the record reveals that Ms. Brunner did, in fact, acknowledge

on direct examination at trial that she was charged with facilitation rather than the more

serious crimes of attempted murder and aggravated robbery because of her “assistance to the

police on the front end.” Despite the defendant’s apparent failure to notice this admission

at trial, he nonetheless managed to conduct a very thorough cross-examination of Ms.

Brunner regarding her role in the crimes at issue.

Moreover, as the trial court pointed out in ruling on this issue at the hearing on

the defendant’s motion for new trial, the State strongly opposed probation at Ms. Brunner’s

sentencing hearing, evincing that she received no special treatment:

Ms. Brunner was indicted from the beginning for facilitation.

She wasn’t indicted for the aggravated robbery at all. She was

indicted for facilitation. She was questioned about being

indicted for facilitation. She testified about being indicted for

facilitation and she testified that there were no promises made.

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And, frankly, at the guilty plea I (indiscernible) the crime of

facilitation. I didn’t get the impression that [the prosecutor] had

made her any promises because . . . Ms. Brunner was asking for

probation and [the prosecutor] wanted her to go to jail. So, I

mean, I sure don’t see that there was any pre-agreement at least

based on my impression at the probation hearing for Ms.

Brunner that she was going to get any . . . special treatment other

than you’re charged with facilitation and not aggravated

robbery.

. . . .

As to any deals struck with Ms. Brunner. I think she

testified that the only arrangements or the only issues was that

she had been indicted for facilitation and not aggravated robbery

and that was pointed out to the jury and she was voir dired about

that. But she had no deals with regard to a sentence imposed.

And even at her sentencing hearing I don’t believe that there

was any proof whatsoever that there was any deal struck

between her and the State other than she testified then and told

the truth, then that would be taken into account.

I really don’t recall exactly what she said as to the deal.

Because when she took the stand in her sentencing hearing I

think the State was very adamant about the fact that she needed

to go to jail and argued very forcefully that she needed to go to

jail. So if there was a deal struck I don’t know what it is. And

I’m not familiar with anything other than that she was charged

with facilitation. I understand your argument that she could

[have] been charged with aggravated robbery and I think . . . she

was cross-examined about all of that. So I think the jury had the

right to understand that. And I don’t think that that was an issue

that [a]ffected the outcome of the trial. So I noted your

argument but I just, I don’t think that it has any merit.

In our view, the record fully supports the ruling of the trial court. Nothing in

the record indicates that the State suppressed any favorable information. As we have already

pointed out, the defendant was aware of the charges against Ms. Brunner from the beginning,

and Ms. Brunner acknowledged at trial that she was charged with facilitation, at least in part,

due to her cooperation and testimony. The State opposed probation for Ms. Brunner, clearly

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evincing that no agreement was reached with respect to Ms. Brunner’s sentencing. As such,

the defendant has failed to establish a Brady violation.

III. Conclusion

The trial court did not abuse its discretion by refusing to sever the defendant’s

offenses, and the defendant failed to establish a Brady violation. Accordingly, we affirm the

judgments of the trial court.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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