### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs S ep te mb er 24, 200 8

STA TE OF TEN NES SEE v. DA LTON LISTE R

Appeal from t he Criminal Court for Bradley County No. M- 05-072 Car roll L. Ross, Jud ge

No. E2007-00524-CC A-M R3-CD - Filed June 29, 2009

The de fenda n t , Da l t on Lister, appe als from his jury convic tions in t he Bradle y County Crim inal Court for first de gree felony murde r; two counts of a ttempted aggra vated r obbery, a Class C felony;

a ndc on sp ir a c y to c omm it a gg ra va te d r ob be ry , a Cla ss C fe lon y. He re c e ive d a lif e se nte nc e , w ith

c on c ur re nt s e nte nc e s o f s ix y e ars a s a Ra ng e I, stand ard of fe nd e r fo r ea c h Cla ss C fe lon y. On app e a l, the de fe nd a nt c on te nd s ( 1) that th e e vid e nc e wa s in su ff ic ie nt t o c on vic t hi m of

the c ha rg e d o ff e ns e s; (2) that the tr ial court e rre d in not permitting cross-exa mination regarding a se vere d defe ndant’s

ou tst a nd ing arr e st w arr ant, pe nd ing c ha rg e s, status a s a

fu git ive , a ndpo ssi blebia s to fa br ic a te testimony to obt ain a f

avora ble disposition of the pending char ges; (3) tha t the trial court e rre d by failing to suppress a r ec o rd ed statement of the de fenda nt when the original rec ording was intentionally destroyed and lost by the detective who had possession of it; and (4) that the trial court

err ed in not ordering disclosure of the detective’s st atement to the Tennessee Bure au of I nvestigation

conce rning the lost a nd destroyed original rec ording of the defe ndant’s stateme nt taken the night of the homicide. We hold that the evidence was sufficie nt to convict the defe ndant of the c harge s and that the def

endant wa ived his remaining issues by not filing a ti mely motion for ne w trial, and w e aff irm the judgments of the trial court.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

J OS EP H M. T I P TO N , P.J., delivered the opinion of the court, in which D AVI D H. W ELL ES and J ERRY L. S MIT H , JJ., joined.

Charles Richar d Hughes, Jr., D istrict Publi c De fende r, for the appe llant, Dalton Lister.

Robert E. Cooper, Jr., Attorney Gene ral and Reporter ; Re nee W. Turner
, Senior Counsel; R o b ert Steve Bebb, District Attorney G ener al; and Kristie Luffma n, Sandra D onaghy, Stephen Crump and John Williams, Assist ant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.-2- OP IN ION

This case rela tes to the arme d entry by the defe ndant and a co-de fenda nt into the hotel room of Beto Villalobos and Julius “ K.C.” Shapley and the e nsuing shooting and death of Julius “K.C.” Shapley on Dec ember

22, 2004. The de fenda nt, Tony Kincaid, a nd Heather Masse ngill were trie d tog e the r. A f

ou rth d e fe nd a nt, Ric ha

rdJe rg e r, wa s se ve re d f

ro m th e tr ia l a ndte sti fi e d as a wi tne ss for the State.

At the tr ia l, S c ott

Park e r t e sti fi e d th a t he wo rk e d wi th the de fe nd a nt a ndRic ha rdJe rg e r i n a roof ing company Parke r and Je rger owned. He said the defe ndant stopped working there afte r he called the witness an d as k ed him to “go with him to do a robbery.” He sa id he did not acc ept the de fe nd a nt’ s o ff

e r. Park e r s a id the de fe nd a nt t oldhim that so me pe op le fr om Te xa s we re c omi ng to see him and that these people would have money and dr ugs. He said this conve rsation occ urre d one
or two we ek s befor e Christmas. On cr oss-exa mination, Parker testified that he did not alert the police bec ause he did not take the defe ndant’s claim seriously. He said he had not met co-def endant Kincaid. He said he continued to speak with Jerge r after the events givi ng rise to the pre sent ca se. He sa id he had spoke n to Jerger ’s wife , Debbie, a bout talking with a detective a nd that he wa s “good friends” with Je rger

. He said he did not know that Jerge r had previously robbe d a liquor store. O n redire ct exa mination, he testified t h at h e s t opped spea king to the defe ndant the day the defe ndant told him about the robbery plans. He sa id he terminate d the def endant’ s employment that day, as well. Jason Taylor, the manage r of a local Wa l-Mart, testified tha t detectives a sked him to review

rec ent purc hases of ammunition, although he did not remember which spec ific type. He stated the store kept a

rec ord of a ll sales, which we re tra cked to spe cific r egisters a nd labeled w ith the time and date of the sale. H e said he gave the detec tives a copy of the store’ s video surveillanc e film.

J an i ce Reze ppa, a W al-Mart employee, testified that she worke d in the sporting goods department the night of Dec ember 22, 2004, when a

“younger girl” ca me to the s tore to buy .380

amm unition. S he said she e xplained the diff ere nce in the use s of ammunition, whether f or targe t prac tice or f

or home prote ction, and she said the gi rl chose the home protec tion-type bullets, which

wer e the “ jacke ted hollow points” bullets. She said the gi rl was a round 5'5" or 5'6" and we ighed 160 to 170 pounds. She said that when ringing up the sale at 8:46 p.m., she asked f or the girl’s birth da te, which wa s rec orded on the rec eipt as “9/21/78.” She sa id her employee number, the store number

, the re gister number, and the t ime of sale wer e also rec orded on the s ales rece ipt. She said that the
store mana ger c alled her to the store office a fe w days a fter this sale to watch the video surve illance film and that he a sked her if she reme mbere d anything about this particular sale. Rez eppa a nswere d questions about t he sale, and the tape of it was played in court but not included in the re cord. She

sa id tha t she sp ok e ma inl y to the fi rs t gir l be c a us e the se c on d g ir l w ho c a me wi th the fi rs t gi rl did not say much. She identifi ed this first girl, the one who aske d about the ammunition, as a c odefe ndant pre sent in the courtr oom.

Doctor Ronald Toolsie testified that he wa s a pathologist at Bradley Hospital in Cleveland, Te nn e sse e . T he pa

rt ie s st ipu la te d tha t he wa s an ex pe rt in pa tho log y. He sa id tha t a lth ou gh mos t pathologists do not perform autopsies, he perf ormed autopsies and that he performed the autopsy of the victim, Julius Angelo Shapley, on Dec ember 23, 2004. He stated that the victim’s manner of-3-

death wa s a hom icide and that the vi ctim bled t o death. He said the victim’s aorta ha d been torn by a lar ge ca liber gu n s h o t wound to the abdomen. H e said that a lthough the victim weighed

app ro xim a te ly 3 00 po un ds , h e ha d n o c on tr ibu tin g n a tur a l di se a se

. He e sti ma te d that if the vic tim had bee n trea ted immediately afte r being wounded, he might have survived, but he sa id the wound

wa s a lm o s t a lw a y s f

a ta l. H e s a id th a t in a d d it io n to th e a o r ta la c e r a ti o n , th e v ic ti m’ s liver and stomach had be en torn. He said that if the victim had survived, he would have ha d a spinal injury beca use the bullet ca me to rest in the victim’s bac kb o n e. He sa id he re moved the bullet and submitt ed it to the TBI along with the victim’s blood sample and clothing. H e said the vic tim’s body ha d n o o ff

e ns ive or de fe ns ive inj ur ie s, wh ic h he e xp la ine d a s sc ratc he s a ndbr uis e s o n th e fo re arm s

or th e back or

fr on t of the ha nd s. He a lso sa id the vic tim ’s bo dy ha d n o s tip pli ng , w hic h is embedde d soot and unburned gunpowder

, that would indicate the w eapon ha d been f ired within a few inches of the victim’s body. He stated, how ever , that clothing would catc h the particles which could explain why no stippling was found on the vi ctim’s body. He also agre ed that the presenc e of a pota to on the end of the barr el when the gun was fir ed might explain the lack of stippli ng on the victim’s body.

On cr o ss-exa mination, Dr. Toolsie testified that the single entr ance wound was a non-conta ct wound, wher e the we apon wa s fired a nywher e fro m a fe w i n ch es to a fe w yar ds awa y from the victim’s body. He s ai d t h at analysis of the victim’s blood sample reve aled the pr esenc e of a

me ta bo lit e of mari jua na ; a no n- sp e c if

ic dr ug in the c la ss of Va liu m; a no the r dr ug “ a lmo st c e rt a inl y given to him imm ediately be fore his explora t o ry s urgery”; and a lcohol at a blood alc ohol content of 0.04. Dr. T oolsie stated that ea ch of the se sedatives would synergistically incre ase the eff ects of the other se datives. In Dr . Toolsie’s words, “ A little bit of a l o t o f d ru gs will produce a lot of sedation.” He st ated that it was possi ble for someone to exert grea t force on another person’ s neck bu t lea ve no br

uis e s or mark s, e xc e pt f

or fi ng e rn a il i mpr e ssi on s if

the a ssa ila nt d ug in h is f

ing e rn a ils

.

James Russell Davis II , a spec ial agent a nd fore nsic scientist in the TBI crime la boratory’ s mi cr o an al y s i s section, wa s acc epted a s an expe rt witness in gunshot residue and its testing. He testified that he a nalyze d a pair of cover alls, the victim’s r ed shirt, a nd “potato rema ins” taken f rom the floor of the crime sc ene. H e said he found gunshot primer r esidue, whic h consists of particle s emitted in the proce ss of firing a gun, on the coveralls and in the pot ato remains. He said this m eant the cove ralls and the potato were in the vicinity of a we apon whe n it wa s fired. H e said the vic tim’s red shirt ha d a fine powder on it that was consistent with potato sta rch. The witness stat ed t hat another way of finding gunshot powder re sidue was to examine some one’s ha nds after trea ting them with a ce rtain typ e o f acid. He said a shooter ’s hands a re c losest to a handgun and that the concentration of ba

rium, antimony, and lead he looks for would be gr eate st there. He stated that these e lements are toxic to the hum an body and a re not na turally occ urring in the body. Refe rring
to a s h o o te r ’ s c lo th in g , h e s tate d th e d is ta n c e o f th e b o d y f r o m th e w e ap o n a f

f e c te d how much gunshot residue would be found on, for example, the shir t part of the cover alls as opposed to the pants. He state d that the guns hot residue on a gun could be transfe rre d from person to person if a second pe rson handled the gun afte r it had bee n shot.

Mr. Davis testified tha t he ana lyzed the gunshot re sidue tests of B eto Vil lalobos, who was the sec ond victim of the attemp t ed aggra vated r obbery, the defe ndant, and Tony K incaid, a c o--4-

d e f e n d a n t. T h e w it n e s s s tate d th a t f o r e a c h te s t, th e r e s u lt s w e r e in c o n c lu s iv e

. H e e x p la in ed that he loo ke d f

or a c e rt a in r a tio of

the thr e e e le me nts of

gu ns ho t r e sid ue . H e sa id tha t w he n th is r a tio was not pre sent or whe n the quantity of the e lements was insufficient, he could not sta te what ha d

occur red

. He said this m eant he could not eliminate the possibility t hat ea ch per son had fire d, handled, or

been ne ar a

gun when it f

ired. He also stated that gunshot r esidue could be r ubbed off thr ou gh c on ta c t or

thr ou gh wa sh ing on e ’s ha nd s.

Te ri Arne y, a

fo re ns ic sc ie nti st w ith the TBI c ri me la bo ratory’ s f

ir e arm s ide nti fi c a tio n u nit

, was stipulated to be a n expert wi t n es s re g arding fir earms. She testified that she exa mined two firea rms, sever al magaz ines, fired and unfire d bullets, and ca rtridges in conne ction with the instant

case . She sai d t h e s er i al n umber of the first gun she exa mined, a “.44 spe cial,” ha d been “oblitera ted.” She sa id she determined that a fired cartridge submi tted with this gun had bee n fired from the gun. She sa id the bullet removed f rom the victim was the same ca liber as the gun, a lthough it was damage d. She also stated that the bullet w as the type she w ould expec t to see loade d in the gun. She said she could not, how ever , state that the bullet was fire d from the gun due to the damage

a ndla c k o f m ark ing s, a lth ou gh sh e sa id tha t th e bu lle t sh are d th e sa me c la ss charact eri sti c s a s a bullet fired f

rom the gun. She te sti fi e d th a t she te st- fi re d a bull e t fr om the gu n a ndthat th e gu n d id not put markings o n t h e ca rt ridge in a w ay she c ould use for ide ntification. She said the lac k of marking ability was due to the gun’ s age. She sa id she could not m at ch t h e b u l let taken f rom the victim to the gun.

Ms. Arney te stified that the second gun she analyz ed, a Jennings “Mode l 48, .380 auto” wa s inopera ble upon rec eipt. She said two problems pre vented the gun f rom firing: (1) a

broken f iring pin, and (2) the trigger ba r wa s out of alignment. She said this gun’s magazine contained f ive bullets, which she also a nalyze d.

On cr oss-exa mination, Ms. Arney testified that she c ould not conclude the bullet taken f rom the victim was fire d from the . 4 4 caliber gun. She stated that the gun’s a ge pre vented it from imprinting bul lets with microscopic mar kings that would link t he bullet to the gun. She said, howeve r, that the bullet wa s the cor rec t caliber

for the gun a nd had the sa me rifling cha rac teristics as the bullet she test-f

ired. She said the second gun wa s not obviously i nopera ble unless someone either ope ned a “ slide” to see the broken f iring pin or attempted to fire the gun. She said eac h defe ct

wo uldind e pe nd e ntl y p re ve nt the gu n fr om fi ri ng

. Re ga rd ing the bu lle ts i n th e ma ga z ine , s he sa id they wer e Winc hester, br ass-e nclosed ba se bullets. She said the nose “ would have some exposed le a d, ” wh ile the ba se wa s ma de of brass . Sh e te sti fi e d th a t th e TBIa na lys ts w e re no t a ble to determine whether

a spec ific bullet ca me from a specific packa ge of bullets, although she said the FBI pe rformed that type of analysis. She stated that she had not been a sked to perf orm this type of analysis.

Gary Webb te stified that he staye d at the Classic Suites Hotel in Cleveland, Tenne ssee, the night of Dec ember

22, 2004. He sa id that during the night, a “c ouple” of men knocke d at his front and bac k doors “se vera l” times and aske d for “ M i ch el l e. ” He state d that the two men we re approximate ly the same height and were 5'10 or 5'11. He said one of the me n was he avier -set than the other a nd was Af

rica n-American, while the second ma n was “ lighter skinned.” He said that the heavie r-se t man was the “ talker” and seemed agitated. He said the s econd man was a pologetic. On-5-

cross-e xamination, he testified that he stayed in Room 13 and that he did not hea r any gunshots that night. He i dentified the two men as the two male de fenda nts, although he conc eded tha t it had been

so me tim e sin c e he ha d s e e n th e m.

Be to V ill a lob os fr om L e po rt , Te xa s, te sti fi e d that he ha d b e e n o ne of Ju liu s Sh aple y’ s b e st friends a nd that he had know n him as “K.C.” He said he and K.C. had known e ach othe r for seven or eight yea

rs. He stated t hat t he defenda nt used t o live up the stree t from K.C. and that he , K.C., and the de fenda nt werefriends. H e said that he knew He ather Massengill as the def

endant’ s girlfriend but that he did not know her we ll. He said he ha d visited their home in Cleveland in the past and ha d met their daughte r. He said he and K.C. had come to Cleveland at Christmastime along with K.C.’s cousin Larry and their friend Tommy. He said they s tayed at the Classic Suit es Hotel during the stay whe n the eve nts giving rise to the prese nt pr osecutions occur red. H e stated tha t he

came to Cleveland to be pa id some money owed him and to ha ve fun f or a w hile. He sa id he wante d
to go hang gli ding in Tenne ssee, as it was a hobby of hi s. He admitted that he wa s a drug de aler and that he ha d be e n c oll e c tin g mo ne y o we d in his dr ug tr a de . H e said h e didno t tr a ns po rt a ne w s up ply here to be sold because two dea lers, Chris Baxter a nd Der rick Ha rtline, working for

him sti ll had a supply of marijuana

to sell. He s tated that the de fenda nt had told him that marijuana sold for a higher price in T ennesse e than in T exas and that they began tr aff icking it here through Chris Baxter

, to w hom he said the defe ndant had introduced him. He sa id he sold drugs bec ause he could not find another job.

Mr. Villalobos testified that he a nd K.C. eac h lent the def endant $1000 to purc has e marijuana from them. He said the plan had been for the defe ndant to r epay the m $1500 eac h from the money he would ea

rn through selling the marijuana . He state d that the defendant did not repay them and that they ca me to rec over the ir money. He said, howeve r, that he took no steps to r ecove r the money once he was in C leveland. H e stated tha t Chris Baxter and De rrick H artline owe d him money and that he did not worry a

bout the money the def

endant owe d him.

Mr. Villalobos testified that Dete ctives Duff Brumley and Guy Fer guson questioned him on Dec ember

23, 2004, the day a fter K .C. died, at Der rick Ha rtline’s house. He said he told them that he wa s in Cle ve la nd to c oll e c t mon e y the de fe nd a nt o we d h im a ndthat he ha d tr a ns po rt e d d ru gs to the ar ea. H e stated he was in jail at the time of the tri al for his convic tions for possession of

mar i j u a n a , p o s s e s s i o n o f c o c a i n e , a n d p o s s e s s i o n o f a f i r e ar m

. H e s a i d h e h a d b e e n f ou nd wi th

coca ine on his person, that law enfor ceme nt obtained a se arc h war rant for his home, and that they found marijuana and K.C.’s gun, which he said he kept for sentimental rea sons. He sa id he had a conviction for posse ssion of a stolen handgun, whic h he said he had unknowingly purc hased.

Mr . Vill a lob os te sti fi e d tha t on De c e mbe r 22, 20 04 , he wa s at the Cla ssi c Sui te s H ote l w ith K.C., Larry, and Tommy, w here he had slept most of the day. He said he a wake ned ar ound 9:00 or 9:3 0 p .m. He sa id tha t K.C. wa s in the liv ing ro om with a wom a n a ndthat he de c ide d to ge t a me a l. He sa id he drove to a nea

rby fa st-food restaur ant, purcha sed his me al, and r eturne d to the hotel. He said that he initially decided to e at in the bedroom to give the pair some privac y but that he dec ided to join them in t he living room watching television. He said the woman inquire d about her ride home, that K.C. dialed a

telephone numbe r, but tha t he rec eived no answe r. He said all three of them smoked a “

joint.”-6-

Mr. Villalobos testified that he heard someone at t he hotel room’s back door. He said that he hea rd mumbling in response to his questio n s an d t h at he re cognize d the def endant whe n he opened the door. He sa id the defe ndant aske d if Michelle we re the re. H e said he told him s he wa s and then locke d the door. He said he told Michelle that the defendant was at t he door, that she then got up from the couc h to retrieve her shoe s and purse, that he opened the door f or her to leave, a nd that Michelle “ froz e” w hen the door was ope ned. He said the def endant ’s b ody language and statement, “W hat’s up” told him he wa nted to fight. He said he remove d his jewelry to fight the defe ndant and c alled to K.C. He state d that he thought the defe ndant would re main at the door but that th e de fe nd a nt w a lke d in to the be dr oo m, thr ou gh the do or way, a ndint o th e liv ing ro om w ith his gun draw n. He sa id the defe ndant told him,“Give it up, give it up. You al l m o t h er f-

-- -- - t hink I rob bed yo u b e fo re . I ’m

go nn a re a lly ro b y ou no w. W he re ’s the s-

-- a t? W he re ’s the mon e y a t? Give it up.” He said that at that point, another man, w hom he identified a s co-de fenda nt Kincaid, ran into the hotel room holding a gun that ha d a potato st uck on the e nd of the ba rre l. He said that this man, the defe ndant, K.C., and he we re a ll yelling at each othe r and tha t co-de fenda nt Kincaid’s
comments wer e similar to the defe ndant’s with the exce ption of “Don’ t ma ke me kill you . . . .” Mr. Villalobos said he and K.C. wer e telli ng the t wo i ntruders to lay down their guns. He sa id the two men told him to gi ve them his jewelry, the drugs, and the money. He stated that he wa s “sca red” for his life and that he ope ned the f ront door for

the hotel offic e to see what was going on in the hotel

ro om. He sa id the de fe nd a nt j ump e d in fr on t of him a ndsla mme d th e do or

sh ut w hil e te lli ng him he would shoot him if he opene d the door a gain. He sa id the defe ndant told Mr. Kincaid not to shoot K.C. b u t i n s t ea d t o shoot “the Mexica n.” He said that he a nd K.C. glance d at ea ch other , that he

ru sh e d a t th e de fe nd a nt a ndkn oc ke d him dow n, a nd that Mr. Ki nc a id an d K .C. we re str ug gli ng wi th

eac h other. He said their glanc e wa s his w ay of communicating to K .C. that because they we re going to shoot him , he would try to r ush the defe ndant. He stated he and the defe ndant wer e fighting on the ground whe n he hea

rd a gunshot. He said he and the def endant c ontinued to fight in the kitchen

are a and knoc ked over the ki tchen table. He stated the def endant told him, “We just came to sca re yo u.

. . . I wa sn ’t

go nn a hu rt no bo dy .” He sa id tha t a t th a t mo me nt, K. C. an d Mr. Ki nc a id we re in the bedr oom are a and that he could not see them while he f ought the defe ndan t. Mr. Villalobos stated that af

ter trying in vain to find a kitche n knife or other object in a dr awe r to use aga inst the defe ndant, he c hased the defe ndant out the back door. He said he opene d the front door and we nt to the be dr oo m, w he re he sa w M r. Ki nc a id “ sli din g o ut fr om un de r K .C. ” He sa id tha t Mr . K inc a id

ra n o ut the ba c k d oo r a ndthat w he n h e ne xt sa w K. C., he wa s fa lli ng fr om the be d onto his kn e e s. He sa id K.C. lifted up his shirt t o show him the wound and sa i d t h at he had be en shot. Mr. Vi lla lob os sa id that th e ho te l off ic e c a lle d th e ir

ro om t o in qu ir e abo ut the situa tio n a ndthat he tol d them to send an a mbulance. H e said h e was im mediately conne cted to the 9- 1-1 ser vice a nd that police ar rived soon af

terwa rds.

Mr. Vil lalobos testified t he defenda nt held a chrome pistol in his hand and identified it as the one in evidenc e. He said Mr. Kinca id held a blac k revolve r with a potato stuck on the e nd of the barr el and wore a blue jumpsuit . He identifie d the def endant a nd Mr. Kinca id as the intruder s. A 9-1-1 c all was playe d for the jury, but it has not been included in the a ppellate r ecor d.

On cr oss-exa mination, Mr. Villalobos testified that when he testified in the pre liminary hearing approximately one month after the shooting that he had come to Tenne ssee to “have a good time before my f

riend went to ja il,” this included rec overing money tha t he was ow ed, although he-7-

a c kn ow le dg e d th a t he didno t e xp lic itl y s a y th a t a t th e he ari ng

. He a lso state d tha t he int e nd e d th is meaning in his statement to Det. Felton afte r the shooting. He state d K.C. was mar ried a nd had

c hil dr e n in Te xa s. He sa id tha t ne ith e r h e no r K .C. kn e w M ic he lle Bu nt in g befor e c omi ng to Tenne ssee in late D ece mber 2004. He identified her as the woman in their hotel room whom the defe ndant came to pic k up. He disagree d with de fense counsel’s statement that h e b ro u g h t t wo “enf orce rs” with him to T ennesse e, Tommy a nd Larry, saying that they we re “ rea lly small guys.” He state d that although his preliminary hea ring testimony was that he did not know Mr. Kincaid a nd that he didno t r e me mbe r w ha t he sa id the nig ht o f the sh oo tin g, he wa s st ill in sho c k fr om the e ve nts at the pre liminary hearing and that he had been able to think about t hat ni ght in the i nterve ning time. He a lso said that he spoke with Mr. Baxter and Mr. Hartline a nd that he spoke w ith a detec tive at Mr. Ha rt lin e ’s ho me . H e state d th a t K .C. didno t ha ve tim e to t ou c h M r. Ki nc a id b e fo re he wa s sh ot, although he said he did not observe them f ighting in t he bedr oom. He said that he smelled alcohol on the def endant’ s breath.

Mr . V ill a lob os a dmi tte d th a t he wa s n ow a n in ma te in the Te xa s D e pa rt me nt o f C or

re c tio ns , ha vin g be e n co nv ic te d of t wo fe lon y c oc a ine of fe ns e s. He a lso a dmi tte d a c on vic tio n f

or do me sti c assault for burning his girlfriend with an iron. He said K.C. was about to begin a prison sentenc e for possession of an illegal firea rm. Villalobos sa id he told the detec tive, who was secr etly rec ording their conversation, t hat he “ca me t o collect. . . . c ame to get [ his] money” f rom the def

endant. He

sa id n e ith e r he no r K. C. ha d an y gun s dur ing the fi gh t. He a lso a c kn ow le dg e d tha t he didno t te ll the 9-1-1 ope rator that the defe ndant was the person who had be en fighting him, although he claimed to h av e t old the police whe n they ar rived. He also admitted that the def endant owe d K.C. money

a ndthat K .C. ha d c ome to g e t th e mon e y o we d h im. He sa id tha t th e de fe nd a nt o we d h im a ndK. C. $6 00 0. He de nie d th a t he ha d fa br ic a te d the sto ry of

thero bb e ry to c on c e a l hi s o wn re a so n to c ome to Tenne ssee––to recove r m oney owe d to him from drug transa ctions. He a cknowledge d he did not tell the 9-1-1 ope rator a

bout the robbery and did not identify the allege d robber s. He said he did not

rec oup any of the money owed him fr om other sourc es during his stay in Tenne ssee.

Cleveland Police Of

fice r Kevin Felton testified that he was one of the investigators involved in this case. He said he and Detec tive Gibson wer e called to the crime sc ene a nd began c ollecting and pre serving evide nce. H e said they co l l ecte d a .380 and a .44 caliber

handgun. He said they found the .380 in the e ngine compartment of a c ar a fter some one tol d them wher e to look. He state d that underne ath the .380 they f ound a pair

of blue c overa lls wrapped a round th e

. 4 4 . He sa id he opened the .44 and saw one empty casing under the firing pin, w ith the “dent in the p ri mer”

reve aling that the gun had be en fire d.

Offic er Felton testified that they r ecove red a bloody red shirt that he let air dry to pr eser ve the blood. He said they rec overe d a box of Winche ster brand .380 ammunition at the intersection of Va rnell and Hollow Roads. He said they also rec overe d potato rema ins from the Classic Suit es Hotel room. He stated that a car , a black 1993 Ma zda, w as subseque ntly identified as the one use d during the crime, that it was impounded, and that during a n invent o ry of the c ar, the y found a Maytag identification card be aring the de fenda nt’s name. Of fice r Fel t o n s aid he took many
state me nts du ri ng his inv e sti ga tio n u sin g c a sse tte re c or de rs . He sai d th at a ll the de te c tiv e s in his former unit used these tape rec order s for preser ving statements. He a cknowledge d that the detec tive unit investigating drug crimes used a digital recor der in a ddition to t he ca ssette re corde rs. He sta ted-8-

there had bee n a motion hearing on July 5, 2005, to request all materia l s t h at ei t h er the drug investigation unit or Office r Felton’s unit had. He sa id he contac ted the drug unit because they had also bee n at the crime scene on Dec ember 24, 2004. He state d that afte r re questing their information, Det. Duf f Brumley told him that Bruml ey had alre ady given Felton a ll the compac t disc s and ce llular telephones tha t they had. Of fice r Felton said he did not reme mber re ceiving any C Ds with the cellular telephones. He said Det. B rumley t old him he would send hi m another c opy burned f rom the original file that he had in his computer. He sa id he and a ll the co-de fenda nts’ attorneys r ece ived these CDs af

ter that he aring. He said that he returned from a vac ation the day of a sec ond motion hearing rega

rding the date whe n he originally re ceive d the statements—on De cembe r 23, 2004. At thi s h e ari ng , th e de fe nd a nts a lle ge d that th e Sta te ha d s ome state me nts wh ile the de fe nd a nts didno t. He said beca

use t here was testim ony that he had rec eived these CDs in Dece mber, he began to doubt himself and starte d to searc h for the CDs, whic h he said he found in his desk drawer

. He sa id that he knew that all parties ha d a copy of these CDs and tha t he threw the “c opies” into the dumpster outside the police de partment to try to save himself e mbarra ssment. He said he had bee n stripped of his detec tive rank a s discipline for his conduc t and was a patrol off

icer at the time of the tria l.

On cr o s s

- e x ami n ati o n , O f

f icer Felton testified that Tony Kincaid told him, Detec tive Gibson,

a n da n o t h e r

o f f i c e r t h a tt h e w e ap o n s w o u l d b e f o u n d i n t h e c ar

. H e s a i d c o

- d e f e n d a n tKi nc a id

a c c omp a nie d the m to the c ar. He sa id Ki nc a id t oldthe m he ha d w or n th e blu e c ov e ra lls a t th e tim e of the e vents giving rise to the trial. He said Kincaid had red marks on his ne ck. He said he did not

se e a ny .4 4 c a sin gs in the are a wh e re the c o- de fe nd a nts a ndoth e rs wo uldgo to s ho ot f a ir ly fre q u en t l y

. He state d that in Kincaid’s state ment from De cembe r 23, 2004, Kinca id said he we nt to the Classic Suit es Hotel on Dec ember 22, 2004, in a black or blue Mazda . Offic er Felton said the
state me nt r e fl e c te d th e fo llo wi ng inf or ma tio n. Ki nc a id sa id he ob ta ine d a bla c k r e vo lve r f ro m hi s cousin Mitch el l ’s h o u se and pla ced it in his front jac ket pocke t. Kincaid said he was we aring clothing other than blue c overa lls. He said he we nt to the hotel room to ge t “ the girl.” He sa id he did not rec ognize the Afric an-A merica n man who answe red the door. He sa id the “prostitute” a sked to leave. K incaid said that the man who answe red the door we nt into the bedroom are a and punc hed him, that they fought, that the man bega n to choke him, t hat he r emoved the gun f rom his jacket, that they struggled over the gun, and that he shot the man. He state d that he wa s certain he wa s in the bedroom fa cing the living room when he shot the man and that he shot the man bec ause he could no longer bre athe. He said that this man w as large r than he was and that he did not think the man was

arme d. He said that he did not know what kind of gun he used other than it wa s a black r evolver and that he had not se en it befor e De cembe r 22, 2004. He also admitted d ri n k i ng twelve be ers a nd

smo kin g ma

ri jua na be fo re the e ve nts

. He sa id he ra n f ro m th e ho te l r oo m a ft e r the sh oo tin g, go t in to the c ar, wh e re Ric ha

rdJe rg e r w a s, a nddr ov e to a gr oc e ry sto re , whe re he c a lle d his fa the r. He sa id neither he nor Jer ger kne w about a pla n to harm anyone , and he c laimed that Beto and K.C. did not rele ase the girl. He sa id that the baja jac ket in which he store d the gun was in his fa ther’s c ar but that he wor e the c overa lls during the shooting. In a longer, rec orded statement, Kincaid said he dra nk

e igh te e n b e e rs

.

Offic er Felton testified that he threw awa y two CDs in the dumpster outside t h e p o l ice
statio n. He sa id he tr a ns po rt e d Ton y Kin c a id to the ho sp ita l and that he told Ki nc a id t o p a ge him

e ve ry da y a t 1: 00 p. m. H e sa id Kin c a id co mpl ie d with the re qu e st. He sa id he la te r tol d K inc a id t o-9-

turn hi m self in. He sa id that he did not ask Kinca id to consent to a sea rch of the re sidence s. He admitted that he did not know if any guns we re store d in these re sidence s.

Offic er Felton testi fi ed t h at J erge r took him and Det. Gibson to the location where he had thr ow n th e bo x o f b ull e ts o ut o f the c ar w ind ow . H e sa id D e t. Gibs on fo un d th e bo x u nd e r s ome leave s using a metal detec tor. He said Jerge r told him the car was turning at the inter section at the time. Office r Felton stated t hat t he defenda nt and co-defe ndant M assengill lived in a trailer park on the roa d befor e the intersec tion. He said that Jerge r t old him that he and the def endant ha d spoken with Scott P arke r. He said that Jerge r had give n three statements in all to the police. He said that i n t h e first stateme nt, Jerger did not admit anything. He said Jerge r talked a bout the events of Dec ember

22, 2004, in a second statement dated Dec ember 30, 2004, although he said Jer ger did not mentio n a

p la n to c o mm it

ar me d r o b b e r y in th is s e c o n d s tate me n t. Re g ar d in g h is th ir d s ta tement giv e n a few da ys a ft e r h is M arc h 2 00 5 a rr e st, Je rg e r w a s c on c e rn e d a bo ut h is p os sib le pa

ro le violation, and Officer Felton said he tol d him that the officers would tell his parole office r that he had bee n cooper ative with them. He said that in the t hird statement, Jerger a dmitted there ha d been a plan to rob the victims.

Offic er Felton t estified he did not submit any fingerprints to the TBI for inve stigation. He acknow ledged that he only admitted rec eiving the CDs af t er De t. Brumley was investigated f or

a gg ra va te d p e rj ury. He state d h e ha d to vin dic a te De t. Bruml e y a nd to a c c e pt r e sp on sib ili ty f or his own stupidity. He said he did not listen to the CDs before he thre w them into the dumpster.

On re direc t e xamination, Offic er Felton testified tha t he guessed the box of bullets was found approximate ly seven miles from the crime scene and less than one mile f rom the defe ndant’s and codefe ndant Massengill’s re sidence . On re cross-e xamination, he testified that R i ch ard Jerger lived with the defe ndant and c o-def endant Ma ssengill.

Cleveland Pol i ce D etec tive Guy Ferguson testified that he investigated the homicide on De c e mbe r 2 2- 23, 2 00 4. He sa id h e dig ita lly re c or de d a state me nt tha t he do wn loa de d to his

c omp ute r t o c re a te a

fi le . H e sa id t

ha t he sti ll ha d the fi le a nd c ou ld m a ke a s ma ny c op ie s o f the fi le

as we re ne eded. He said that his normal practice was t o era se the stateme nt on his recor der a fter he downloaded the rec orded state ment to his computer.

Cleveland Police Detective Mark Gibson testified that he w as ca lled to the crime sc ene at the Cla s s ic Su it e s H o te l s h o r tl y a f te r 1 1 :0 0 p

. m. o n D e c e mb e r 2 2

, 2 0 0 4

, w h e r e h e p h o to g r ap h e d the

scene

. He sa idh e in te r v ie w e d c o

- d e f e n d a n t M a s s e n g il l o n tw o d a te s , a n d h e r s tate me n t f

r o m the second inter view wa s played for the jury. It wa s not included in the appellate record. He testified
rega rding the locations of the potato rema ins f ound in the hotel room. He sa id that he found the box containing bul lets at t he int erse ction of Varnell and Spring Hill Roads, which he said was less than five blocks a way f

rom the def

endant’ s and co- defe ndant Massengill’s re sidence

.

Detec tive Gibson testified that he intervie wed c o-def endant Kinc aid on Dec ember 23, 2004,

a nd that Kinc a id sta te d h e pla c e d th e gu n a t di ff e re nt m ome nts bo th i nto his ja c ke t po c ke t a ndint o his covera lls. He said that Kinca id later brought to the station the c lothes he cla imed to have worn during the shooting: black jeans a nd an orange shirt. He said that Kinca id later said he wore the blueA t t h e ti m e o f tria l, th e w itn e ss h a d m a rr ie d a n d h a d tak e n th e n a m e “ T e ff e te ller .” 1

-10- cover alls, which De t. Gibson said had the name “Dalton L.” written on a bar-code d tag. He said the

c ov e ra lls we re fo un d u nd e rn e a th a ru ste d c ar h oo d a lon g w ith the .3 80 a ndthe .4 4 w e apo ns . H is testimony corroborated Off icer Felton’s statements about the position of the items. He sa id that the .380 had a c lip in it with one round loade d into the chambe r and four rounds in the clip. He sa id the serial number

on this gun had been r emoved.

De te c tiv e Gi bs on te sti fi e d tha t Be to V ill a lob os ide nti fi e d th e de fe nd a nt f ro m a ph oto gr aph ic lineup. Det. Gibson said that h e i n t erviewed the de fenda nt on Dece mber 23, 2004. He said the defe ndant told him he was fr o m Texas a nd that he met up with three people at the Classic Suit es Hotel: “T-Roc k,” “Pimp Stick,” and “Big Boy.” He said the def endant told him that a woman ha d
ta k e n h i m t o t h e h o t e l

, t h a t h e d i d n o t l i k e B e t o , a n d t h a t h e a n d t h e o t h e r s w o u l d g o s h o o tin g in T e x a s w ith a

p o tato o n th e e n d o f

th e g u n b arr e l. H e s a idth e d e f e n d a n t, w h e n p r e s e n te d with a photograph of c o-def

endant Kinc aid, denied that that person was with him at the hotel. He said the defe ndant did not know who the red- haire d woman in the hotel room was. De t. Gibson stated that he photogra

phed the de fenda nt during their enc ounter a nd that the def endant’ s right shirt sleeve wa s ripped, his right arm ha d scratches, and his left l eg was scra tched and bloody. He said the are a fr om the Cl as s i c S uites Hotel to the defe ndant’s home wa s brushy and ha d briars. The defe ndant’s

rec orded state ment was playe d for the jury, but it was not included in the appe llate re cord.

On cr oss-exa mination, Det. Gibson testified that h e d et ected a fa int alcohol odor on the defe ndant. He sta ted that the def endant was held at the station a nd questioned in the ear ly morning hours of De cembe r 23, 2004, and that he was he ld at the station until he was cha rged tha t same day at 8:00 p.m. He said the def endant wa s allowed to go home for Christmas and was re quired to turn himself in after

Christmas. He said a “ materia l witness,” Michelle Bunting, was he ld for seve ral days in jail when she c ould not make bond. He sa id that she had not be en cha rged w ith any offe nses

re la tin g to the De c e mbe r 2 2, 20 04 e ve nts a nd that he ha d ma de no pr omi se s to he r. He sa id tha t hi s inq uiry in to the ide nti ty o f the thr e e me n th e de fe nd a nt i denti fi ed by nick na me le d h im t o Pa ri s Roofing, where no one knew anyone by the se nickna mes. He sa id, however , that Richard Je rger worke d at Paris Roofing but that no one there knew him by a nickname. O n redire ct exa mination, Det. Gibson testified that they he ld the defe ndant at the station for such a l o ng time because they thought he would flee . Det. Gibson stated the de fenda nt sa id he was from Te xas and ha d only been in the are a since April or May 2004.

Michelle Bunting Teff

eteller testified that she was a prostitute at that time and that she wa s

1 with c o-def

endant Heather Massengill doing laundry at Massengill’s mother’s home on D ece mber 21, 2004, when Massengill rec eived a telephone call that she said wa s a Texa s telephone numbe r. Te ff e te lle r s a id M a sse ng ill tol d h e r s he tho ug ht B e to o r K .C. wa s c a lli ng . T e ff e te lle r s a id M a sse ng ill beca me very anxious afte r she saw the telephone number on the caller i dentifica tion. She said that Ma sse ng ill tol d th e de fe nd a nt ab ou t the te le ph on e c a ll an d tha t he, too , be c a me a nx iou s. She sa id that Massengill dialed the phone number. She stated that whe n they all re turned fr om the mother’s home to Massengill’s and the de fenda nt’s residenc e, they talke d about K.C., Beto, and a feud that began the year

befor e. She said they ta lked about re taliation and a possible robbe ry. She said the-11-

two of them made some telephone calls to try to organiz e the robbery. She stated that the de fenda nt said t h a t e ith e r

Be to o r K

. C. “ h a d a

s e n te n c e , ” h a d to tu r n h im s e lf in

, a n d w o u ldn o t h a v e a ny

wea pons during the trip bec ause of the sentenc e. She said the def endant a lso stated that Beto and K.C. were probably c oming to sell drugs. She said that all three of them we re smoking marijuana

.

Ms. Teff eteller testi fi ed t h at on Dec ember 22, 2004, co-de fenda nt Massengill came to he r house and a sked her

if she wa nted a client. She said she acc epted the job be cause she nee ded money to visit her son for Christ mas. She said that she got rea dy at t he defenda nt’s home and that the three co-de fenda nts and Richard Je rger wer e there

, as well. She said that she knew from the da y befor e about the planning to rob Beto and K .C., and she said she a sked the de fend an t and co-defe ndant Massengill about her sa fety during he r appointment. S h e s ai d s he did not rec all whether the defe ndant was talking about t he robbery before they left. She admitted she had used marijuana and

mus c le re la xa nts du ri ng thi s ti me a t th e ir re sid e nc e . Sh e sa id tha t sh e and Mas sen gi ll the n le ft to meet K.C., her

client, at a ga s station f

or K.C. to see he r and a gree to the transac tion but that they bo ug ht b ull e ts at W a l- Ma rt fi rs t. S he sa id s he sp ok e to M a sse ng ill in the W a l- Ma rt pa rking lot a ga in

abo ut h e r s a fe ty d uring he r a pp oin tme nt. She sa id Mas sen gi ll t oldhe r t o li ste n to the de fe nd a nt. She said that she lef

t with K.C. and went to his hotel room. She said that while she was in the hote l room, she hea

rd Massengill’s voice at the door a few times but that she could not hear what was said. She said the def

endant then came to the door and told her “very sternly” to lea ve. She said she le ft through the back door. S he said that Masse ngill was not waiting for her there as wa s planned, that she hea rd sounds of wrestling and “banging around” in the hotel room, and that she sa w the curtains rustling. She said she hear d the def endant sa y, “I don’t want to shoot you” twice . She said she hea rd noise and then silence. S he stated tha t the co-de fenda nts then ran out the door but that she did not

reme mber whe ther they use d the front or back door. She said she ran w ith them because she did not know wher e else to go. She stated that she got into the defenda nt’s black c ar a nd that co-de fenda nt Kincaid dr ove, the de fenda nt sat in the passenge r’s seat, and she a nd Richard Je rger sat in the bac k. She said that the men got out of the c ar, w hile she re mained in the car s h ak i n g . She said she wa s “pre tty high” then beca

use she ha d smoked more marijuana while in the hotel r oom. She said, howeve r, she r emember ed the de fenda nt crying out, “I’ m penned, I ’m penne d. What a m I gonna do?” She sa id the defendant mea nt that he was going to the pe nitentiary. She said that the c ar stopped at a she d in a rural are a, that Kincaid got out, and that it was da rk. She stated that they dr ove briefly onwa

rd but that the ca

r broke down. She said she, the de fenda nt, and Richard Je rger walked

over r oads and pa stures to the def endant’ s residenc e. She said that they gather ed “a bunch of things together” and t h at s h e and Jerger went bac k to his former a partment. She said she and he w ere having an a ffa ir. S h e s ai d t hey smoked more marijuana and then r eturne d to the defe ndant’s residenc e.

On cr oss-exa mination, Ms. Teffe teller said she h ad not met Kinca id before Dec ember 22, 20 04 , a ndha d no t he ard him dis c us s a ny pla ns wi th R ic ha rdJe rg e r o r the c o- de fe nd a nts . Sh e sa id she did not see Tony K incaid talking with the others a bout the robbery beca

use he w as in Jerger ’s bedroom a t the defe ndant’s home. She said Jerge r and the defe ndant wer e talking about the r obbery in the kitchen. She said she did se e Kincaid drinking beer

. She said she hea rd K.C. close a nd lock the d o o r a t th e h o te l r o o m. Sh e s a id th a t th e li g h ts in th e h o te l li v in g r o o m w e r e on and that the lig hts ou tsi de we re on , a lth ou gh dim . Sh e sa id B e to a rrive d a ft e r s he ha d “ pe rf or me d. ” She sa id K. C., Be to, the de fe nd a nt, a nd Ki nc a id we re in the ho te l r oo m w he n s he wa s to ld t o le a ve . Sh e sa id-12-

that w hil e sh e did no t me nti on a ro bb e ry du ri ng he r p re lim ina ry he ari ng te sti mon y, it w a s b e c a us e she wa s nervous a nd had time in the interim to rec ollect the eve nts. She did not remember sa ying in the preliminary hearing tha t she did not know what the defe ndant said while in the ro o m

. She stated that at the tim e of the Dec ember 22 events, she ha d smoked two marijuana “ciga rs” a nd two or three “joints” and ha d taken two muscle rela xants. She said that she ha d been a prostitute off and

on sin c e sh e wa s f

if te e n. She a dmi tte d th a t h er the n- fi ve -y e ar- oldso n li ve d w ith he r m oth e r i n Michigan but denied tha t she did not have custody of her child. She said she moved to Te nnessee in October

2004 to change her life style. She said she ca lled a friend in Tenne ssee a fter she kept rela psing into drug abuse and tha t her now- curr ent hus band offere d her a place to stay. She said that she wa s arr ested a nd held as a material witness and that she ga ve a sta tement dated Ja nuary 13, 2005, afte r spea king with a detec tive. She stated that while she was l iving with her friend, she a lso moved in with Ri char d Jerge r. She said that in the eight months since the pr eliminary hea ring, she had
returne d to her friend and had lived with him. She stated she was diagnosed with bipolar disorder and wa s in treatment. She said she ha d been drug-f ree for thirty days. She stated that she ha d not been c harge d for a ny role in t he De cembe r eve nts and that she had not r ece ived a pr omise that she would not be cha

rged in e xchange for he r testimony. She said she was not a wa re t h at Jerge r had given a state ment in which he i m p l i ca t ed her as a c o-conspira

tor. She denied ha ving participate d in the planning of the robbery and shooting. On r e-dire ct exa mination, she stated that the def endant

sa id the vic tim s w ou ld h a ve mon e y a nddr ug s.

Monica Datz, t he assist ant di rec tor for f orensics in the Bra dley County Sheriff’s Of fice and

acc epted a s an expe rt witness in forensic scienc es and la tent fingerprint examination, testified that

no ide nti fi able pr int s w e re fo un d on eithe r ha nd gu n. On c ro ss- e xa min a tio n, sh e te sti fi e d tha t sh e did not personally exa mine the guns.

Ric ha rdJe rg e r t e sti fi e d th a t he h a d p ri or c on vic tio ns fo r a gg ra va te d b ur gla ry , th e ft , s ix

a uto mob ile bu rg la

ri e s, e sc ape , v a nd a lis m, a nd ha vin g c on tr aba nd in ja il. He a gr e e d th a t he wa s a

c o- de fe nd a nt i n th is c a se a nd fa c e d th e sa me c ha rg e s a s th e de fe nd a nt a ndthe oth e r c o- de fe nd a nts

. He state d th a t no pro mis e s had be e n mad e to obt a in his te sti mon y an d tha t he wa s n ot t e sti fy ing in the hope that he would rec eive a specific rew ard or

sentenc e for

his testimony. He explained that his decision to testify was base d on his religious c o n v er s ion and his being raise d to acc ept responsibility for his actions. He sa id he pled guilty to all of the prior char ges and a cce pted

re sp on sib ili ty f

or the m.

He testified that he met Tony Kincaid and the defendant while he worked at P aris Roofing. He sa id that he and the de fenda nt were b es t fr i en d s an d that he had lived w ith the defe ndant and He a the r M a sse ng ill . H e sa id h e c on tin ue d to wo rk wi th Ki nc a id a nd Ki nc a id’ s fathe r a ft e r he los t his ro of ing job . H e state d th a t th is c ou rt app e ara nc e wa s th e fi rs t ti me he ha d s e e n Be to V ill a lob os

. He sa id he had met K.C. once or twice a t the defe ndant’s bar becue s. He said the e ntire story bega n when the de fenda nt telephoned him while he w as wi t h his wife. He said that when the defe ndant and Masse ngill picked him up from his home

, the defe ndant told him he had a plan to rob K.C., the de fe nd a nt’ s c ou sin . H e sa id the de fe nd a nt t old him K. C. ha d eithe r m ari jua na or mon e y. He sa id this conversa tion occurr ed the day befor e the shooting. He said the defe ndant asked him to go to the Classic Suit es Hotel to look for Te xas license plates and to c all them with the results. He state d that he ca lled them afte r finding two ca rs with Texa s l icense plates and tha t they all returne d to the-13-

defen d an t ’s hom e. He said the original plan on De cembe r 21, 2004, involved his and an undeter mined person’ s going into t he hotel room with guns. He said the defendant, Masse ngill, and Michelle Bunting made telephone calls to f ind a second person. He said, howeve r, that beca use they lacke d the guns and a

second pe rson, they tempora rily gave up the idea.

Mr. Jerge r testified that the de fenda nt revived the plan later the following day. He sa id he and the de fenda nt went to Jerry Kincaid’ s home afte r ru n n i n g s o m e er rands. Hesaid that the defe ndant continued to talk about t he robbery idea and that Jer ry Kinca id said it was a stupid plan. He sa id he had c ontacted Je rry Kinc aid the pre vious day as a c andidate f or the ro b b er y

. He sa id, ho we ve r, that the de fe nd a nt’ s me nti on of the qu a nti ty of mari jua na piq ue d To ny Ki nc a id’ s in te re st. He sa id Tony Kincaid talked with Jerry Kincaid in another room and that Tony Kinc aid told them

no t to le a ve wi tho ut h im. He sa id he a sk e d Jer ry Ki nc a id fo r g un s, a ft e r the de fe nd a nt h a d a sk e d h im to do so. He sa id Je rry Kin c a id de nie d his re qu e st. Je rg e r sa id tha t Je rry K inc a id g a ve To ny Ki nc a id

a .3 80 , a lth ou gh Je rg e r s a id h e didno t se e Je rry K inc a id ha nd the gu n to th e c o- de fe nd a nt. He sa id that when they w ere getting rea dy to leave, T ony Kincaid got into the ca r and hande d the def

endant a gun. He said that Kinca id stated he wa s serious about the r obbery. Je rger s t ated that this gun lacke d bullets. He said that h e, the de fenda nt, and Kinca id went to the Kinca id’s trailer, w here Kincaid ob t ai n ed a s econd gun, a revolve r in a c amouflage case . He sa id they drove to the de fe nd a nt’ s h ome , w he re the thr e e of the m me t up wi th M a sse ng ill a ndMic he lle Bun tin g. He sa id that he , th e de fe nd a nt , and c o- de fe nd a nt K inc a id w e re in the ba c k b e dr oo m a ndthat Mi c he lle Bunting was getting rea dy for her appointm ent. He stated that the defe ndant sent Massengill to buy bu lle ts w he n s he dr ov e Mic he lle to he r a pp oin tme nt. He sa id M a sse ng ill re turne d w ith the bu lle ts and a six-pa ck of be er. H e said she se t the bullets in the livi ng room and that the de fenda nt brought them to Kincaid. Jer ger sa id that the defe ndant wore gloves to load t he guns but that Kincaid loade d the gun bec ause ye ars of roofing wor

k had sloughed off

Kincaid’ s fi n g erprints. He said he, the de fe nd a nt, a ndKi nc a id l e ft wi th the tw o gun s. Je rg e r s a id the de fe nd a nt b it o ff the e ndof

a po ta to and inserte d the re st onto the end of the gun ba rre l. Jerger

stated the de fenda nt told him he had se en thi s w or k a s a sil e nc e r i n a

mov ie . J e rg e r s a id the ne w p la n w a s f or the de fe nd a nt a nd Ki ncai d to

e nte r the ho te l r oo m. He sa id he “ wa s ou t of it. ” He sa id the de fe nd a nt dr ov e the thr e e of the m in the bl ack Mazda to the nearby C lassic S uites. He sa id he sat in the bac k seat. He said they par ked the ca r nea r a building and behind a dumpster to pre vent it from being see n. He sa id that they asked him if he wante d to go into the hotel room but that he did not acc ept and rema ined i nside the par ked

c ar. He state d tha t he the n he ard a “ c omm oti on ” a nd that he sa w the de fe nd a nt w a lk d ow n a hil l to

a no the r h ote l. H e sa id h e sa w the de fe nd a nt the n tu rnba c k. He sa id h e tr ie d to a ttr a c t Mi c he lle Bun tin g’ s a tte nti on , bu t to no a va il. He sa id Ki nc a id c a me “ hu nc he d o ve r” to the c ar a ndtol d h im
to m ov e . H e sa id he go t into the c ar af te r the de fe nd a nt an d Mic he lle Bun tin g. He c la ime d n ot t o have he ard a

gun shot.

Mr. Jerge r testified that while in the car , Kincaid dr ove, the de fenda nt sat in the passenge r seat, and he and Michelle sat in the back. He said he asked what had happene d, an d h e s ai d t he defe ndant stated, “ Tony shot K.C.” He said the defendant also said that K.C. was talking whe n he left and tha t he did not know if he died. H e said they dr ove to Tony’s brothe r’s tra iler. He said that they still ha d t h e t wo g u n s and that the box of bullets was at the de fenda nt’s home. He sa id the defe ndant gave the guns to Kincaid, who w as taking one of them back to Je rry Kinc aid. He sta ted that the defe ndant’s black Mazda was having difficulties and that they left it where it finally broke-14-

do wn . J e rg e r s a id tha t up on arrivi ng a t th e de fe nd a nt’ s h ome , h e re tr ie ve d K inc a id’ s wa lle t fr om h is be dr oo m a ndpu t it

int o a ba g w ith the bo x o f b ull ets and th e nam e tag o n th e c ov e ra lls . H e sa id Kincaid ha d told him t o destroy all of the se items. He s t at ed that they left the home and that he threw out the box of bullets at an intersec tion. He sa id he threw the gun ca se out later. H e said they ended up at the defe ndant’s home late r that night. He stated tha t at some point in the planning of the

ro bb e ry , M a sse ng ill ha d s a id s he wo uldpu nc tur e the tir e s o f the Te xa s cars to pr e ve nt K. C. a ndBe to from lea ving.

Mr. Jerge r testified that in his first statement to the police, he told a false s t o ry t o help the defe ndant. He said this story was not interna lly consistent. He claimed the statement he ma de a f ew da ys a ft e r h is a

rr e st w a s th e trutha ndthat he sp ok e wi th the of fi c e rs be c a us e his wi fe wa nte d h im to tell the truth. He said he ha d been “ saved” and did not want to lie any longer

.

On cr oss-exa mination, Jerger t es t i fi ed that Michelle Bunting was mistaken in stating they had an a ffa ir. He de nied spending the night with her. He admitted, howeve r, that he c alled “Mitchell” on Miche lle’s beha lf to find a client f or her . He sa id that Joey B lair was prese nt when h e m ad e h i s telephone call to Mitche ll. He said it wa s possible that K incaid drank more than a twelve- pack of beer that night, a nd he said he thought the others ha d been smoking marijuana outside Mitchell’s house bef

ore he arrived. He said he fabricated stories, including that he would only have to serve the balanc e of his prior se ntence , t o avoid being conside red a “snitch” in jail. He said he had no re ason to believe that Scott Parker would misstate his involvement in the planning of the

e ve nts . H e sa id M ic he lle Bun tin g h a d c a lle d s ome on e na me d “ Pimp Stic k” to a sk him to p art ic ipate in the robbery. He sa id that although the def endant c urre ntly was missing hi s front tee th, the defe ndant had his teeth the day of the s hooting when he bit the end off a potato. He de nied that he went by the nickna me “Pimp Stick.” Regarding his second stateme nt, he said he ne ver me ntioned

an armed robbe ry bec ause the detec t i v es d i d not ask him about that. He said he gave his third
state me nt a ft e r he had sp e nt a fe w d a ys in j a il a ft e r h is a rr e st. He sa id h e didno t me nti on his religious conver sion, either, during the state ment beca use he ha d not been a sked about it. He a gree d that he had be en “sa ved” a bout one month before his arre s t b u t that he did not come for war d imm e diate ly w ith his thi rdstate me nt, the on e he sa id w a s th e truth . H e a c kn ow le dg e d h e on ly c a me fo rw ardwi th this state me nt a ft e r s pe nd ing thr e e to fo ur da ys in j a il a ndinv e nti ng a se c on d s ta te me nt. He a c kn ow le dg e d th a t he didno t te ll the m th e truthso on e r aft er b e ing sa ve d. He c la ime d n ot t o know the potential sente nces he fac ed for his charge s, which wer e the same a s the defe ndant and c odefe ndants.

Bradley County Sheriff’ s Lieutenant John Collins t estified that he f ound an aba ndoned vehicle during the night of Dec ember 23, 2004. He state d that the ca r wa s a traf

fic ha zar d and that he had it towed f

rom the intersec tion of Blythewood and Har ris Creek Roads. He said the ca r had only a “drive-out tag” that did not convey any r egistration information. He said he wa lked to the ca r, looked inside, and saw a name tag bea ring the name “Da lton Lister .” He said he re membere d the

name fr o m t h e rol l call the pre vious night i dentifying the def endant a s a possible suspect in a shooting. The State rested.

Gilbert Morga n “Joey” Blair testified for T ony Kincaid. He said that he kne w Kincaid but that he did not know Heather Masse ngill. He said that he did not know Beto or K.C. b u t t h at he-15-

re c e ive d a te le ph on e c a ll fr om Ric ha rd Je rg e r, wh o ask e d him ab ou t a re dh e a de d pro sti tut e . H e sa id that the def

endant c ame to his house later and that Kinca id was drunk. He said some people w ere smoking marijuana outside his home. He said he neve r hea rd Kinca id, the defe ndant, and Richa rd Je rg e r t a lk a

bo ut a pla nn e d r ob be ry

. He re me mbe re d he ari ng the m ta lk a bo ut a re dh e a d in a

ho te l, wh o w a s th e sa me wo ma n Je rg e r ha d inq uir e d abo ut du ri ng the te le ph on e c a ll. He sa id tha t K inc a id said he would go to her . He sa id he had not see n either Tony K incaid or Je rry Kinc aid wit h the two guns. He a lso stated that he wa s “not allowed a round guns.”

On cr oss-exa mination, Joey Blair testified that the def endant a nd Tony Kinca id shot guns behind his house but not around him or his c hildren. He did not reme mber giving a sworn statement that the def

endant ha d pistols and that he would be outside with them while they we re shooting.

Chris B a xte r w a s call ed as a wi tne ss b y T on y K inc a id. He a c kn ow le dg e d k no wi ng Be to Villalobos, the defe ndant, K.C., and He ather Massengill. He denied knowing Kincaid. He sa id he knew that Beto or K .C. would come in Dec ember to Tennesse e, although he sa id he did not know the sp e c if ic da te

. He sa id tha t he kne w Bet o en joy e d ha ng gli din g, bu t th a t th e ha ng gli din g f a c ili ty in the are a close d in September or O ctober , and that it would not have be en open in Dec ember . He said he a nd Beto had not discussed plans to go hang glidi ng in Dece mber. He said that he did not

owe Beto any money, that he “sort of” kne w why Beto had c ome to Tenne ssee, a nd that it was not be c a us e he ow e d h im m on e y. He a lso state d D e rric k H art lin e didno t ow e Be to m on e y. On c ro ssexamination, he denied that either Beto or K.C. had e ver give n him money to purchase drugs. Afte r being granted use immunity, he agree d that he re ceive d marijuana from Beto or K.C. He said that the y w ou ld br in g themari jua na , w hic h h e wo uldse ll a ndthe n p a y th e m th e pr oc e e ds , mi nu s h is share of the money.

Jerry Kincaid wa s called by Tony K i n ca i d

. He testified that he saw his cousin Tony on a da ily ba sis . H e sa id h e kn e w the de fe nd a nt, Ric ha rd Je rg e r, a nd Jo e y Bla ir

. He sa id se ve ra l pe op le

wer e at his home on De cembe r 22, 2004. He said he spoke w ith Det. Felton about a phone call he

rec eived. He said that he a nd Tony Kincaid were drunk and that afte r the phone call occ urre d, the defe ndant and Jerger came

. He denied t he guns involved in the crime wer e his or Tony’s guns. He said he ha d not seen Tony with the guns. On cross- examination, he a cknowledge d his bad memory. He sa id that his ga the ri ng wa s loud a nd that he co uld no t hea r wh a t th e pe op le inv olv e d in thi s c a se had bee n saying.

David Rigsby testified that he drove to T ennesse e on Dec ember 23, 2004. He sa id he thought the name of

the hotel was Classic Suites. He sa id his wife went inside the hotel to register while he waited in the truc k. He sa id their room was ne xt door to the room involved in the pre sent ca se. He said that he saw one Hispanic man leave the hotel room and tha t a large Afric an-A merica n man filled the entire doorwa y when he hung his arms from the door fra me. He said the first man looked ba ck

a t th e larg e r m a n, wh o sai d, “ Com e ba c k in the ro om. W e ’l l set tle it l ike me n. ” He sa id h e a ndhis wife pa rked the ir ca

r and be gan unloading their ba ggage a nd dogs i n t o t h e ro o m next to the two men’s room. He said the first man re turned to the room. He said that he saw two other men a few doors down but that they had disappea red by the time he turne d around holding some luggage . He said that inside their hotel room a f ew minutes later

at appr oxim at el y 1 0 : 0 0 p

. m., he and his wife-16-

hear d a fr aca s next door. He said the wa lls were sha king. He said his wife took the dogs to the hotel of fi c e to i nq uir e abo ut a no the r r oo m.

On c ro ss- e xa min a tio n, Rig sb y tes tif ie d tha t the larg e r ma n ha d a ca lm de me a no r. He sa id this smaller man ca lled 9-1-1. He said that he did not know at the time the large r man ha d been shot and that this man was sitting in a chair w hen he sa w him.

Rhonda Rigsby te s ti f

ie d th a t s h e a n d h e r

h u s b a n d w e r e tr a v e li n g to Fl o r id a w h e n th ey stopped at the Classic S uites to spend t he night

. She said she heard a loud a rgument in the room next door. She said that she walked to the hotel office to inquire about moving to another r oom but that sh e sa w a wo ma n in the ro om nex t do or “bei ng sh oo e d a way” fr om the fr on t do or . Sh e sa id this
woman appr oache d her in the parking lot a nd asked w here a gas station wa s. She said she pointed out the gas station she and he r husband ha d passed and walked to the office . She said this woman’s demea nor wa s calm.

A jury convic ted the def

endant of all four c ounts. The jury convicted Tony Kinca id of two attempted aggr avate d robberies but could not rea ch a verdic t for the char ges of felony murde r and

con s p ir a c y to c o mm it a g g r a v a te d r o b b e r y

. H e a th e r M a s s e n g il l w a s c o n v ic te d o f f a c il it a tion of fe lon y mu rd e r, tw o c ou nts of fa c ili ta tio n o f atte mpt e d a gg ra va te d rob be ry , andc on sp ir a c y to c omm it
aggra vated r obbery.

The de fenda nt contends (1) that the evidenc e wa s insufficient to convict the defe ndant of the char ged off

enses; (2) that the trial court erre d by sever ely limiti ng the cr oss-exa mination of Richard Jerge r re garding his criminal recor d, which t h e d ef en dant claims wa s substantial and would have aff ecte d the jury’s assessment of hi s cre dibilit y as a pr osecution witness; (3) that the trial court e rre d by failing to suppress a r ecor d ed s t at em ent of the de fenda nt when the original rec ording was intentionally destroyed and lost by the de tective who ha d possession of it; and (4) that the t rial court

err ed in not providing Offic er Felton’s stateme nt to the Tennesse e Burea u of Inv es t i g ation

conce rning the l ost and destroyed origi nal re cording of the defe ndant’s stateme nt taken the night of the homicide. Although re sponding to each of the def endant’ s issues, the State initially asserts that the def endant has waived his issues exce pt sufficie ncy bec ause he failed to file a timely moti on for new tria l and that a plain e rror analysis is inappropria te in this case.

The re cord r efle cts that the def endant’ s judgments w ere enter ed April 12, 2006. Howeve r, the fi rs t of tw o mot ion s fo r n e w t ri a l w a s f ile d o n M a y 1 7, 20 06 , o uts ide the thi rt y- da y f ili ng lim it. Se e Te nn . R. Cr im. P. 3 3( b)

. A c ou rt c a nn ot e xte ndthe tim e fo r the fi lin g o f this mot ion . T e nn . R. Crim. P. 45(b)(3). “A trial judge does not have jurisdiction to hear a nd determine the merits of a motion for new tria l that has not been timely filed.” St ate v. Ma rtin, 940 S.W.2d 567, 569 (Tenn. 1997). In the prese nt case , the trial court held a hea ring on the motions and denied the motions for new tria l in orders da ted Novembe r 6 and 7, 2006. W e note the tr anscript for the hea ring was not included in the re cord. Although the t rial court considere d the m otions, “the trial judge’s err oneous consideration of ruling on a motion for new trial not timely filed

. . . does not validate the motion.” Id. at 569. By failing to file a timely motion for new t rial, t he defenda nt has waive d his issues on

app e a l othe r tha n s uf

fi c ie nc y o f the e vid e nc e . Stat e v. Box le y, 76 S.W .3 d 381 , 389 -9 0 ( Te nn . Crim. App. 2001). See State v. Martin, 940 S.W.2d at 569 (stating that fa ilure to file a timely motion for-17-

ne w t ri a l “ de pr ive s the app e lla nt of the op po rtun ity to arg ue on app e a l a ny iss ue s th a t w e re or sh ou ld ha ve be e n p re se nte d in the mot ion fo r ne w tr ia l.” ). Al so , we c on c lud e that pla in e rr or do e s n ot e xis t. Because this court waived the filing of the notice of appe al in the intere st of justice in a May 4, 2007 order , the issue of suff

iciency is prope rly befor e us. See T.R.A.P. 4(a ).

The de fenda nt contends that the evidence was insuffic ient to convict him of all the off enses beca use (1) the jury could not de cide rega rding the self-de fense claim by the shooter, Tony K incaid, to char ges of c onspiracy to c ommit aggravate d robbery an d fe l o ny murder, ye t it convicted the defe nd ant of both off

enses a nd (2) the e vidence prese nted to convict the de fenda nt came f rom

e ye wi tne sse s w ith “ muc h to los e ,” wh ile te sti mon y re ga rd ing the de fe nd a nt’ s the ory o f a fi gh t c a me from neutr al parties. The State re plies that the evidence presented at trial was suff icient to convict the def endant of the cha rged of fense s beyond a r easona

ble doubt. It also asserts that the fac t the jury did not reac h a ver dict as to a c o-def endant is i rr el evant to conside ration of the suf ficienc y of the evidenc e aga inst the defenda nt.

Ou r s ta nd ardof

re vie w w hen th e su ff

ic ie nc y o f the e vid e nc e is q ue sti on e d o n a pp e a l is “whe ther, a fter vie wing the evidenc e in the light most favorable to the prosec ution, any rational trier of fac t c ould ha ve found the essential e lements of the c rime beyond a rea sonable doubt.” Ja ckson

v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) . T his me a ns that w e ma y n ot r e we igh the e vid e nc e , b ut m us t presume that the jury has re solved all conflicts in the t estimony and drawn all reasonable infere nces from the e vidence in favor of the S tate. See S tate v. S heff ield, 676 S.W.2d 542, 547 (Tenn. 1984) ; State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)

.
Pertinent to this case, fi rs t d eg re e felony murder is defined a s: “A killing of another committed in the perpe tration of or attempt to perpe trate . . . r obbery” when the pe rpetrator had the inten t t o c o mm it

r o b b e r y

. T

. C. A

. § 3 9

- 1 3

- 2 0 2 ( a ) ( 2 )

, ( b ) ( 2 0 0 3 )

. T h e e v id e n c e r e f le c te d th a t the defe ndant entered the hotel room of K.C. and Beto with Tony Kinca id with the intent to rob them of their money. T he evide nce show ed the de fenda nt and Kinca id discussed the p l an n i ng of the robbery, obtained we apons to use during the robbery, determined the victims’ hotel, and announc ed to the victims that they were there to rob them. The e vidence showed that the de fenda nt conce ived the plan bec ause he knew the two me n would not be armed. The e vidence showed that Kinc aid shot K.C. fatally during their struggle while the def endant f ought with Beto loudl y enough to shake the walls of an a djoining hotel room. The evidence showed that the robbery pla n did not succee d and that K.C. died from the bullet wound. I n one o f h i s claims, the def endant a sks us to reweigh the

c re dib ili ty o f w itn e sse s, a ta sk we c a nn ot p e rf

or m. S e e Sta te v. She ff

ie ld, 67 6 S. W .2 d a t 54 7; S ta te

v. Ca bb a ge , 5 71 S.W .2 d a t 83 5 ( Te nn . 1 97 8) ; T .R. A. P. 3 6( a ) ( “ re lie f ma y n ot b e gr a nte d in
contra vention of the provinc e of the t rier of fac t”). As to the defendant’s other claim, we r epeat that

“ ve rd ic ts a s be tw e e n tw o or mor e de fe nd ants tr ie d tog e the r in a c ri min a l c a se ne e d no t de mon str a te rational c onsistency .” State v

. Ha m ri ck , 688 S.W .2d 477, 481 (Tenn. Crim. App. 1985) (quoting Pul le y v . St a te , 5 06 S.W .2d 16 4, 16 9 ( Te nn . Crim. Ap p. 19 73 )) . T he de fe nd a nt i s n ot e nti tle d to relief

. Attempted aggr avate d robbe ry i s t he “intentional or knowing theft of pr operty fr om the person of another by violence or putting the person in fe ar” “[a ]cc omplished with a deadly we apon” or “[ w]he re the victim suffe rs serious bodily injury.” T.C.A. §§ 39-13- 401(a) , -402(1) , (2) ( 2003).-18-

A p e rs on c omm its “ c ri min a l a tte mpt ” by a c tin g “ wi th i nte nt t o c omp le te a c ou rs e of a c tio n o r c a us e

a re sult that would constitut e the of fense , . . . and the c onduct consti tutes a substantial step towar d the c omm iss ion of

the of fe ns e .” T. C. A. § 3 9- 12 -1 01 (a )( 3) (2 00 3) . T he de fe nd a nt a nn ou nc e d to K. C

. and Beto his purpose to rob the m. He dre w his loaded gun a nd demande d their money. A struggle ensue d among the four men, during which the defe ndant was una ble to car ry aw ay any of the victims’ money. The e vidence ref lects, howe ver, tha t he told Tony Kincaid to shoot Beto and that he sh ut the do or Be to ha d op e ne d fo r ou tsi de rs to s e e wh a t w a s o c c ur ri ng ins ide the ho te l r oo m. W hil e the de fe nd a nt a lle ge s that on ly a fi gh t oc c ur re d, we mus t pr e su me that the jury r e je c te d th is claim and plac ed him, arme d, at the victims’ hotel room in view of its ver d i ct co nvicting the defe ndant. He is not entitled to relief from these convictions.

To convict a defe ndant of conspirac y to commit aggra vated robbery, the jury must find (1) that the def

endant e ntere d into an agre ement with at lea st one other pe rson to comm i t aggra vated robbery, (2) that e ach of the part i es t o t he conspira cy had the intent to commit t he off ense of
aggra vated r obbery, ( 3) that ea ch party acting for the p u rp o se of pr omoting or facilitating the
aggra vated r obbery ha d agre ed that one or more of them would enga ge in the conduc t constituti ng the offe nse of a ggravated robbe ry, and (4) that one of the parties to the conspirac y committed an
overt act in f

urthera nce of the conspirac y. See T.C.A. § 39-12-103 (2003). The evidenc e re flec ted that the defe ndant wanted to r ob Beto and K.C. and that he told others about his plan. He se lected the victims beca

use he knew they would be unarmed, although they would be traveling with money and drugs. The evidence showed he, Heather Massengill, and Richar d Jerge r sea rche d for a nother
pa rt y to ro b the vic tim s a lon g wi th the de fe nd a nt. He a nd To ny Ki nc a id ob ta ine d th e we apo ns

. He a the r M a sse ng ill a ndMic he lle Bun tin g w e nt t o th e W a lma rt wh e re Ma sse ng ill pu rc ha se d b ull e ts to use in the robbery. The e vidence showed that the de fenda nt and Kinca id were chosen to be the

ro bb e rs , th a t th e y e nte re d the vic tim s’ ho te l ro om arm e d, a nd that the y a nn ou nc e d th e ir pu rp os e to Beto and K.C. The de fenda nt is not entit led to relief

.

Ba se d o n th e fo re go ing a ndthe re c or d as a wh ole , we a ff ir m the jud gme nts of

the tr ia l c ou rt

.

___________________________________ JOSEPH M. TIPTON, PRES IDIN G JUDGE