IN THE CRIMINAL APPEALS COURT FOR THE STATE OF TENNESSEE
MIDDLE DIVISION AT NASHVILLE
STATE OF TENNESSEE,
Plaintiff,
v.
SHANTERRICA MADDEN,
Defendant.
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)
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)
)
)
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Case No. M2012-02473-CCA-R3-CD
On Appeal from the Circuit Court of
Rutherford County, Tennessee
Case No. 66473
Honorable Don Ash
_____________________________________________________________________________
APPELLATE BRIEF TO THE TENNESSEE COURT OF APPEALS
_____________________________________________________________________________
JOE MASON BRANDON, JR.
Attorney for Appellant
119 North Maple Street
Murfreesboro, TN 37130
615-890-3656
BPR# 16601
LAURIE Y. YOUNG
Attorney for Appellant
119 North Maple Street
Murfreesboro, TN 37130
615-890-3656
BPR# 18471
Oral Argument Requested
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TABLE OF CONTENTS
STATEMENT OF ISSUES PRESENTED FOR REVIEW
TABLE OF AUTHORITIES
STATEMENT OF FACTS
ARGUMENT
CONCLUSION
CERTIFICATE OF SERVICE
ISSUES PRESENTED FOR REVIEW
1)
Whether the trial court committed plain error by failing to recuse itself;
2)
Whether juror questions, including but not limited to the method imposed and
employed by the trial court denied your Appellant her constitutional rights;
3)
Whether there was sufficient evidence to support the resulting conviction; and
4)
Whether the sentence was excessive, in light of the facts and evidence contained,
within the record as a whole.
2
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
Fifth Amendment to U.S. Constitution ..............................................................................44
Amendment to U.S. Constitution ...........................................................................47, 48, 52
Fourteenth Amendment to U.S. Constitution ....................................................................47
Article I, Section 9, Tennessee Constitution ................................................................45, 49
Tenn. Const. Article VI, Section 11 ............................................................................ 42, 44
Article I, Section 17, of the Tennessee Constitution .......................................................44
CASES
Bailey v. Blount County Bd. Of Educ., 303 S.W.3d 216, 239 (Tenn. 2010) ..................44
Branch v. State, 469 S.W.2d 533, 534 (Tenn. Crim. App. 1969) ................................53, 54
Byrge v. State, 575 S.W.2d 292, 294 (Tenn. Crim. App. 1978) ..................................53, 54
Chanbers v. Mississippi, 410 U.S. 284,295 (1973) ...........................................................39
Durham v. State, 188 S.W.2d 555, 558 (Tenn. 1945)........................................................49
Johnson v. Georgia, 507 S.E.2d 737, 742 (Ga. 1998)........................................................51
Kansas v. Hays, 883 P.2d 1093, 1102 (Kan. 1994) ...........................................................50
Lofton v. Lofton, 345 S.W.3d 913 (Tenn. 2009) .........................................................28, 44
Logan v. State, 131 Tenn. 75, (1915) ................................................................................46
Minnesota v. Costello, 646 N.W.2d 204, 213 (Minn. 2002) .............................................51
Raynor v. State, 447 S.W.2d 391, 393 (Tenn. Crim. App. 1969) ....................................53
State v. Benson, 973 S.W.2d 202, 205-206 (Tenn. 1998) .................................................44
State v. Evans, 108 S.W.3d 231,237 (Tenn. 2003) ............................................................39
State v. Harris, 989 S.W.2d 307, 314 (Tenn. 1999) ...........................................................38
State v. Moss, 727 S.W.2d 229 (Tenn. 1986) ....................................................................55
State v. Powers, 101 S.W.3d 397 .......................................................................................38
State v. Pendergrass, 13 S.W.3d 389,392-393 (Tenn. Crim. App. 1999) ........................39
State v. Casper, 297 S.W.3d 676, 683 (Tenn.2009)...........................................................39
State v. Crawford, 470 S.W.2d 610,613 (Tenn.1971) .......................................................40
State v. Muse, 967 S.W.2d764, 3 (Tenn.1998) ............................................................45, 47
United States v. Collins, 226 F.3d 457, 461 (6th Cir. 2000) .............................................50
United “States v. Gagnon, 105 S.Ct. 1482, (1985) ............................................................46
United States v. Thompson, 76 F.3d 442, 448 (2d Cir. 1996) ...........................................50
Watson v. State, 166 Tenn. 400, (1933) ..........................................................................45
Wharton v. Mississippi, 734 So. 2d 985, 990 (Miss. 1998)...............................................51
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JUDICIAL ETHICS OPINIONS
Judicial Ethics Committee issued an Advisory Opinion, No. 12-01, on
October 23, 2012 ................................................................................................................40
Maryland Judicial Ethics Committee, Opinion Request Number: 2012-07 .....................42
2011 WL 7110317 (MA Sup. Jud. Ct. Comm. Jud Eth.) ...................................................42
Judicial Ethics Opinion 2011-03, 2011 OK JUD ETH3 (07/06/2011) ..............................43
Florida Supreme Court Judicial Ethics Advisory Committee Opinion
Number: 2009-20 ..............................................................................................................43
SUPREME COURT RULES
Tennessee Supreme Court Rule 10, Canon 1, Rule 1.2 .....................................................40
Rule 2.11, Comment [5] ...................................................................................................41
STATUTES
Tenn. Code Ann. 39-13-202 ................................................................................................6
RULES OF PROCEDURE
Rule 13(e) of the Tennessee Rules of Appellate Procedure ..............................................39
Rule 24.1(c) of the Tennessee Rules of Criminal Procedure .................................26, 49, 50
Rule 43(a) of the Tennessee Rules of Criminal Procedure ................................................47
MISCELLANEOUS AUTHORITIES
3 Case W. Reserve J.L. Tech. & Internet 66, Case Western Reserve Journal
of Law, Technology &the Internet, 2012...........................................................................44
Black’s Law Dictionary (9th ed. 2009) .............................................................................49
11 Tenn. Prac. Crim. Prac. & Procedure Section 32:115 ..................................................55
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STATEMENT OF CASE
This matter begun from a procedural standpoint on March 2, 2011, when
Shanterrica Madden, hereinafter referred to as Appellant, is alleged to have committed the
offense of first degree murder, against Clantina Stewart, hereinafter referred to as decedent. (VI,
p 1-3). From a factual standpoint, this case began in August 2010, when Raiders Crossing
placed two (2) young girls from Memphis, in the same apartment. (XVI, 47, 24-48, 5)
Ms. Bickford, general manager at Raiders Crossing, described how her facility solicited minors
for residency as follows: “[w]e send out direct mailers through the campus. We obtain the
incoming freshman list and we send out direct mailers.” (XVI, 54, 18-25). Further, she agreed
that Ms. Madden was a minor when she was solicited and when she signed the lease. (XVI, 55,
9-15). That as a result of the age of Ms. Madden, her mother was required to sign the lease with
her. (XVI, 55, 18).
Ms. Bickford was in the process of testifying that Ms. Stewart first became a resident in
June of 2010 and originally had a roommate by the name of Abby Cook. (XVI, 55, 19-56, 1).
Wherein the following occurred, during the trial,
MR. BRANDON: okay. And was there any reason she -- MR. NEWMAN: Your
Honor, can we approach, please? THE COURT: No, sir. You can go ahead and make
your objection. MR. NEWMAN: I object to the relevancy. THE COURT: Okay.
Sustained. Next question. MR. BRANDON: Well can I respond? THE COURT: No,
sir. I’ve already ruled. And the reason for my ruling is her previous roommate is not
relevant to this case. MR. BRANDON: Well, the reason I would say – if it please the
Court for me to respond? Is that okay? THE COURT: Sure. Unless you want to talk
about the facts. MR. BRANDON: Yes, sir. It’s about prior testimony. THE COURT:
Okay. I’ll sustain the objection then. Next question. (XVI, 56,2 -56,22).
Ms. Madden was not allowed to talk about why Ms. Stewart had been thru multiple roommates.
The last few months, weeks, and days although leading to Spring Break for most, altered
in a most horrific manner, the lives of two (2) very young girls, their families, and their loved
5
ones. Ms. Stewart was a star basketball player and attending M.T.S.U. on a basketball
scholarship. She was a Junior and Ms. Madden whom was attending M.T.S.U. on the Hope
scholarship, pursuing a major in political science and criminal justice with a minor in pre-law,
was a freshman. (XVIII,20,7-10). She dreamed about becoming an attorney. (XVIII,20,13).
She had been on the honor roll since she was in kindergarten. (XVIII,196,14-15). She grew up
in Memphis, Tennessee and attended Memphis Central High School where she graduated high
school with a 3.5 GPA. (XVIII,18,11-23). Suddenly, two (2) days before Spring Break dreams,
visions, goals, and life all came to a screeching halt for two (2) little girls, their families and
loved ones, as they knew it the day before.
On March 3, 2011, the State took out a warrant for the charge of first degree murder in
violation of Tenn. Code Ann. 39-13-202. On March 11, 2011, the State and Appellant agreed to
a $100,000.00 dollar bond being set. (VI, p 2) A preliminary hearing was had in General
Sessions, on March 24, 2011; wherein, the charge was bound over to the grand jury. (VI, p 2).
The grand jury met for the July Session of 2011 and returned a two (2) count indictment for the
offenses of first degree murder and now the additional charge of tampering with evidence, Tenn.
Code Ann. 39-13-503. (VI, 3-4). The above resulting in an arraignment date being set for July
18, 2011, in Circuit Court. (VI, 1-5). This is when your Appellant would gingerly submit to this
Honorable Court, that this case was destined to plain error.
That in this cause there was a quantity of Motions filed by both the State and the Defense.
As opposed to going through and specifically identifying each Motion, filed by each party, your
Appellant would limit this portion of her brief to address the ones where she feels there are
substantial grounds for plain error and accordingly a new trial. On November 17, 2011, your
Appellant filed a Motion To Disallow Juror Questioning And Notice of Objection To The Same.
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(VI, 21-32). That your Appellant filed a Motion For Recusal on December 12, 2011, requesting
the trial court judge to recuse itself from the proceedings (I, 55-59 and VI, 55-73).
Also on December 12, 2011, your Appellant filed a Motion For Change Of Venue.
(VII,74-III, 273). It was on this same day that the trial court filed an Order sua sponte
wrongfully accusing counsel for Appellant as follows:
Mr. Brandon gained access to the Court’s private Facebook account and printed the
names of individuals listed as “friends”. While the Court acknowledges limited privacy
as a public official, the attachment of Exhibit J obviously violates the privacy of the
individuals listed. This list also includes the Court’s family members, as well as their
pictures, which creates a security risk. Exhibit J is placed under seal and access is limited
to the attorneys and their respective parties. Further, publication is prohibited unless
granted by the Court.” (III,274.).
Counsel for Appellant vehemently denies any wrong doing. Counsel’s legal assistant did
go to the then public, later set to private, during the middle of the proceedings, Facebook page of
the trial court as a result of questions raised regarding this case and upon request of Appellant
and printed the same, which was filed as the above referenced Exhibit J. (III,274). Said Motion
raised issues and attached written exhibits/evidence to substantiate that the trial court had way
too deep of a connection with Middle Tennessee State University, the athletic program,
specifically the women’s basketball team including too much temperament, than to be in a
position to try this case. (III,274,Exhibit J).
On February 13, 2012, the trial court entered an Agreed Stipulation of Fact that provided
the Twitter information of both Ms. Madden and Ms. Stewart was self-authenticating and that the
parties could rely on the Facebook records as evidence without the need of an expert. (III,393).
One of the major pieces of evidence in this case was the Twitter account of Ms. Stewart. During
the testimony of Ms. West and right before the Twitter information was introduced, the trial
court read the following jury instruction,
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You’re about to be presented evidence in the form of postings taken from a Twitter
account of Tina Stewart. These postings are being offered for the sole purpose of tending
to establish a timeline of events relevant in this case. The postings, which are the words
and phrases in the postings, are hearsay. Hearsay evidence is not recognized as reliable
evidence as hearsay is an out of court statement offered in court and not subject to cross
examination. Additionally, the person who the postings are attributed to is not a witness
in this case and you cannot examine the credibility of the person who made the posting.
The postings are in the form of writings and as such you are not able to see or hear the
demeanor of the person who made the postings. Therefore, you are instructed that you
are to consider the postings for the sole purpose of whether or not they tend to establish a
timeline of relevant events in this case. You are further instructed that their only
relevancy in the case is whether or not they tend to establish a timeline of events and you
are not to consider the postings for any other purpose.” (XVII,198,22-199,22).
Detective West testified that that at 5:33 p.m., two minutes before the call to the
police, Ms. Stewart tweeted, “I really hate this bitch. My roommate that is.” (XVII,203,15-18).
At 5:39 p.m. Ms. Stewart tweeted, “come on, police, so y’all can bust her ass.” (XVII,205,4-6).
“5:40 p.m. March 2nd. It’s Tina Marie Stewart posting, that bitch snitched on me. Payback is a
bitch.” (XVII,205,8-10). At 5:44 p.m. Ms. Stewart posts, “[t]hat Ho snitched so I called the
Popo’s because that bitch smoking weed. Muhaha evil laugh.” (XVII,205,16-22). “The next
one is at 5:53 p.m. on March 2nd. “This is Tina Marie Stewart replying…well, they stopped now.
Shit. Damn. Police took too long.” (XVII,206,1-5). Again, at “5:55 p.m….replying to …
@checkG2Woods… well, that bitch getting stitches.” (XVII,206,7-10). “At 5:58 p.m….Stewart
is posting police is here. Yes. This bitch is lying.” (XVII,206,15-17). At “5:59 p.m. … Stewart
posting this bitch gone be too hot.” (XVII,206,19-20). At 6:01 p.m., Ms. Stewart posted, “I
hope he finds some. Please, please. LOL.” (XVII,206,22-23). Said tweets were marked as
Exhibit 171. (XVII,207,9). The jury was denied the opportunity to explore theories with this
particular witness. Volume XVII, pages 185,4 thru 225,24 cover the testimony of Detective
West. This is important because as you can see the method of getting jurors to ask questions was
abandoned. It is wholly unknown as to whether any juror had any questions or theories to
8
explore, with this Detective.
On May 11, 2012, the trial court entered an Agreed Order providing that paragraphs 2231, of your Appellants Motion were relevant and admissible. (IV,465). Specifically, these are
the “tweets” of Ms. Stewart, in the minutes and seconds leading up to her death, referenced in the
preceding paragraph. The State filed a Motion to Admit and Notice of intent to introduce specific
tweeter information of Tina Stewart which establishes the time the tweet was posted, on April
30, 2012, as referenced in the preceding paragraph. (IV, 443-446). (IX,476).
That this case was tried over several days ultimately resulting in a conviction for second
degree murder and tampering with evidence, on May 14, 2012. That on the 31st day of October,
2012, the trial court entered an Order Denying Defendants Motion For New Trial. (VV, 490531). The trial court sentenced Appellant to twenty-five (25) years on the second degree murder
conviction and four (4) years consecutive on the tampering with the evidence conviction. (VIV,
476-477).
STATEMENT OF FACTS
Appellant testified that on March 2, 2011, she was eighteen years old and a freshman in
her Spring semester at Middle Tennessee State University. (XVIII,18,2-7). That other than her
short period of time at Raiders Crossing, she had always lived at home with “[m]y mom, my dad,
my sister and brother.” (XVIII,19,3). Ms. Madden stated that she learned of Raiders Crossing
by receiving flyers in the mail, while she was still a minor. (XVIII,20,18). That your
Appellant’s mother, Ms. Shantel Madden was required to also be on the lease due to Ms.
Appellant being only seventeen, at the time she was solicited. (XVIII,20,22-25). That she
recalled moving in Raiders Crossing in August, 2010, during the Fall semester, when her parents
came and set up her belongings. (XVIII,21,4-7). She did not have a car in Murfreesboro,
9
thereby leading her to walk to get around mostly, M.T.S.U. being a “five or ten minute walk”,
but also, she had made a friend by the name of Karlisha that would provide some transportation.
(XVIII,21,8-17).
Appellant originally thought she was going to have a different roommate as that was the
information conveyed by Raiders Crossing, but later learned upon moving in that Ms. Stewart
would be the roommate. (XVIII,21,7-25). That in August, when the girls were placed together,
it was soon realized that they were both from Memphis, Tennessee, as Ms. Madden recognized
Ms. Stewart, from playing basketball at Memphis Central. (XVIII,23,12-18). At this point in
time, Ms. Madden characterized their relationship as, “we got along well.” (XVIII,23,21). “We
got along. We talked. We laughed. It was a good relationship” in the fall semester; wherein,
each of the girls would go into the others room. (XVIII,28,2-17).
Ms. Madden went back home with her parents over Christmas break.
(XVIII,30,14-16). That she returned to M.T.S.U. in mid January for the beginning of the spring
semester and was excited to “get back to class and get back to schooling….” (XVIII,30,23-25).
Appellant testified that everything was still going fine between herself and Ms. Stewart until
Appellant told her mom about Mr. Anuna being there every day. (XVIII,31,3-16). Appellant
had also revealed to her mother that she had come out of the bathroom with a towel wrapped
around her when Mr. Anuna came in without warning and without Ms. Stewart and another
occasion wherein Mr. Anuna came in without warning without Ms. Stewart when she was
walking around in very little clothing. (XVIII,32,4-25).
That Ms. Shantel Madden (the mother of Shanterrica) testified that she and Frank
Madden, the father of Shanterrica, were high school sweethearts. (XVIII,181,1-7). That Ms.
Shantel Madden is employed at Regional Medical Center, as a medical assistant, and has been so
10
employed for the last twelve years. (XVIII,181,14-25). That Shanterrica was the first person in
their family to ever attend college. (XVIII,181,20-23).
Ms. Shantel Madden testified as to Mr. Anuna, boyfriend of decedent, “[w]e never just
met. We saw him and spoke to him. When we went the first time we was bringing her back
from break. Him and Ms. Stewart was laying on the couch covered up. And that kind of got to
Frank. And he asked me who was that. And I was like I don’t know. I thought it was just
Shanterrica and Ms. Stewart in this apartment.” (XVIII,184,15-21). Then in January 2011, Ms.
Shanterrica Madden relayed to her mom some of the problems surrounding Mr. Anuna and him
making her feel uncomfortable. (XVIII,186,14-20).
Ms. Shantel Madden described the day she called the office of Raiders Crossing to see
why Raiders Crossing was permitting a man not on the lease to cohabitate with her daughter;
wherein, Jessica, at Raiders Crossing told Ms. Madden that since Shanterrica was now eighteen,
they could no longer speak with her. (XVIII,187,21-25). In turn, Ms. Shantel Madden
responded, “[w]ell, I’m on the lease also. So I wanted to talk to her about it since I was on the
lease and I was paying the bill, the rent. And she said she couldn’t – she refused to talk to me.
But after a while she asked what was the problem. And I told her about Mr. Anuna being there
all the time without Ms. Stewart.” (XVIII,188,3-9).
“I texted Shanterrrica because she was in class and told her to go talk to the manager
when she got out of class. And she called me after she got out of class and asked me why did I
do that, that she was going to talk to Tina herself.” (XVIII,188,13-19). Appellant testified, “I
kept telling her don’t call it because I wanted to handle it myself. I didn’t want problems with
Tina. And I later found out that she did call the office that day.” (XVIII,31,16-20).
That upon Ms. Madden arriving at Raiders Crossing after getting out of class, Jessica,
11
with Raiders Crossing, told Ms. Madden that they couldn’t get a hold of Ms. Stewart, therefore,
they had left her a voice message. (XVIII,34,6-10). “I asked her could we just have a group
meeting instead of me talking to Tina by myself because I didn’t want any problems with her
while I was alone with her.” (XVIII,34,12-15). That Jessica responded as follows according to
Appellant, “she advised me that she would try to call Tina back and see could she reach her.
And that she would call me if she did. And she told me to try to talk it out with her while I was
there.” (XVIII,34,17-20).
Appellant testified her next contact with Ms. Stewart after leaving the office was later
that day after she got out of her last class and she was entering the apartment and Ms. Stewart
was leaving. (XVIII,35,10-20). On this particular day, it was odd, because for the first time but
not the last time, Ms. Stewart left “her music blaring very loud.” (XVIII,35,23-25). That upon
Ms. Stewart returning to the apartment, she had Mr. Anuna with her; wherein, Ms. Madden
asked her could they talk, to which Ms. Stewart told Mr. Anuna to turn the music down.
(XVIII,36,13-17). “I told her that I didn’t want it to seem like she couldn’t have company
because it was her place. But at the same time I felt uncomfortable with him being there every
single day. And she told me that they would go back to splitting it up. Some days she’d be with
him and somedays he’d be with her.” (XVIII,36,20-37,1). Ms. Madden continued, “[t]he next
day K.C. did not stay. He didn’t stay that day or the day after that. But that Monday it went
back to the same routine. And I decided to not stay in the apartment.” (XVIII,37,8-11). That
Ms. Madden would return periodically to get clothes, food, and sometime stay the night.
(XVIII,37,21-22).
As to the day the police were called, Appellant recalled that upon the officer coming into
the apartment, Ms. Stewart came out and “smirked” at her like “she was happy that he was
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there.” (XVIII,46,17-21). Subsequent to allowing the officer to search, Ms. Madden took the
trash out and returned to the apartment; wherein, she stated “my first instinct was to get Renee
and leave, but I didn’t want to leave the situation like that. So I went to talk to Tina.”
(XVIII,47,17-19). “Tina opened the door as soon as I knocked on it….I asked Tina why did she
call the police officer on me instead of talking to me like she was because we came to an
agreement the last time that the office was called on her that we would talk about our issues
instead of reacting first. And she brought back up the time the office was called on her.”
(XVIII,48,4-21).
The girls continued to argue verbally and the same was escalating; wherein, Ms. Madden
turned to leave and was pushed by Ms. Stewart. (XVIII,48,24-49,3). That when she turned back
around from being pushed, the two girls started fighting. (XVIII,50,4). During the fight Ms.
Madden recalls pleading with Ms. Stewart to let her go, “[s]he kept hitting my head.”
(XVIII,50,11). Further, that “[s]he was slinging me around the room. She was pulling my hair.
She was beating me on the top of the head. And she wasn’t listening to my plea.” (XVIII,52,35). Further, during the course of the above, Appellant testified that her bra was ripped which was
not separated/ripped, prior to the fight on March 2, 2011. (XVIII,52,6-20).
That during the fight, after trying to abandon the fight, Ms. Madden picked up a knife
from the bed of Ms. Stewart and stabbed her with it in an effort to protect herself. (XVIII,54,211). “After I stabbed her she fell to the ground….” (XVIII,57,13-24). Immediately thereafter,
Ms. Madden stated “I could have helped her, but my mind was everywhere. And I’m sorry I
didn’t help her. I’m just sorry. I could have saved her. And I’m, sorry.” (XVIII,59,2-4).
Ms. Shantel Madden was on the telephone with Shanterrica Madden, when Mr. Anuna
came in and discovered Ms. Stewart. (LXVIII,194,22). “I could hear him screaming at her,
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hollering at her, just screaming. And I didn’t know what was going on. So I just told her to run.
Just run. Run. And she was screaming. I said run, just run. And she was hollering and
hollering. And I could hear him hollering for her. And they was just hollering. And I didn’t
know what was going on.” (XVIII,195,1-8). Next the phone went dead. (XVIII,195,11). Mr.
and Mrs. Madden, then headed to Murfreesboro. (XVIII,195,25).
Kathy Kirchner, registrar at MTSU testified that in the Spring 2011 semester, Ms.
Madden was taking, Anthropology 2210 Introduction to World Prehistory, Criminal Justice 1100
Introduction to Criminal Justice Administration, Communication 2200 Fundamentals of
Communication, English 1010 Expository Writing, Math 1710 College Algebra, and Music 1030
Introduction to Music. (XVII,230,20-231-24). That Ms. Madden was taking a total of eighteen
college credit hours. (XVII,235-10). That being the most hours a student can take without
permission. (XVII235,11-14).
Detective Taylor, the lead investigator testified that thru his investigation, he
discovered that the first time there was evidence of a problem between Ms. Madden and Ms.
Stewart was back in January of 2011. (XVII,275,15-20). That the problem in January 2011
related to Mr. Anuna being over at the apartment all the time. (XVII,21-23). That at the time of
this event, Ms. Madden was eighteen and Ms. Stewart was twenty-one. (XVII,277,18-23). Ms.
Stewart was five foot seven inches tall and Ms. Madden was four foot and eleven inches tall.
(XVII,280,1-11).
Ms. Lanning, testified, that on the night of the incident that she told an officer that Ms.
Stewart and Ms. Madden had been having problems back in January of 2011. (XV, 148, 11-14).
Ms. Kortni Jones, another fellow basketball player testified that Ms. Stewart had told Ms. Jones
that Ms. Madden had expressed that she was uncomfortable with the boyfriend Mr. Anuna being
14
over all the time. (XV, 149,12 and 157, 25- 158, 2).
Ms. Jones testified that on the day of decedent’s death, they had had practice “from 1:30
to 3:30 and then weights from 3:30 to 4:30.” (XV, 160, 24-25). She stated, that decedent was
“really really lively. Excited. Really excited because we were getting ready to leave for a
conference tournament.” (XV, 161, 16-18).
Erica Dodson, testified that she was the community assistant at Raiders Crossing on
March 2, 2011. (XV, 173, 5-16). She stated as a result of the complaint of a roommate smoking
marijuana, she call the senior community assistant to get the number for the courtesy officer.
(XV, 174, 5-11). That Ms. Jennifer Davidson was the one that got in touch with the courtesy
officer. (XV, 174, 16).
Ms. Jennifer Davidson testified that she was a community assistant at Raiders Crossing
and that she was not aware of any problems between decedent and Appellant. (XV, 183, 4-6).
That she received a call from Ms. Dodson on March 2, 2011, around 5:45 p.m.; wherein, Ms.
Dodson relayed that “she had received a phone call from Tina Stewart (decedent) complaining of
her roommate smoking marijuana in the apartment, 321, where they resided at Raiders
Crossing.” (XV, 184, 16-19). General Manager of Raiders Crossing, Ms. Bickford testified that
if someone sent mail to either of these girls that it would only show Apartment 321, not any
notation of Apartment A or B, because they share a mailbox. (XVI, 47,24-48,5).
Ms. Davidson testified as a result, she called Officer Jensen, the courtesy officer and “ask
him if he would like to handle that situation himself or should I call dispatch. And he said that
he would handle it himself.” (XV, 186, 1-5). Officer Jensen, called her back at 6:07 p.m. and
told her “[t]hat he didn’t find anything in the apartment when he went in. He could smell the
Black and Mild that was burning. And that he gave Shanterrica a speech because she had
15
admitted that she had smoked before entering the apartment.” (XV, 187, 9-13). Ms. Davidson
was not aware of any prior complaints which Ms. Stewart had made regarding Appellant. (XV,
191, 9-12).
Officer Tim Jensen, testified that as of March 2, 2011, he was employed as a courtesy
officer with Raiders Crossing and also with the Murfreesboro Police Department. (XV, 197, 711). That upon arrival at the apartment of Ms. Stewart and Ms. Madden, that Ms. Madden,
literally minutes before so many people’s lives were altered unexpectedly and without any intent,
opened the door and invited him in. (XV, 201, 9-12). “I asked if there was anybody else there.
Ms. Stewart was making her way down the hall since I had arrived. Ms. Madden said she had a
friend there. I asked her to go back and get her friend, so I could talk to them all in the living
room. When she went back to get her friend Ms. Stewart tried to tell me that she’s the one that
called. And I just kind of told her to be quiet, it didn’t matter.” (XV, 201, 15-22). On crossexamination, Jensen testified that Ms. Stewart stayed in that area for the time the officer was
present. (XV, 212, 21-24).
Officer Jensen asked to search your Appellant’s room to which she said, “that would be
fine” and upon searching, “I found what I thought was a burned marijuana roach. A hand rolled
cigarette in her room.” (XV, 203, 3-9). Upon being asked if he told “the girls to flush it”, he
responded “I told them to get rid of it.” (XV, 214, 23-24). The officer was further asked
whether his orders to get rid of marijuana could be considered destruction of evidence, to which
he responded, “I don’t believe it was ever considered evidence. So I mean it’s not evidence
unless it’s collected by the police.” (XV, 215, 2-4).
Jensen went on to testify that he found
tobacco in the garbage can and that, “I know most of the time when you find that much tobacco
somewhere that you’ve hollowed out a cigar or something. I said it’s not illegal so I can’t arrest
16
you for it or get you evicted for it or anything like that I said but it doesn’t look good. You
need to get rid of it. And she said she would do that.” (XV, 203, 14-25). Jensen went on to
explain that he walked Ms. Madden to the dumpster to dispose of the same. (XV, 205,1).
Officer Jensen did not know that Ms. Stewart was on the telephone with Ms. Macklin at
the time he knocked on the door. However, to add that color, on March 2, 2011, in the late
afternoon, Charnera Macklin, testified that she had called Ms. Stewart and that Ms. Stewart
called her back. (XVI,203,22-23,3). The exact time of the call was at 6:04 p.m. (XVI,218,8).
The police “was there checking the room when I was on the phone with her.” (XVI,219,13).
Ms. Macklin and Ms. Stewart had grown up in Memphis together as athletes from rival schools.
(XVI,217,18-21).
Ms. Macklin testified that Ms. Stewart told her she sounded sad and that she
had something that would cheer her up and make her laugh, and that is when Ms. Stewart told
Ms. Macklin about calling the police on Ms. Madden. (XVI,218,19-25). The district attorney
then asked Ms. Macklin what happened next, to which she responded, “[w]e laughed about it for
a minute.” (XVI,210,21).
Ms. Macklin recalls the initial confrontation between Ms. Madden and Ms. Stewart as
follows, “asked her why didn’t she tell me.” (XVI,211,8). To which Ms. Stewart’s response
was, “why didn’t you tell me”, referring to an ongoing issue with the boyfriend staying at the
apartment. (XVI,220,17-22).
After all the verbal arguing between the girls, Ms. Macklin testified, “I heard a lot of
fighting. They were fighting at this point. I understood that. They were fighting. That’s what I
heard.” (XVI,213,3-5). That during the fight, Ms. Macklin could tell from what was being said
that Ms. Madden wanted Ms. Stewart to stop. (XVI,224,24-225,2). Ms. Macklin recalled Ms.
Madden begging Ms. Stewart to let her go and she could hear Ms. Madden loudly causing Ms.
17
Macklin to believe that Ms. Stewart had Ms Madden’s head down close to the floor, fighting her.
(XVI,226,6-17). Next, Ms. Macklin heard the phone go dead, to which she tried to call back
“three or four” times. (XVI,214,13-25). Ms. Macklin also testified that she received a text
message from the phone of Ms. Stewart stating “I’m out of the shower.” (XVI,215,23).
At the conclusion of Ms. Macklin’s testimony, there were juror questions, wherein, the
following occurred:
THE COURT: I think the question—the question says maybe I missed it, but if she did
not talk since 2010 except Facebook days before how did she find out about mother’s
phone call about boyfriend. I don’t think she ever testified that she knew anything about
the mother’s boyfriend or rather your client’s mother calling. Was there any discussion
about that? MR. NEWMAN: I don’t remember it. MR. BRANDON: No, sir. THE
COURT: All right. I’m not going to ask it. Thank you. (Bench conference concluded.)
THE COURT: I can’t ask this question because it doesn’t comply with our rules of
evidence. All right. Any other questions? Ms. Kimbro. Y’all step up here, please.
(Whereupon, a bench conference occurred.) THE COURT: The question is and she may
not know this. What time was the text about the shower sent to her. Got any objections
to that? MR. BRANDON: Just other than the objection I’ve already stated. THE
COURT: I got that the first twenty times. So I got that. He doesn’t have to say it
every time. I’ll put it on the record that Mr. Brandon objects to every single
question asked by every juror in every situation. (Emphasis Added). So we’ve got it.
Okay. (XVI,230,8-231,14).
Parenthetically, the jury was present in the jury box for that entire exchange, although counsel
were at the bench, a short distance away. (XVI, 229,25-231,25).
Kelechi Anuna, the boyfriend of Ms. Stewart testified, he and Ms. Stewart met in the
summer of 2008, in the weight room at Middle Tennessee State University. (XVII,68,23-69,3).
That both he and Ms. Stewart played basketball for M.T.S.U. and would be considered Division I
Athletes, that both were very athletic, that both ran a lot, and that both in very good shape.
(XVII,69,10-23). That he is the one that found Ms. Stewart, in her deceased condition;
whereupon, “[t]he first thing that came to mind was like they got to fighting. Like they had —
because I knew about something.” (XVII,60,15-61,4-5). Mr. Anuna then began to say things to
18
Ms. Madden whereupon she ran outside and was bent down beside a Mustang in the parking lot.
(XVII,62,17-63,18).
Mr. Anuna testified he was aware that the office at Raiders Crossing had contacted Ms.
Stewart regarding the problem of Mr. Anuna spending the night too much and not being a part of
the lease. (XVII,70,23-71,10). That when he first met Ms. Madden’s parents, he was covered
with a blanket on the couch with Ms. Stewart, in the common area of the apartment. (XVII79,26).
Ms. Renee Reese, testified she met Ms. Madden at M.T.S.U. and would see her almost
everyday, during the Spring of 2011. (XVII,84,4-14). That Ms. Madden would be in the
dormitory at M.T.S.U., “a lot because her and her roommate didn’t get along. So she stayed in
Corlew a lot with a friend.” (XVII,84,17-19).
That on March 2, 2011, Ms. Reese finished classes at approximately 3:00 p.m.; wherein,
she and Ms. Madden went to McAllister, then went to get some ice cream, “[a]nd then we went
to buy the weed.” (XVII,86,14-87,18). Ms. Reese testified that she and Ms. Madden purchased
approximately one gram of marijuana. (XVII,88,13). That from there they walked to the store to
get cigarillos and then walked on to the apartment of Ms. Madden. (XVII,89,9-19). That ‘[i]t
was around 5:00” p.m. when Ms. Madden and Ms. Reese arrived at Raiders Crossing
Apartments. (XVII,89,24). That upon arrival back at the apartment, “[w]e believed that we were
there by ourselves”; whereupon, the two girls rolled and smoked the marijuana which they had
just purchased. (XVII,90,9-15). That “[m]aybe five, ten, fifteen minutes” there was a knock at
the door, and “it was the cop.” (XVII,91,23-92,18).
That “by this time she (referring to Ms. Stewart) had came from the back. She was
standing in the living room.” (XVII,92,24-25). That Ms. Reese recalls the exchange, with the
19
officer as follows: “He told us that he had been called for the smoking and he asked could he
check the apartment. And she was like, yes. And he came and he checked. He didn’t really find
much except for the shavings and the little bit of the blunt that was left that we couldn’t smoke.
So he told her to take out the trash and he told me to flush the remains down the toilet.”
(XVII,93,8-15). At this point, Ms. Madden goes with the officer to take the trash out and Ms.
Reese is setting on the bed of Ms. Madden. (XVII,93,21-94,2). That when Ms. Madden came
back in the apartment, she went and knocked on Ms. Stewart’s door. (XVII,16-17). That Ms.
Stewart came and opened the door and the girls were talking. (XVII,94,23-95,3).
Ms. Reese recalls the conversation between Ms. Madden and Ms. Stewart at the bedroom
door as follows: “[a]nd she was like why didn’t you tell me. Tina was like, well, you didn’t tell
me when you called the office about my boyfriend being here.” (XVII,95,4-7). That upon Ms.
Madden and Ms. Stewart beginning to fight, Ms. Reese got up and went to Ms. Stewart’s room
to see what was going on; wherein, she observed a fight going on. (XVII,116,6-11). That Ms.
Reese recalls she could hear Ms. Stewart asking “where’s your friend, where’s your friend. Is
she scared?”, referring to Ms. Reese. (XVII,116,21-24). Ms. Reese could hear this in Ms.
Madden’s room as she had already ran and shut and locked herself in said room. (XVII,117,1-3).
Ms. Reese testified that she was so scared that, “I was about to jump out the window.”
(XVII,117,6-8). That Ms. Reese called Ms. Caldwell at 6:07 p.m. during the fight, in an effort to
obtain a ride away from Raiders Crossing. (XVII,122,7).
That upon hearing the fighting stop, immediately, Ms. Madden knocks on her own
bedroom door, where Ms. Reese is at. (XVII,119,16-19). That Ms. Reese observed blood on the
arm of Ms. Madden.(VII,119,22). Ms. Reese continued, “I went back into her room and grabbed
my purse. And on the way out that’s when she was coming out of Tina’s room with the bag and
20
the blanket. An then as she was sticking the blanket in the bag I saw the knife fall out. Well, a
portion of the knife.” (XVII,120,1-5).
Parenthetically, March 2, 2011, was the Wednesday before Spring Break and everybody
was excited. (XVII,109,24-110,4). That Ms. Reese recalled, that she was going to ride back to
Memphis with Ms. Madden because Ms. Madden’s parents were coming to pick her up for
Spring Break. (XVII,110,10-14). Further, she recalled, that later on the evening of March 2,
2011, she and Ms. Madden were planning on going to a concert connected to M.T.S.U.
(XVII,111,25-112,9).
As Ms. Reese was preparing to leave the apartment, she observed the bedroom door
cracked with Ms. Stewart’s legs lying motionless on the floor. (XVII,120,9-17). Ms. Reese
testified upon leaving the apartment she went to a funeral home located behind the apartments, to
wait for a ride. (XVII,98,6-8). That while waiting, Ms. Madden walked over to her.
(XVII,99,4). That while at the funeral home, Ms. Reese observed Ms. Madden with both her
phone and the phone of Ms. Stewart. (XVII,121,3-24). At 6:45 p.m., Ms. Reese called 911 to
get a welfare check at the apartment, some thirty eight minutes after the fight began.
(XVII,123,1).
That Ms. Karlisha Caldwell met Ms. Madden during the Spring 2011 semester at
M.T.S.U., as they had a class together. (XVII,155,18-23). Towards the end of February, Ms.
Madden started residing on campus with Ms. Caldwell at Corlew Hall. (XVII,158,12-21). Ms.
Caldwell described taking Ms. Madden to a meeting with Raiders Crossing, as to why the girls
weren’t getting along, but Ms. Stewart never showed. (XVII,160,7-8).
Jennifer Chaffin, a dispatcher, testified that she received a 911 call, from K.C. Anuna,
regarding Ms. Stewart, at 6:45 p.m., which was dispatched at 6:47 p.m. (XV, 236, 5-20).
21
Further, that officers arrived on the scene at 6:53 p.m. (XV, 236, 14).
We also get a glimpse into the mindset of Ms. Stewart immediately before the
unfortunate series of events which led to an unforeseen result as, Ms. Stewart and Mr.
Christopher Woods were tweeting; wherein, he testified his user name on Twitter is “G2
underscore CWoods.” (XVII,176,12). Mr. Woods testified he saw a post from Ms. Stewart on
Twitter as follows: “I just called the police on my roommate. I feel like a snitch, but I hate that
bitch.” (XVII,178,180,20). He testified that after learning on Twitter that Ms. Stewart had
called the police on Ms. Madden, that he posted, “”snitches get stitches. And I Tweeted LOL at
the end of it.” (XVII,177,7-8). Further, that Ms. Stewart tweeted back “well, that bitch is getting
stitches.” (XVII,177,15).
Detective Kristy Inglish testified that she arrived at Raiders Crossing Apartments within
5 minutes of the call going out. (XV, 262, 12). She testified that upon arrival she assisted in
placing Ms. Madden in custody, then proceeded up to the apartment she shared with Ms.
Stewart. (XV, 262, 16-25). She testified that the condition of Ms. Stewart was that her eyes
were “open and glazed” and that there was no pulse, including being “cool to the touch”. (XV,
265, 2-17).
Subsequent to the testimony of Detective Inglish, the procedure for juror questions was
substantially altered. The jury was not allowed to ask questions of Detective Inglish. (XV, 274,
19-275, 1). At this point, Officer Chris Pitts is sworn in as a witness. This is important because
as you can see the method of getting jurors to ask questions was abandoned. It is wholly
unknown as to whether any juror had any questions or theories to explore, with this Detective.
That during the interview Detective Taylor conducted with Ms. Madden, he noticed a
scratch on the right side of her face just above the eye brow and a scratch on her neck.
22
(XVII,278,3-19). As to the knife, he could not rule out that the knife was already in the bedroom
of Ms. Stewart at the time Ms. Madden knocked on the door. (XVII,284,9-13). That after the
fight, the bra of Ms. Madden was separated to which the detective could not rule out the same
occurring during the fight between the girls. (XVII,288,1-3). That he found nothing to indicate
that Ms. Madden had ever been in any trouble of any kind. (XVII,293,10-17).
Detective
Taylor testified he never found the broken piece of the handle of the knife thru all of the one
hundred and eighty pictures and exhibits introduced in the case. (XVII,297,2-8).
Dr. Amy McMaster, chief medical examiner for Davidson County, was called as a
witness, further testifying as an expert witness. (XV, 310, 6). Dr. McMaster was being asked a
series of questions regarding the difference in “stab” and “cut”, to which she responded, “usually
the stab wound is described as when the depth is more than the length, but not always. In this
particular case, there are some very superficial wounds that I described as stab wounds, but it
doesn’t necessarily follow that rule.” (XV, 341, 3-8). Dr. McMaster testified that she had not
examined the knife but thought she had been told it was approximately 4 inches. (XV, 341, 23342, 4).
As to the injury at the hairline, that the length was greater than the depth. (XV, 342, 1821). As to the wound on the back of the left shoulder, Dr. McMaster testified that “it was so
superficial it was almost difficult to measure how deep it was.” (XV, 343, 14-15). As to the
wound on the left upper arm, Dr. McMaster testified she only wrote down one dimension of half
inch because, “[i]t was so superficial. Again, the depth would have been impossible to
measure.” (XV, 343, 16-24).
As to the stab wound to the chest, the knife entered one and a half inches right of center
and into the first intercostal space, which is the space between your ribs. (XV, 344, 1-11). An
23
intercostal space is numbered for the rib just superior to it and in the present case Ms. Stewart
wound was to the first intercostal space. (XV, 344, 15-21). Further, she testified that the knife
cut the root of the aorta and the right upper lung and that there was no evidence that the knife
made contact with any bone. (XV, 344, 24- 345, 2).
As to the wound to the aorta, Dr. McMaster testified that the purpose of the aorta, the
largest artery in the body, is to distribute oxygenated blood to all parts of the body through our
system; and to maintain blood pressure. (XV, 345, 6-13). Dr. McMaster said “No. It would not
take very long” to be incapacitated from the wound suffered, by Ms. Stewart. (XV, 346, 11-21).
That the wound to the chest was a downward motion which was in the 1:00 to 7:00 o’clock
position. (XV, 347, 20-24). Further, that the conclusions described are assuming that the body
is in the normal anatomical position which is “when the deceased person is lying on their back
with their arms down by their side palms up.” (XV, 348, 3-7). Dr. McMaster was asked if
someone was bent down in the process of a fight when the wound occurred would it appear to be
a downward motion, to which she responded, “[t]hat’s correct. The downward is in reference to
the deceased person in the anatomic position.” (XV, 348, 18-25).
PROCEDURAL STATEMENT OF FACTS
From a procedural standpoint, the following occurred, on July 18, 2011, Appellant had a
scheduled arraignment date in Circuit Court; wherein, on this particular day, Judge Ash was the
judge. (VI, 1,l3). Upon this cause being called, the district attorney objected to Appellant being
allowed to file a Waiver of Arraignment. (VI,1,20-25). The trial court withheld arraignment,
and orally stated that that “A) I’ll either hear your motion or your request on Wednesday at 9 not
to grant this motion. Or B) he can have her here on Wednesday and I’ll do the arraignment at that
time.” (VI,2,23-3,2). Volume VI of the transcript indicates on page three (3) line six (6), it
24
shifts to July 20, 2011. This was the day the trial court set for Appellant to drive down from
Memphis to be arraigned. (VI, 3,8).
It was at this same time that the trial court set this case
that had just been indicted for a jury trial to begin on January 31 through February 3. (VI, 43,224,5) This was very odd for two (2) reasons, first this Court will not find a history for this in any
capacity in the Rutherford County System. Second, a system with an unwritten policy that once
your case is set for trial an accused’s only option is to plea as charged.
JUROR QUESTIONING
On November 28, 2011, the parties appeared before the trial court and one (1) of the
Motions scheduled to be heard related to the Objection Regarding Juror Questioning, your
Appellant had filed. (VII, 4,18). The trial court stated, “[y]our first objection is that the rule
provides for anonymous questioning. And you’re saying that by them writing it down and
passing it down it’s not anonymous?” (VII, 4, 18-25). At this point the court began to question
counsel as to how to be more anonymous. (VII, 5,1-9). Counsel for your Appellant was
receiving challenges from the trial court, which included the following,
Okay. Well, watching and hearing are two different things. You put in here that based
upon this that the jury can hear us have these discussions up here. And just for the record
it’s thirty feet to the front juror. I measured it. Ms. Staggs here can’t even hear what we
say. She has to have her own little hearing device. We’ve got a separate microphone up
here. So I just need to know where you get that a jury hears that. Or once again is that
just your personal opinion? MR. BRANDON: It is my personal opinion because of the
close proximity and the set up of the courtroom and that it’s absolutely silent while
there’s a communication at the bench. THE COURT: All right. And so do you have any
other proof besides your personal opinion? (VII, 7,7-24).
Volume VII, is the transcript from the Motion hearing being referenced above and within
this paragraph. Volume VII, occurred on November 28, 2011 and is twenty (20) pages long.
Your Appellant would request this Honorable Court to read those twenty (20) pages to begin to
get a feel for the tone which was set against your Appellant from the beginning. As the trial
25
court continued thru the Motion with respect to Juror Questions, the following exchange took
place between the court and counsel for your Appellant:
THE COURT: All right. And you also say in your petition that the jury can explore their
own theories. Isn’t there a specific instruction given to the jury that they cannot use these
questions to explore their own theories? MR. BRANDON: Well case law suggests - -.
THE COURT: Well, no, sir. Is there not a specific instruction that says they’re not to
explore their own theories? MR. BRANDON: Yes sir. THE COURT: And that same
case law says that jurors are - - I think it’s implied that they follow the Court’s
instructions. (VII, 10,5-18).
After the trial court denied your Appellant’s Motion regarding Juror Questioning, the trial
court asked counsel for suggestions on the anonymity portion of Rule 24.1, to which General
Whitesell responded as follows:
the procedure I would suggest that the Court give every juror the exact same piece of
paper. Whether it’s off a pad or what not. And like we do when we exercise peremptory
challenges we all write something. It might be, Have a good day, Judge, or whatever.
But we all write something. And I think the Court could instruct the jury after each
witness if you have a question, write it on this piece of paper. And if you do not write I
do not have a question, or something. THE COURT: Or just don’t write anything and
just pass it down.” (VII,17,14-25).
General Whitesell continued as to the anonymity portion, as follows: “the rule is not specific as
to who it’s to be anonymous to, whether it’s to the Court, to the lawyers or to each other. So if
you send them all out they’ll still see who’s writing the question. (VII, 18.11-15).
Again, on December 12, 2011, the parties were back before the trial court for motion
hearings. (VIII). All of the Motions filed by each party were announced to the trial court and
agreed upon by counsel for the parties. (VIII, 1,11-4,24). However, on this date, your Appellant
had also filed a Motion for Change of Venue and a Motion for the trial court to Recuse itself.
The trial court addressed the Motion to Recuse, filed earlier that morning as follows:
And then Mr. Brandon’s motion for me to recuse, I have a Facebook page and Mr.
Brandon for some unknown reason filed every person that was listed as my friend on
there. And maybe I don’t have any privacy rights, but these other people do. So I’m
going to seal. That’s the only part I’m going to seal. But I’m going to seal all those
26
people’s names. He can say I know these people. I do. I graduated from MTSU. And
I’ll hear his motion. But I’m going to seal that part because I think it violates these other
people’s privacy. (VIII, 5,18-6,4).
Volume IX contains the transcript of the hearing on the Motion to Recuse and Motion for
Change of Venue, heard on December 21, 2011. (IX). The Court began with asking the State,
“would y’all mind if I heard your motion to continue first?” (IX, 1,19). The trial court reset the
trial to May 7th through the 18th. (IX, 4,10). The trial court then turned to counsel for your
Appellant; wherein, the following occurred. “COURT: Now, Mr. Brandon, you’ve got two
motions. One is for a change of venue or to pick a jury from another location. And the second
one I think is a motion to recuse. Which one would you like to hear first? MR. BRANDON:
Motion to recuse. THE COURT: Let’s do the other one….” (IX, 4,15-22). At the conclusion
of argument, the court stated that it was going to reserve ruling on the Motion for Change of
Venue. (IX, 9, 2).
The trial court then turned to the Motion to Recuse wherein the following occurred:
THE COURT: All right. So Mr. Brandon, now your motion to Recuse. Mr. Brandon:
Yes, sir. THE COURT: And I’ve made some notes here so let me just ask you some
questions as we go through this. First of all in your motion I think the words you used
are substantial and material connection. Is that the words you used on at least two
different times, right? MR. BRANDON: Paragraph 3. THE COURT: I think first you
say it about MTSU and then you said it about the women’s basketball program. MR.
BRANDON: Yes, sir. THE COURT: Tell me what – I tried to look it up. Couldn’t
figure it out. Tell me what substantial and material is. MR. BRANDON: On the Court’s
Facebook page there were -- THE COURT: No, sir. I just asked for a definition.
What’s substantial and material? What do you think? MR. BRANDON:; Intertwined in
a way that the public or that an individual would draw a perception or conclusion – I’m
just trying to answer your question, Judge. THE COURT: Well, let’s just try to focus in
on it. Factually tell me what substantial and material means.” (IX, 9,10-10,13).
The trial court went on, “Okay. And my connections with MTSU, I graduated there in
1977. You listed all this stuff. So tell me what MTSU has to do with this case. MR.
BRANDON: Well, in the State’s motion to continue it references Rick Insell, the basketball
27
coach that the Court’s friends with on Facebook.” (IX, 11,1-8). The trial court went on
THE COURT: So what does me giving money to both academic and scholarships and
going to football games, going over to MTSU, what does that have to do with this case?
MR. BRANDON: We believe it raises an issue that the Court would be prejudicial in
this matter. THE COURT: Against who? MR. BRANDON: Ms. Madden. THE
COURT: Why? Because I went to MTSU? MR. BRANDON: No, sir. Like I said
there’s 205 connections on Facebook. THE COURT: There’s what? MR. BRANDON:
205 connections or there were. THE COURT: I probably know a thousand people from
MTSU. MR. BRANDON: But then those people got defriended. And so-- THE
COURT: We’ll address that in just a minute. (Emphasis Added). Let’s just focus on
this, Mr. Brandon. Okay. So just help me understand why because I went to MTSU and
I’ve given them money, why your client would be biased or why your client would be
prejudiced? MR. BRANDON: We believe it conveys the impression that they could be
in a relationship with the Court. THE COURT: Who could? MR. BRANDON: The
individuals at MTSU. The different witnesses in this case. THE COURT: Who? MR.
BRANDON: Rick Insell. In the State’s motion they say he’s going to be one of their
witnesses. THE COURT: We’re going to do that in just a second about the basketball-MR. BRANDON: Well, you keep asking me but then when I give you the answer—I
don’t understand what you’re asking. THE COURT: I’m asking you first, just focus on
MTSU, the connections. MR. BRANDON: Yes, sir. THE COURT: Okay. And we’ll
talk about Coach Insell next. So tell me again why your client’s prejudiced or biased
because she went to MTSU and the person she allegedly killed went to MTSU? Tell me
why. MR. BRANDON: Okay. Under Lofton vs. Lofton, and this would be my answer.
The judicial code of ethics requires trial judges to make disclosures about anything that
might in any stretch of the imagination be interpreted as affecting the judges ability to be
fair and impartial. Litigants are entitled to the cold neutrality of an impartial Court and
have a right to have their cases heard by fair and impartial judges. A judge should recuse
himself or herself if there is any doubt regarding the judge’s ability to preside impartially
or if the judges impartiality can be reasonable be questioned. The test for the appearance
of impropriety is whether the conduct would create in reasonable minds a perception that
the judge’s ability to carry out judicial responsibilities with integrity, impartiality and
competence is impaired. THE COURT: So great question. Why does me giving to
MTSU and graduating from MTSU, how does that possibly affect this? MR.
BRANDON: Well, there was a memorial plaque for Ms. Stewart in this particular case.
We don’t know whether the Court’s donations for the past 20 years-- THE COURT:
See, that the problem, Mr. Brandon. You just make stuff up. Have I given anything to
any plaque for Ms. Stewart Have you got any proof of that at all? MR. BRANDON:
Well, I’ve not made anything up. I attached an exhibit to every one of my paragraphs.
(11,22-15,2).
The trial court went on as follows: THE COURT: Is MTSU a party here? Mr.
BRANDON: No, sir. But they seem to be on the front line of this. THE COURT: That’s your
opinion, right? No proof of it. Just your opinion. Correct: MR. BRANDON: Well, when we
28
Googled MTSU Don Ash—I mean it’d all come up—I’m just answering your question.”
(IX,16,1-8). I fully understand that it is boring to set and read quantities of the exchange which
existed in court; however, in an effort to paint an accurate picture of the reasons your Appellant
did not receive a fair and impartial trial, the same must be set forth. We are limiting as much as
possible, yet to keep the same tone being apparent.
Still on this same Motion, the trial court began to question who the Judge was that
conducted the preliminary hearing to which counsel for Appellant responded Judge Loughry.
(IX, 17,20-3). Then the following occurred:
THE COURT: Okay. And then a couple—was it about a year ago that you had a case
where two MTSU students got in a fight in a parking lot? MR. BRANDON: Yes, sir.
THE COURT: And I think Judge Bragg heard that case; is that right? MR. BRANDON:
Yes, sir. THE COURT: And his wife works there full-time. MR. BRANDON: I did not
know that. I didn’t even know you graduated from there to be honest with you. I thought
you went to Memphis. THE COURT: Well, let me just advise you of that. Did you
know there’s a building over there named for Judge Bragg’s dad? MR. BRANDON: No,
sir. THE COURT: Didn’t know that? So you didn’t file a motion to recuse over there
with his connections with MTSU? MR. BRANDON: No, sir….” (IX, 18,4-18,25).
****
THE COURT: Really? On a recusal you couldn’t subpoena my records or stuff like
that? MR. BRANDON: Well, it appeared that you were mad at me for filing the
Facebook stuff. You sent me an order that I had invaded your privacy and I created a
security risk. THE COURT: I think you have. MR. BRANDON: And I didn’t do
anything but go into the public page. THE COURT: Well, I’ll check on that. So you’re
saying that my Facebook page is public and that you didn’t use any – you just can click
on it and go straight to it? MR. BRANDON: Absolutely. Anybody that’s got a
Facebook account can type Don Ash in and your page comes up. THE COURT: So
you’ve got a Facebook account? MR. BRANDON: No, sir. THE COURT: Okay.
Whose Facebook account did you use? MR. BRANDON: My secretary. THE
COURT: Okay. And so let me be sure I can understand that. MR. BRANDON: And
she’s here to testify if you would like. (IX,25,6-26,7).
The exchange between counsel for Appellant and the trial court continued,
MR. BRANDON: Judge, the law – it’s about the appearance of impropriety. THE
COURT: Right. MR. BRANDON: And we believe that there’s an appearance of
impropriety. I attached exhibits from A to J. And in these exhibits it shows an extreme
connection. And we believe that – THE COURT: An extreme connection with who?
29
MR. BRANDON: MTSU and this case. THE COURT: No. I’m off MTSU. Now
I’m talking about your allegation that I have contact with the women’s basketball
program. MR. BRANDON: You were friends with the Blue Raiders Athletic
Association fundraiser. And that’s no longer there. It almost appears to be
suspicious that there were these connections. I filed my motion. You put it under
seal. And all of a sudden they go away. THE COURT: Anything else? MR.
BRANDON: It’s the appearance of impropriety. That’s the standard. THE
COURT: So you’re saying I shouldn’t be able to take off people on my Facebook
page? (Emphasis Added). MR. BRANDON: I’m saying I don’t think – I think from
than ethical standpoint that a judge -- I mean the Florida ethics opinion I attached talked
about -- the judge made an inquiry of whether or not that you could be friends with
lawyers that practiced in the Court’s court. And they said no. THE COURT: This isn’t
Florida, right? MR. BRANDON: Yes, sir. But -- THE COURT: Is that the law in
Tennessee? MR. BRANDON: Well, you referenced the Sixth Judicial -- THE
COURT: I’m just asking. Is that the law in Tennessee? MR. BRANDON: I would
submit if the issue was there it would be the law. And a minute ago the Court referenced
the Sixth Circuit which is a federal court as opposed to this. THE COURT: All right.
MR. BRANDON: And in this case in the contacts that I filed as an exhibit, Exhibit J, it
shows several members of the district attorney’s office here that are friends with the
Court. But a lot of those people are no longer friends of the Court. (Emphasis
Added). So that case talks about the appearance of impropriety. And that it conveys the
message that somebody might have an in with the Court or some type of an unfair
advantage. And that’s inappropriate. THE COURT: Sure. And I respect your opinion,
Mr. Brandon. And if you want to file an ethical complaint against me, you go ahead and
do it. But here’s the deal. To be quite honest I didn’t think my Facebook page was public.
I thought -- and maybe I’m not very good at this stuff. I thought it was private. And I
thought you had hacked into my account or got somebody to pretend to be my friend and
went through all that stuff. But I’ll check on that. But when I was looking at it I
thought you know what, if Mr. Brandon doesn’t like Mr. Insell to be one of my 1500
friends, he’s probably not going to like that -- just not the district attorney general’s
office, some of them, but also trial lawyers. And I thought you know what, to be on
the safe side I’m going to go through. And I tried to. It took me about two days. I
tried to remove all those names. But let me tell you this, Mr. Brandon. (Emphasis
Added). Just so we can be clear with each other. The reason I did that was because up
here in court sitting up here, talking, making rulings, and stuff like that, you really don’t
get to know somebody. And I’ll pick one of the district attorneys. And I won’t tell which
one it is. But I’ve had some battles with that district attorney. She hasn’t always agreed
with the stuff that I’ve put up there and things like that. And then one day I saw it and I
don’t know if she asked to be my friend or I saw her name on there and I clicked to be
her friend. And I looked on there. And she had these pictures of her grandchild. And she
was thrilled about that. And I thought you know what, that might make me a better
lawyer or a better judge to understand that people that come up here as lawyers that
they’ve got lives outside of that. And I thought you know what, maybe it would help
them as well to understand that I’ve got lives outside of sitting here. So if that’s a
mistake, Mr. Brandon, I acknowledge that mistake. I don’t think it is. There’s not a single
canon in this state and as far as I know no other state than Florida has said that judges
30
can’t do this. So my Facebook page is personal. It’s got -- I brought a copy of it today.
It’s got -- my wife Rita and I went to see Amy Grant last night. We talked about that. I
put a picture of It’s a Wonderful Life on there because I like that movie. Very personal
stuff. And I assume during your vast investigation of me or reviewing my Facebook page
did you look at all the posts that I’ve ever put on? How many years of posts did you look
at? (IX,30,2-34,11).
Over the next few pages of the transcript, the court then turned to a position of putting on
proof and at one point begins reading in technical data regarding social network sites. (IX, 3715-38,10). The trial court continued,
THE COURT: Okay. So going back to my original question before you make such a
serious allegation against the Court challenging the Court’s integrity could you very well
have gone to Coach Insell and said, you know, Coach, I’ve got a concern about this. My
client’s concerned about this. Judge Ash gives money to MTSU. Gotten different awards.
I really want to find out about his connection with MTSU, with the women’s basketball
program. Could you have done that before you made this statement? MR. BRANDON:
I don’t think that that would have been a smart tactical move to go to one of your friends
and ask them is there anything inappropriate. THE COURT: Wow. Okay. Two or three
days ago I contact the legal department. Not Coach Insell. I contacted the legal
department of MTSU and asked them. I sent them a copy of your motion to recuse and
asked them to contact Coach Insell and do an affidavit for me saying anything about
my relationship with him. (Emphasis Added). This is what he put. And I’ll make this
Exhibit Number 2. “I’m over 18 years of age and have direct knowledge of the matters
statement herein. Two, I’m currently employed as the women’s basketball coach at
MTSU. Three, in my capacity as head women’s basketball coach at MTSU my office
maintains records of individuals of all donors to MTSU women’s basketball program.
Records indicate that an individual named Don Ash made small donations.” To be
honest I’m kind of embarrassed about the small donation, but I did the best I could. “To
the program during 2003 and ’07 and 2007 and ’08. Made no donations since then. ….
MR. BRANDON: Judge, that’s hearsay. THE COURT: What you say is not? You
make allegations against a Court and -- MR. BRANDON: I attached an exhibit. THE
COURT: I’m attaching an exhibit. An affidavit. Okay. Then it says, “No one named
Don Ash is listed as one of my friends on the social networking site Facebook.” That’s
right because when he looked I had taken his name off. I took all the lawyers’ names off.
And I took off some other people basically that I wasn’t sure who they were. So that’s my
fault, too, for not keeping up with who my Facebook friends are. Then Coach Insell also
writes, “I currently have more than 4900 friends on Facebook. I have never met or
spoken with the vast majority of my Facebook friends. And then number seven, I do not
know whether Judge Ash has ever been included on some mass mailing or message
originated from me or my office. And to my knowledge I have never corresponded
directly or individually with Judge Ash through Facebook or any other means.” Let me
repeat that, “To my knowledge I have never corresponded directly or individually with
Judge Ash through Facebook or any other means.” MR. BRANDON: I’d repeat my
31
objection to hearsay, Judge. THE COURT: Great. Exhibit Number 2. Have you got
any other proof that I’m connected to MTSU? Because the basketball coach says I’m
not. Have you got anything else? MR. BRANDON: What I attached as an exhibit to
my motion. THE COURT: Okay. Great. So that’s Exhibit 2. And, Madam Clerk, if I
could pass this to you and let you look at this and mark these for me. That would be very
helpful. Let’s see. There’s Exhibit number 2. And this is Exhibit number 1. And this is
what Mr. Brandon filed this morning about the Florida Supreme Court. Now, your next
issue talks about arraignment. And I think you filed this morning a copy of our local
rules. Did you do that? MR. BRANDON: That’s correct. Yes, sir, I did. THE
COURT: Would you like me to make that an exhibit? MR. BRANDON: Yes, sir, I
would. THE COURT: Okay. That will be Exhibit Number 3. Here you go, Madam
Clerk. And in that -- and I wasn’t sure if this was to bolster your view of my connection
with MTSU or my alleged connection with the women’s basketball team or as a separate
area about why I am biased or prejudiced against your client. MR. BRANDON: We
were just trying to figure out why this case has been handled differently. (IX,40,8-44-5).
****
THE COURT: I’ll tell you what, you can paint this any way you want to, Mr. Brandon.
It says what it says. But that’s okay. And the second thing that you gripe about is that I
set it for trial at arraignment, right? MR. BRANDON: Yes, sir. THE COURT: And
let’s look again. Can we put the transcript back up here again? And up here when people
go to the witness stand and we ask them to tell the truth, the whole truth and nothing but
the truth, do you think a lawyer should have to do that, too? (IX,53,6-53,18).
The issue relevant to the practical problems with juror questions occurred on the first day
of trial, as the first witness was being called. The trial court stated, “[a]nd what we’ll do is at the
end of each person’s testimony I’ll try to remember to ask you, the jury, if you have any
questions. If you do, you have to write it down, fold it up and pass the question down to Ms.
Kimbro. I’ll look at it and then I’ll review it with the attorneys. Okay.” (XV, 50, 2-8).
Rick Insell, was one of the first witnesses called by the state. (XV, 90, 24). Mr. Insell
testified that he is the head women’s basketball coach at Middle Tennessee State University and
had been for 7 years. (XV, 91, 7-11). Part of the state’s argument regarding the smoking of
marijuana was that decedent was subject to drug screens to which Mr. Insell, affirmed. (XV, 92,
7-15). Although, when you look at the proof as a whole, including the state of mind of decedent
at the time of the mutual combat, one can see that there was motivation other than the above as to
32
why Ms. Stewart called the police.
Coach Insell, as he was frequently referred to in trial, was allowed to testify at length
about matters which were wholly irrelevant and submitted for nothing more than to create a
sympathetic and sad environment. Specifically, at one point counsel for your Appellant objected
because the court was allowing testimony about a lady’s sister having a baby; wherein, the
following exchange occurred with the trial court: MR. BRANDON: Objection. Judge, may we
approach? THE COURT: No, sir. Tell me what your objection is. MR. BRANDON: I object
to relevance. THE COURT: Okay. Why is this relevant?” (XV, 111, 9-14). The district
attorney went on to submit that the testimony was needed to show the state of mind of decedent
on the day of her death. (XV, 111, 15-18). To which the trial court responded, “[t]hat’s fine.
I’ll overrule.” (XV, 111, 19).
On cross-examination, Coach Insell, was asked if he knew how many roommates Ms.
Stewart had had, at Raiders Crossing to which he responded, no, sir. (XV,121, 13-15). At this
point the following occurred:
MR. WHITESELL: Your Honor, I’ll object to relevance of that. THE COURT: Tell me
why this would be relevant. MR. BRANDON: May we approach? THE COURT: No,
sir. MR. BRANDON: Well -- THE COURT: Why is it relevant? MR. WHITESELL:
We probably do need to approach, Your Honor. THE COURT: Okay. (Whereupon, a
bench conference occurred.) THE COURT: Yes, sir. Why is it relevant? MR.
BRANDON: There had been an issue with another roommate with Mr. Anuna spending
the night and they asked her father about Mr. Anuna spending the night. THE COURT:
Okay. I’ll sustain the objection then.” (Whereupon, the bench conference was
concluded.) (XV, 121, 16-122, 12).
At the conclusion of the testimony of Coach Insell, apparently a juror had submitted a
question during the interrogation of Coach Insell, (certainly circumstantial evidence that at least
some of the jurors were not paying attention if they are passing notes and exploring theories
during the trial), it is quiet unclear, but at any rate, the following occurred:
33
THE COURT: ….Any question from our jurors? And I had one submitted earlier but
it was not submitted correctly. You’ve got to give it to Ms. Kimbro over here. So
obviously I couldn’t ask that. (Emphasis Added). And the purpose of questioning
really is not to develop theories of your own, but really to ask to kind of fill in the gaps if
there’s something like that. And I’m going to find that both of these questions are
inappropriate. So I’m not going to ask either one of them. But, Counsel, I will disclose
those to you in just a moment….” (XV, 127, 15- 128, 1). After the jury was excused, the
following occurred: THE COURT: Thank you. Have a seat, please. The two questions
that were submitted, if you had to guess how tired would Ms. Stewart have been after the
day of everything, weightlifting and practice. Obviously that would be speculation. So
that’s not an appropriate question. And next, if the drug testing had a three strike policy
why was Tina over worried about losing her scholarship over a drug test? Well,
obviously Mr. Insell could not speak for Ms. Stewart. So those both were inappropriate
questions. That’s the reason I did not consider those or allow those to be asked. Now
Mr. Whitesell or Mr. Newman, anything before we take our lunch break?” (XV, 129,1024).
During the testimony of Detective Paul Mongold, there was confusion and commotion
again, regarding juror questions, when the following occurred:
MR. WHITESELL: Your Honor, I wonder if the jury might have a five minute break
while the Court, Mr. Brandon and I discuss something. THE COURT: Sure. And let me
say this. I know that I think one of the jurors passed a question to Ms. Kimbro.
(Emphasis Added). The way this works is we don’t ask questions or don’t write them
down until after they’ve testified and they’ve been cross examined. So we’re going to
wait. That is the way we do it. We wait until that time period. So, Ms. Kimbro,
whenever we go back out, and we’ll take a five minute break. Whenever we go back out
if you’ll just give that note back to whichever juror passed it and y’all can just hold on to
it and give it to me at the conclusion of this person’s testimony.” (XV, 386, 13- 387, 2).
After Detective Mongold testified, the trial court inquired of the jurors whether there
were any questions. (XVI, 36, 4). At this point the following occurred,
THE COURT: General Whitesell, I don’t know which exhibit this is. Where in relation
to placard 5 is the blood stain? So I guess we’ll have to get out the picture that’s got that.
So I guess that’s okay. And the second one is what is the control swab? And it says why
is it significant, but I don’t think I need to ask that. But there was a thing where there
was a control swab mentioned. Have y’all got any objection to these questions being
asked? MR. WHITESELL: I don’t. THE COURT: Mr. Brandon, have you got any
objection to it? MR. BRANDON: No, sir. THE COURT: Okay. Thank you. MR.
BRANDON: Well, let me say just the written objection that I filed previously in this
case. THE COURT: Yeah. I’ve already ruled on all of those. MR. BRANDON: Yes,
sir. (XVI, 36,9- 37,4). Subsequent to the trial court partially asking the questions posed
34
by the jury, the following occurred: MR. BRANDON: Judge, just one thing. I just
wanted to put on the record Mr. Whitesell and I both saw the fifth juror down from the
left across on the front row be the one to submit that question. THE COURT: What does
that have to do with it? MR. BRANDON: I just wanted to put that on the record. THE
COURT: Well, there was more than one. Does anybody know who else submitted one?
MR. BRANDON: He would have been the only person to hand a question in. THE
COURT: There were two questions though. So you didn’t see who the second one was?
MR. BRANDON: He was the only person we saw hand a paper in. THE COURT:
Okay. Well, just for the record there were two questions that were asked. So I don’t
know who the other juror was. Alright. If you’ll get the jury please. Everybody rise,
please.” (XVI, 38,24- 39,21).
During a five (5) minute bathroom break, the trial court again addressed jury instruction
relevant to twitter. (XVI, 147,10-147,25). At this point, the trial court had come up with an
instruction of its own. (XVI, 148,6). Specifically, the third paragraph provided “TRIAL
COURT: The third paragraph. Therefore at this time you’re instructed to consider this for the
sole purpose of whether or not they tend to establish a time line of relevant events in this case.
MR. BRANDON: Yes sir. So my only objection is to the word sole.” (XVI, 149, 3-9).
There was a break in the proceedings and upon going back on the record, the following
occurred,
MR. NEWMAN: …we’ve kind of reached an agreement on the introduction of some
evidence. Mr. Brandon has agreed to allow the Court to charge the Twitter instructions
that I submitted. In exchange for that what the State has agreed is that if Ms. Madden
testifies….so its not an illegal entry…at the time she stabbed Ms. Stewart she had a
reason to fear…then the state would not oppose a self defense charge or instruction to the
jury….THE COURT: So y’all are agreeing to a deal for me to charge something that I
thought was questionable in lieu – and I’m not being disrespectful. In lieu of me
charging self defense basically. MR. NEWMAN: If she testifies….I think to be honest
with you, Judge, that’s exactly what the cases say. THE COURT: Okay. Well, okay.
MR. NEWMAN: Now, if she doesn’t meet those qualifications then obviously it doesn’t
get charged. THE COURT: Well, she might meet them after the videotape is played.
We might not – MR. NEWMAN: Well, part of it is she was testifying. THE COURT:
Right. That’s what I’m saying. So it’s her testifying. You’re talking about her
testifying, not the videotape. (XVII,181,13-183,12).
The trial court then asked counsel for defense if that was the agreement and also
covered said agreement directly with Ms. Madden. (XVII,183,15-22).
35
Detective Ed Gorham, with the Murfreesboro Police Department testified regarding what
he located in a dumpster at Raiders Crossing. (XVI,103,5). There were two (2) knives,
identified by placard 18, in Exhibit 119, and a Blue Raider windsuit , and a bra, by placard 19, all
in the dumpster. (XVI,105,19-106,13). Further, that beside placard number 22, there was a
broken knife with blood on it, wrapped inside of a blanket, inside of a plastic bag. (XVI,106,15107,22).
Linda Littlejohn, testified as an expert in the field of microanalysis. (XVI,152,13).
That the blade of the broken knife, from the blanket was three and a half inches long and that it
had a serrated edge. (XVI,155,3-21). As to the broken handle portion, the blade that was
remaining was about an inch long, with the unbroken side of the handle being approximately
four inches long and the broken side of the handle, three and three fourths inches long (noting the
missing piece of the handle). (XVI,157,2-8).
The state called Jerry Findley, an expert in blood stain pattern analysis and
reconstruction. (XVII,13,4). Mr. Findley was provided with information from the district
attorney and through looking at the pictures noticed the trash can was turned over in the room the
girls were fighting in. (XVII,29,1). Mr. Findley’s report and testimony, drew/reached two (2)
conclusions; first, that the stab wound was inflicted in the area of the end of the desk and trash
can. (XVII,34,21-35,1). Second, that based on the height of the stains on the wall and at the end
of the desk, Ms. Stewart would had to have been in an upright position. (XVI,35,2-6). Further,
that by saying upright position is not to say standing straight up, just something higher than the
stains. (XVII,35,11). “Ms. Stewart could have been kneeling or standing.” (XVII,35,12).
The above is merely a snapshot into the lives, months, weeks, days, minutes, and seconds
leading up to and including the death of Ms. Stewart and the trial in this cause. At the
36
conclusion of the same, your Appellant was convicted of second degree murder and tampering
with the evidence. That by applying the following law to the facts and evidence contained
within the record, your Appellant would submit that she is entitled to a New Trial.
ISSUES PRESENTED FOR REVIEW
1)
Whether the trial court committed plain error by failing to recuse itself;
2)
Whether juror questions, including but not limited to the method imposed and
employed by the trial court denied your Appellant her constitutional rights;
3)
Whether there was sufficient evidence to support the resulting conviction; and
4)
Whether the sentence was excessive, in light of the facts and evidence contained
within the record as a whole.
ARGUMENT
Although this is an appeal as of right, this case is in dire need of uniformity of decision,
as to the issues involved. Primarily that being the extent of social media “friending” and
connections a judge is allowed to have and the perilous practice of juror questioning. Each will
be outlined in detail below.
PLAIN ERROR
When deciding whether an error necessitates reversal, the first step is to determine if the
alleged error is constitutional or non-constitutional. State v. Harris, 989 S.W.2d 307, 314 (Tenn.
1999).
If the error is constitutional, the burden shifts to the State to prove harmlessness, and the
error will result in reversal unless this Court is convinced beyond a reasonable doubt that
the error did not affect the outcome of the trial. On the other hand, if the error is nonconstitutional, the burden does not shift to the State, and the error will not result in
reversal “unless the error affirmatively appears to have affected the result of the trial on
the merits, or considering the whole record, the error involves a substantial right which
more probably than not affected the judgment or would result in prejudice to the judicial
process.
37
State v. Powers, 101 S.W.3d 397(citing Harris, 989 S.W.2d 314) (internal citations omitted).
Each case’s circumstances must be evaluated when determining if a defendant’s constitutional
rights have been violated. Id. If an error affects a constitutional right, it is presumed that the
error is both constitutional and reversible. Id. Denying a defendant the right to present a defense
or even reducing his ability to do so “calls into question the ultimate integrity of the fact finding
process,” and it requires any reason for doing so to be examined carefully. Chanbers v.
Mississippi, 410 U.S. 284,295 (1973).
BURDEN OF PROOF AND SUFFICIENCY OF THE EVIDENCE
Pursuant to Rule 13(e) of the Tennessee Rules of Appellate Procedure, “[f]indings of
guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
Further, it is acknowledged that because a verdict of guilt destroys the presumption of innocence
and imposes a presumption of guilt, on appeal a convicted criminal defendant challenging the
sufficiency of the evidence bears the burden of demonstrating why the evidence is insufficient to
support the verdict. State v. Evans, 108 S.W.3d 231,237 (Tenn. 2003). These rules of law apply
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both
direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389,392-393 (Tenn. Crim.
App. 1999).
The burden on appeal of showing that the evidence was legally insufficient to sustain a
guilty verdict lies with the criminal defendant, because the verdict of guilt removes the
presumption of innocence and raises a presumption of guilt.” State v. Casper, 297 S.W.3d
676,683 (Tenn.2009). The Supreme Court has summarized said standard as follows, “[a] web of
guilt must be woven around the defendant from which he cannot escape and from which facts
38
and circumstances the jury could draw no other reasonable inference save the guilt of the
defendant beyond a reasonable doubt.” State v. Crawford, 470 S.W.2d 610,613 (Tenn.1971).
Your Appellant would submit that the only web woven, was that woven by the trial court. That
your Movant’s hands were in effect tied in a way to keep her from presenting a complete
defense. Further, that the trial was conducted in such a chaotic manner, that plain error exists
which questions the sufficiency of the evidence and the resulting sentence, in a most extreme
manner.
DID THE TRIAL COURT COMMIT PLAIN ERROR BY DENYING RECUSAL
AND THE RAMIFICATIONS OF THE DENIAL OF THE SAME
The Tennessee Judicial Ethics Committee issued an Advisory Opinion, No. 12-01, on
October 23, 2012. This Advisory Opinion addressed the issue of “whether judges may utilize
social media such as Facebook…and, if so, the extent to which they may participate.” Id. 1.
Said Committee correctly recognized that there are a number of provisions of the Code of
Judicial Conduct which are relevant to the question to which they were requested to provide an
ethics opinion.
Specifically, “Tennessee Supreme Court Rule 10, Canon 1, Rule 1.2, requires that
judge[s] shall act at all times in a manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary.” Id. 1. In the case at hand, your Appellant raised
these very issues and concerns to the trial court.
The Advisory Committee went on to recognize and point out, that Comments to the
above referenced Rule 1.2, provide as follows:
Comment [1], that it applies to both the professional and personal conduct of a judge;
Comment [2], that a judge should expect to be the subject of public scrutiny that might be
viewed as burdensome if applied to other citizens; Comment [3], [c]onduct that
compromises or appears to compromise the independence, integrity, and impartiality of a
39
judge undermines public confidence in the judiciary; and Comment [5], that a judge must
avoid conduct [that] would create in reasonable minds a perception that the judge
violated [the Code of Judicial Conduct] or engaged in other conduct that reflects
adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a
judge.” Id. 1-2.
In the present case there was a demonstration of plain error in that your Appellant was required
to submit to a legal system that had all appearances of being compromised, partial, lacked of any
form of confidence, and created in reasonable minds that the trial judge violated the Code of
Judicial Conduct. This does not even begin to address the temperament which the trial judge
displayed to your Appellant and her counsel; however, with even a cursory reading of the
transcripts, the same is more than abundantly clear.
Said Judicial Ethics Opinion, also provides, “[a] judge’s use of social media may require
that the judge disclose on the record information that the judge believes the parties or their
lawyers might reasonably consider relevant to a possible motion for disqualification, even if the
judge believes there is no basis for disqualification.” Id.2. Said language is found in Rule 2.11,
Comment [5]. Not only was there no disclosure, the truth is once your Appellant filed her
Motion to Recuse, the trial court deleted an unknown quantity of his “friends” on his Facebook
page, including members of the district attorneys office and M.T.S.U. connections. (IX,30,234,11).
The last paragraph of the above referenced ethical opinion, leaves Tennessee in the same
posture as most other states, in that no hard and fast rule is developed. Said opinion does track
all other states, in that it provides if a trial court is going to participate in social media, “they
must do so with caution and with the expectation that their use of the media likely will be
scrutinized by others.” Id. 3-4. In the present case, there was no caution exercised, quiet the
opposite as demonstrated by the “defriending” which occurred once your Appellant objected.
40
The very last sentence of the Tennessee Judicial Ethics Opinion No. 12-01, page four (4)
provides, “[i]n short, judges must decide whether the benefit and utility of participating in social
media justify the attendant risks.” There was no such balancing test performed by the trial court
The Maryland Judicial Ethics Committee, Opinion Request Number: 2012-07, reached
an “Answer”, in relation to judges and Facebook. Said “Answer” concluded, “[a] judge must
recognize that the use of social media networking sites may implicate several provisions of the
Code of Judicial Conduct and, therefore, proceed cautiously.” In the Massachusetts Opinion
referenced above, found at 2011 WL 7110317 (MA Sup. Jud. Ct. Comm. Jud Eth.) the
conclusion was “[a] judge’s “friending” attorneys on social networking sites creates the
impression that those attorneys are in a special position to influence the judge. Therefore, the
Code does not permit you to “friend” any attorney who may appear before you. The
pervasiveness of social media in today’s society makes this situation one which requires a judge
to “accept restrictions on the judge’s conduct that might be viewed as burdensome by the
ordinary citizen.” Id.
The Tennessee Constitution provides, “[n]o Judge of the Supreme or Inferior Courts shall
preside on the trial of any cause in the event of which he may be interested…except by consent
of all the parties.” Tenn. Const. Article VI, Section 11). Your Appellant should not have to
subject herself to such. Your Appellant was denied a fair trial and the same constitutes plain
error.
Oklahoma has also had this issue presented to its Judicial Ethics Committee. Said
Committee begins its Opinion with something that we all can agree with, irrespective of the
variety of opinions which exist. They said, “[t]he common theme of the opinions rendered in
other states deals with the conflict that may arise between the use of the social network and the
41
duty of the Judge, found in all the Codes of Judicial Conduct, that is the duty of the Judge to
maintain the dignity of judicial office at all times, and avoid impropriety and the appearance of
impropriety in their professional and personal lives, and to ensure the greatest public confidence
in their independence, impartiality, integrity and competence….A judge shall not convey or
permit others to convey the impression that any person or organization is in a position to
influence the Judge.” Judicial Ethics Opinion 2011-03, 2011 OK JUD ETH3 (07/06/2011). Said
Opinion goes on to conclude, “[t]o those who would argue that this position is too restrictive of
the rights and privileges of the Judge, we echo the Kentucky opinion JE 119, where in is stated
“[a] Judge must accept restrictions on the Judge’s conduct that might be viewed as burdensome
by the ordinary citizen and should do so freely and willingly.” Id. 2.
The Florida Supreme Court issued a Judicial Ethics Advisory Committee Opinion
Number: 2009-20, which addressed the issues which are before this Honorable Court. They
provided, “[i]rresponsible or improper conduct by judges erodes public confidence in the
judiciary. A judge must avoid all impropriety and appearance of impropriety. A judge must
expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions
on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should
do so freely and willingly….The Committee believes that listing lawyers who may appear before
the judge as “friends” on a judge’s social networking page reasonably conveys to others the
impression that these lawyer “friends” are in a special position to influence the judge.” Id. 2-3.
The Tennessee Supreme Court has addressed the issue of recusal with respect to trial
courts in the case of Lofton v. Lofton, 345 S.W.3d 913 (Tenn. 2009). Litigants are entitled to the
cold neutrality of an impartial court and have a right to have their cases heard by a fair and
impartial judge. To that end, a judge should recuse himself or herself if there is any doubt
42
regarding the judge’s ability to preside impartially, or if the judge’s impartiality can reasonably
be questioned. Under Canon 3 of the Code of Judicial Conduct, a judge is required to recuse
himself or herself when the judge has a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of disputed evidentiary facts concerning the proceedings. Id. 9.
“The right to a fair trial before an impartial judge is a fundamental constitutional right.”
State v. Benson, 973 S.W.2d 202, 205-206 (Tenn. 1998) and Tenn. Const. Art. VI, Section 11.
The “purpose of this constitutional provision is to guard against the prejudgment of the rights of
litigants and to avoid situations in which the litigants might have cause to conclude that the court
had reached a prejudged conclusion because of interest, partiality or favor. The right to an
impartial judge is also guaranteed by Article I, Section 17 of the Tennessee Constitution, which
provides that every citizen shall have his case tried “by due course of law.” Bailey v. Blount
County Bd. Of Educ., 303 S.W.3d 216, 239 (Tenn. 2010).
Daniel Smith wrote a great piece in 2012, found at 3 Case W. Reserve J.L. Tech. &
Internet 66, Case Western Reserve Journal of Law, Technology & the Internet, 2012. He writes,
“[t]he judicial duty to avoid the appearance of impropriety has a convoluted past and an
uncertain future. What is already a murky doctrine becomes even more perplexing once one
attempts to apply it to behavior on Facebook.” Id. 1. This law review, goes in depth as to the
history of both Facebook and Judicial Ethics. Said law review foams with all of the potential
perils associated with the same. Said paper concludes as follows:
Conversely, continuing to allow Facebook use places judicial ethics jurisprudence on a
convoluted path that may last for decades. Even if the ABA refrained from discouraging
Facebook use, several states have already voiced concerns about judges and social
networking. History suggests it is only a matter of time before judges begin facing
disciplinary action for their Facebook usage. Courts may need years to develop the
appropriate appearance of impropriety standard in the social-networking context.
Furthermore, without clarity and direction, the courts will continue to struggle to create a
doctrine that is workable for the countless scenarios that may arise.
43
The only reasons courts have suffered through such a process with real-world
relationships is because, as a practical and constitutional matter, states cannot ban judges
from socializing. We do not have to go down the same road with Facebook use. If the
ABA makes it clear that being a member of social networking sites can create ethical
problems under the appearance of impropriety standard, the vast majority of judges
would close their Facebook accounts upon taking judicial office. As a result, we would
have a judiciary that is both actually and apparently less biased. We do not need another
century of uncertainty surrounding the appearance of impropriety. The ABA should take
this opportunity to resolve this issue immediately. Id. 13.
“The right of an accused to be present at his own trial is a fundamental right.” State v.
Muse, 967 S.W.2d764,3 (Tenn.1998). This fundamental right is repeated under our laws, the
Tennessee Constitution, and the United States of America Constitution. Specifically, Article I,
Section 9, states “the accused hath the right to be heard by himself and his counsel.” Id. 4. The
same was denied in the case of Ms. Madden. “The “right to be heard by himself’ requires the
presence of the defendant during the entire trial.” Watson v. State, 166 Tenn. 400, (1933).
“Presence at “trial” means that the defendant must be “present in court from the beginning of the
impaneling of the jury until the reception of the verdict and the discharge of the jury.” Logan v.
State, 131 Tenn. 75, (1915). Your Appellant would respectfully request this Honorable Court to
consider this issue for a couple of reasons.
First, if you think about jurors being allowed, encouraged, and being permitted to ask
questions of some of the witnesses but not all of the witnesses. In the case at hand, the jurors
were not permitted to ask questions of Ms. West, that introduced the Twitter evidence. She is the
witness that introduced evidence that immediately before and during the seconds leading up to
the death of Ms. Stewart, we know exactly the state of mind of Ms. Stewart. However, your
Appellant was denied that right to introduce and/or argue this issue. One could say well the
record demonstrates that you waived that by some sort of an Agreed Order. The truth is the
environment of the trial, certainly including the entire process from your Appellant’s first court
44
date, was not conducive to a fair trial. Keep in mind, one must certainly attempt to navigate their
way through such treachery the best they can. Had your Appellant not entered the agreements
she had, there would have been absolutely no evidence allowed relative to Twitter. There is
certainly more than ample direct and circumstantial evidence contained within the transcripts to
show that your Appellant had no choice but to agree.
“A defendant also has a due process right under the federal and state constitutions to be
present. The right to presence is “protected by the Due Process Clause in some situations where
the defendant is not actually confronting witnesses or evidence against him. United “States v.
Gagnon, 105 S.Ct. 1482, (1985). “The defendant has a constitutional right to be present at a
proceeding” whenever his presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge.” Id.
Also Rule 43(a) of the Tennessee Rules of Criminal Procedure gives a defendant the right
“to be present at every stage of the trial.” “Rule 43 embodies the protections afforded by the
Confrontation Clause of the Sixth Amendment, the right to be present derived from the Due
Process Clause of the Fifth and Fourteenth Amendments, and the common law privilege of
presence. Thus, its scope is broader than the constitutional right alone. Muse 4. Your Appellant
would submit that the trial court created an environment where there is certainly circumstantial
evidence that she was denied presence at all stages.
How would this process not encourage a jury to have discussions in the jury room and
otherwise as to what is going on and what was your question that they would not answer. There
is circumstantial evidence that this would occur. It is the logical reality and conclusion, if you
allow yourself to envision orally what one can read visually. Even in this present case, at one
point where the confusion with juror questions arose the judge put the jury in the jury room and
45
directed his law clerk to take the question to the jury room with the jury and return the question
to the individual that asked the same. As counsel, I tried to look at which juror the question was
returned so I could put that on the record also; however, the door was closed.
Your
Appellant was denied a right to be present at all stages.
Think about what the mind set of a juror, or even your own mindset if you were in that
spot, of being told you can ask questions, then you have the chaos of passing questions down
during the middle of witnesses. How is it as a Judge in a three member panel, if the Judge to the
far left of the podium as we would be facing, passes a note to the Judge on the far right. Exactly
how much of what was being said by the attorney at the podium, would you hear and process as
the note was being passed through your lap. Now under the argument I just advanced, it was an
attorney speaking which is certainly not evidence in a first degree murder trial. However, in the
case at hand it was evidence from the witness stand as notes are being passed up and down the
aisles with total confusion. Exactly how much would anyone be able to take in as notes are
being passed up and down the aisles, with no sense of direction. Such dysfunction, in a trial
where one is facing such grave consequences cannot be tolerated and constitutes plain reversible
error.
If this Honorable Court says well you agreed that would be true as did Ms. Madden
and yes Ms. Madden was well informed and made that choice. Because otherwise, none of it
would have come into evidence and sure she could have that as an issue, but she didn’t want to
have to defend and win her case on appeal. One would never try a case for purposes of trying to
prevail on appeal. Therefore she understands it was tactical; however, it goes to the overall
elements/dynamics, another pebble on the pile, if you will, in how this case was tried. Hence,
the agreement for introduction for time line to at least get the information before the jury.
46
Twitter postings by an individual immediately before, at, and during an episode which
results in the charge of first degree murder, are certainly relevant and admissible. By excluding
and limiting your Appellant, she was denied an opportunity to submit relevant and probative
evidence on a critical element of her defense. Said evidence would have been corroborative to
Appellant’s claim of self defense.
UNCONSTITUTIONALITY OF JUROR QUESTIONS
The Sixth Amendment to the United States Constitution states in relevant part that “[i]n
all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed . . . .” U.S.
Const. amend. VI. Tennessee’s state constitution provides that “in all criminal prosecutions, the
accused hath the right to . . . a speedy public trial, by an impartial jury of the County in which the
crime shall have been committed . . . .” Tenn. Const. art. I, § 9. The words “impartial jury,”
within the context of the U.S. Constitution, mean having a “jury that has no opinion about the
case at the start of the trial and that bases its verdict on competent, legal evidence.” Black’s
Law Dictionary (9th ed. 2009) (emphasis added); see also Durham v. State, 188 S.W.2d 555, 558
(Tenn. 1945) (stating that jurors should have an impartial frame of mind before the trial starts
and only base the verdict on proper evidence connecting the defendant with the crime he is
charged with committing).
Allowing jurors to ask questions creates many hazards of them drawing inappropriate
inferences or conclusions from information that may not be allowed in the trial as evidence. This
practice also converts jurors into active seekers during the trial, and allowing jurors to ask
questions relieves the prosecution from proving beyond a reasonable doubt the crime a defendant
is charged with committing. Thus, if the state fails to convince jurors beyond a reasonable
47
doubt, permitting members of the jury to ask questions simply fills in the holes that the
prosecution has failed to fill itself. To remedy this constitutional violation, this honorable Court
should hold that juror questioning should be prohibited in criminal cases to ensure a fair trial and
to protect a defendant’s fundamental right to due process.
Tennessee Rule of Criminal Procedure 24.1(c) permits jurors to ask questions, in the trial
court’s discretion. Questions must be in writing, anonymous, and submitted at the end of a
witness’ testimony. Tenn. R. Crim. P. 24.1(c)(1). The trial judge is to review questions and ask
both parties’ counsel outside of the jury’s hearing whether the question should be asked, and the
question can be modified. Id. § (c)(2). Finally, the trial court is supposed to instruct jurors that
no inference can be drawn from the fact that a question is not asked or the wording is changed.
Id. at § (c)(3). The Advisory Comment to Rule 24.1(c) indicates that the purpose of the practice
is to “assist jurors in their understanding of evidence and to make them feel more involved in the
trial process . . . .” Id. at Advisory Comment. Some courts have discussed such alleged benefits
at length. See, e.g., Kansas v. Hays, 883 P.2d 1093, 1102 (Kan. 1994). Most jurisdictions allow
jurors to ask questions, but this is misleading because the practice is usually discouraged. See,
e.g., United States v. Thompson, 76 F.3d 442, 448 (2d Cir. 1996).
While the goal of juror questioning is certainly noble and idealistic, the dangers of
allowing jurors to ask questions are many. For example, jurors can find themselves removed
from their appropriate role as neutral fact-finders; jurors may prematurely evaluate the evidence
and adopt a particular position as to the weight of that evidence before considering all the facts;
the pace of trial may be delayed; there is a certain awkwardness for lawyers wishing to object to
juror-inspired questions; and there is a risk of undermining litigation strategies. United States v.
Collins, 226 F.3d 457, 461 (6th Cir. 2000). Despite deciding that the trial judge in the Collins
48
case had discretion to allow questioning by jurors, the Sixth Circuit also stated that juror
questioning is a practice that should be discouraged. Id. Additionally, a juror’s question has
potential to be prejudicial or improper. Id. at 462.
This Court should follow the reasoning of states that have prohibited juror questioning in
criminal cases.
For example, the Supreme Court of Mississippi banned juror questions
altogether, holding the procedure to be reversible error. Wharton v. Mississippi, 734 So. 2d 985,
990 (Miss. 1998). “The most obvious problem with allowing jurors to question witnesses is the
unfamiliarity of jurors with the rules of evidence.” Id. When jurors can ask questions, their
impartiality or objectivity can be lost or greatly reduced. Id. Likewise, the Georgia Supreme
Court wrote, “Clearly, a juror is not permitted to question a witness.” Johnson v. Georgia, 507
S.E.2d 737, 742 (Ga. 1998).
Similarly, the Minnesota Supreme Court stated the following:
In sum, our concern about allowing jurors to question witnesses is two-fold. First,
the opportunity to pose questions may prevent jurors from keeping an open mind
until all the evidence has been presented. Second, the opportunity to pose
questions may upset the burden of production and persuasion in a criminal trial.
We believe the passive-juror system minimizes these problems because jurors are
(1) not enticed to form hypotheses or judgments about missing testimony; and are
(2) prevented from affecting the production of evidence.
Minnesota v. Costello, 646 N.W.2d 204, 213 (Minn. 2002). There is a great risk that juror
questions actively assist the prosecution in meeting its constitutional burden, hence
compromising the role of the jury. Id. at 212. Although there are some positive aspects of juror
questioning, the Minnesota Supreme Court held that any benefits obtained from allowing
questions is outweighed by the role of having an impartial jury in the adversarial system and that
therefore, juror questions in criminal cases are banned. Id. at 213, 214. This honorable Court
should hold likewise.
49
Historically speaking, courts have transformed trials from being inquisition-based to
adversarial in nature. Id. at 208. In other words, instead of jurors and the court questioning
witnesses and defendants, lawyers now present evidence for a passive fact-finder to consider.
According to the Minnesota Supreme Court, this historical backdrop is why the Sixth
Amendment to the U.S. Constitution guarantees a defendant the right to counsel. Id. Plus,
[t]o the degree jurors are encouraged to ask questions about facts and legal issues,
they are encouraged to form at least a prior tentative opinion because one cannot
investigate unless one has a hypothesis about what happened in the particular
criminal case. Therefore, with such encouragement, there is an increased risk that
jurors will inevitably draw conclusions or settle on a given legal theory before the
parties have completed their presentations, and before the court has instructed the
jury on the law of the case.
Id. at 211 (internal quotations and citations omitted). Such tentative opinions and hypotheses
allowed to be explored by jurors is a violation of the United States Constitution’s guarantee of an
impartial jury.
Furthermore, certain evidence is simply not meant to be presented to the jury. For
example, the purpose of pre-trial motions is to determine ahead of trial what information can and
cannot be mentioned at trial.
Bench conferences are held throughout a trial to prevent
inappropriate information from reaching the ears of jurors. If jurors have free reign over what
information they consider, there would be no need to exclude evidence at pre-trial hearings or
bench conferences.
Essentially, allowing jurors to ask questions is the same as the jury being
present for every evidentiary ruling because there is no limit on what they can consider and what
inferences can be drawn from the trial court’s response. The best way to prevent jurors from
drawing inferences and conclusions from inappropriate juror questions is to simply prohibit them
altogether.
This Court should hold that allowing juror questions in a criminal case is
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unconstitutional. The practice has entirely too much risk associated with it, specifically, that a
juror asks a question which is ultimately not allowed to be considered by the jury; such a
situation creates great potential for a juror to draw a negative inference—or worse, a conclusion
about why the question is not asked. Additionally, the burden of proof can change too easily,
lessening the state’s burden. If jurors get free reign over what information is obtained by them,
there is a dangerous potential for them to become advocates of one side or the other and violate a
defendant’s Sixth Amendment right to have an impartial jury.
The Tennessee Court of Criminal Appeals has previously frowned upon juror questions
to witnesses, though the practice has never been forbidden and is questionably allowed by the
Tennessee Rules of Criminal Procedure.
Although the question by the juror was proper in this case, the efforts of jurors to
ask questions of witnesses during a trial often present delicate problems and
should not be encouraged. They always make it difficult or embarrassing to an
attorney to object. Irretrievable and harmful error may result from them.
Raynor v. State, 447 S.W.2d 391, 393 (Tenn. Crim. App. 1969). Further, in another case, the
court stated in dictum that jurors asking questions is “a perilous practice which trial courts
should scrupulously avoid.” Branch v. State, 469 S.W.2d 533, 534 (Tenn. Crim. App. 1969).
In Byrge v. State, one of the defendant’s assignments of error was the fact that a juror had
asked a question to an expert witness. Byrge v. State, 575 S.W.2d 292, 294 (Tenn. Crim. App.
1978). Defense counsel did not object, nor did defense counsel request to address the matter
outside the presence of the jury. Id. at 295. The Byrge court cited Branch, supra, stating that
allowing jurors to pose questions to witnesses is a perilous practice. Id. The Byrge court
ultimately overruled the defendant’s assignment of error, holding that each case must be
51
considered to determine whether an error with respect to this issue has been committed. Id.
The little authority available on this topic seems to indicate that Tennessee courts discourage
juror questions, and this Court should close the door on the practice altogether.
Additionally, in State v. James, 315 S.W.3d 440 (Tenn. 2010), an issue with respect to
juror questions was addressed. However, the issue related to the extent of questioning allowed
by the attorneys in follow up to a question by a juror. Hardly on point to the present case,
although said case is replete with language, describing the same as a perilous practice. Id.
Also, in State v. Reynolds, 2010 WL 5343305, there was an issue with respect to juror
questioning. The Appellate court decided the issue using James, thereby passing the issue of
juror questions.
In the case at hand, the anonymity issue has now risen to the top. As a juror asking a
question was identified and placed on the record. The manner of allowing juror questions was
altered with respect to two (2) of the witnesses at the trial. One being the Detective that
introduced the Twitter account of decedent. Some questions were asked some were not. This
case screams for the courts to declare juror questions unconstitutional in a criminal jury trial.
The process of juror questions in a juror trial has been characterized by some as an experiment.
An experiment is a pack of Mentos and a two liter coke, not the Constitution. The same
constitutes plain error.
WHETHER THE SENTENCING WAS EXCESSIVE
Pursuant to T.C.A. Section 40-35-401, a defendant may appeal from the length, range or
the manner of service of the sentence impose by the sentencing court. In the present case the
sentence is excessive under the sentencing considerations set forth in Section 40-35-103 and 4035-210. The standard of review requires the appellate court to conduct a de novo review of the
52
record without a presumption that the determinations made by the trial court were correct. If the
appellate court finds that the sentence is excessive or the manner of service of the sentence is
inappropriate the sentence must be modified. Id.
“After an extensive review of the Sentencing Reform Act, the Tennessee Supreme Court
found that both methods of ascertaining the sentence were incorrect. The court found that all of
the factors should be considered but that there is no presumption of any specific sentence. “We
think that the Sentencing Reform Act intends that sentences should be considered on a case by
case basis and that the sentencing court should exercise guided discretion within the terms of the
act. Nothing we have found in the act indicates that any presumptive sentencing should be
adopted at all.” State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
“On appeal, the higher courts are given broad authority to review the sentence. While no
standard of review is stated in the appellate review statutes, it is clear that the courts have
adopted an abuse of discretion standard. Where the record supports the sentence imposed, the
trial judge’s discretion will not be disturbed. However, where the sentenced is excessive, a
reduction of sentence may be appropriate. 11 Tenn. Prac. Crim. Prac. & Procedure Section
32:115.
CONCLUSION
Shortly before March 2, 2011, Ms. Shantel Madden recalled, “my husband wanted to
come down the week before. He said he had a strange feeling about something that wasn’t right.
And I told him, I said we’re going to pick her up Friday and she’s all right. She’ll call us if she
needs us. And he had a feeling. And if I had let him come that Friday this wouldn’t have
happened.” (XVIII, 192,16-22). Ms. Shantel Madden went on to explain regarding her calling
the office, “I’m sorry. I should have never called. If I hadn’t have called this wouldn’t – we
53
wouldn’t be here today.” (XVIII,188,19-21). Also, that Ms. Shanterrica Madden would not
have been returning to MTSU after spring break because, “[i]t was a mother’s intuition. I
figured something was wrong.” (XVIII,193,7).
Ms. Shantel Madden recalls talking to Ms. Shanterrica Madden on the morning of March
2, 2011, as”[s]he was away at college. And I always called her to make sure she was up for
school and ready to get her day started.” (XVIII,182,23-25).
Ms. Karen Ford, a freshman, English instructor at MTSU was called to testify.
(XVIII,206,1). Ms. Ford testified that Ms. Madden had been a student of hers for a full semester
and a half. (XVIII,206,6-7). She stated Ms. Madden was a “very good”, “very successful”
student.
(XVIII,206,20).
Ms. Ford recalled the following about Ms. Madden, “[s]he did
everything that was asked of her. And she also would come to me with questions. She was very
focused in the front row.” (XVIII, 207, 4-6).
RESPECTFULLY SUBMITTED:
_________________________
JOE MASON BRANDON, JR.
Attorney for Appellant
119 North Maple Street
Murfreesboro, TN 37130
615-890-3656
BPR# 16601
_________________________
LAURIE Y. YOUNG
Attorney for Appellant
119 North Maple Street
Murfreesboro, TN 37130
615-890-3656
BPR# 18471
54
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing has been sent by U.S.
Mail, postage pre-paid to the district attorney general Rutherford County, 320 West Main Street,
Murfreesboro, TN 37130 and the Office of the Attorney General, P.O. Box 20207, Nashville,
TN 37202, this the ____ day of April, 2013.
___________________
JOE BRANDON, JR.
55