        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                    Opinion on Remand

          STATE OF TENNESSEE v. BRODERICK JOSEPH SMITH

                 Appeal from the Criminal Court for Davidson County
                     No. 2009-A-501    J. Randall Wyatt, Judge


                No. M2011-01173-CCA-RM-CD - Filed August 15, 2011




On May 26, 2011, the Tennessee Supreme Court remanded this case for reconsideration in
light of its opinion in State v. Garrett, 331 S.W.3d 392 (Tenn. 2011). In Garrett, our supreme
court clarified the proper procedure to be used when a defendant requests a severance of
offenses pursuant to Tennessee Rule of Criminal Procedure 14. Id. at 401-05. At issue upon
remand in this case is whether the trial court erred in its denial of the Defendant’s motion to
sever one count of aggravated robbery from the remainder of the indictment. Following our
review, we affirm the judgments of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Carol Dawn Deaner, District Public Defender; Jeffery A. DeVasher, Assistant Public
Defender (on appeal); and Joseph Michael Engle, Assistant Public Defender (at trial), for the
appellant, Broderick Joseph Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Amy Hunter
Eisenbeck and Robert Homlar, Assistant District Attorneys General, for the appellee, State
of Tennessee.

                                          OPINION

      A full recitation of the facts of this case may be found in this court’s previous opinion.
See State v. Broderick Joseph Smith, No. M2009-01427-CCA-R3-CD, 2011 WL 322358
(Tenn. Crim. App. Jan. 14, 2011). As pertinent to this review, the record reflects that on June
24 and 25, 2007, the Defendant robbed a gas station and two banks, committed two
carjackings, attempted a third carjacking, attempted to take the vehicles of three other people,
and assaulted a man who tried to help one of the victims. On October 26, 2007, a seven-
count indictment was filed, charging the Defendant with two counts of carjacking, three
counts of attempted robbery, one count of assault, and one count of leaving the scene of an
accident.1 A superseding indictment was filed on February 27, 2009, adding additional
charges of aggravated robbery and attempted carjacking. On March 2, 2009, the Defendant
filed a motion to sever the aggravated robbery charge from the remainder of the indictment.

       Relying on the presentment and testimony from the preliminary hearing, the
Defendant’s motion to sever stated that the aggravated robbery occurred at 1:30 p.m. on June
24, 2007, the first carjacking occurred at 10:21 p.m. on June 24, 2007, and the rest of the
indicted crimes occurred in rapid succession around 2:30 p.m. on June 25, 2007. The
Defendant argued in his motion that the aggravated robbery charge was not part of a common
scheme or plan because the victim knew the Defendant while the other victims did not; there
was a surveillance video of the aggravated robbery while there was no video evidence of the
other crimes; and the other crimes occurred “in close proximity,” while the aggravated
robbery occurred “on the other side of town.”

        The State responded to the Defendant’s motion by arguing that joinder of the
aggravated robbery charge was mandatory. In support of this argument, the State presented
a statement the Defendant gave to police shortly after his arrest. The Defendant told the
interviewing officers that he needed money to buy a handgun because he was planning to kill
his ex-girlfriend and her new boyfriend. The Defendant stated that “I knew in order for me
to do it, I had to get some money, I had to get out of town [and] regroup, then I was going
to come back.” Once the Defendant returned to Nashville, he was going to find his ex-
girlfriend and her boyfriend and “kill them mother f-----s” along with “who ever got in my
way . . . .” The State argued that this statement showed that the aggravated robbery and the
other indicted crimes were part of a common scheme or plan by the Defendant to get money
so he could kill his ex-girlfriend and her boyfriend.

        The trial court held a hearing on this issue on March 3, 2009, and issued a written
order denying the Defendant’s motion to sever on March 4, 2009. The trial court concluded
that joinder of the aggravated robbery count was not mandatory. Instead, the trial court ruled
that joinder was permissive pursuant to Tennessee Rule of Criminal Procedure 8(b).
Accordingly, the trial court analyzed the Defendant’s motion using the severance provisions
of Rule 14(b)(1), reasoning as follows:

1
    The charge of leaving the scene of an accident was dismissed prior to trial.

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       The trial court may not deny a severance request unless it conducts a hearing
       and determines from the evidence that: “(1) the multiple offenses constitute
       parts of a common scheme or plan, (2) evidence of each offense is relevant to
       some material issue in the trial of all the other offenses; and (3) the probative
       value of the evidence of other offenses is not outweighed by the prejudicial
       effect that admission of the evidence would have on the defendant.” Spicer v.
       State, 12 S.W.3d 438, 443 (Tenn. 2000).

      Using the analysis described above, the trial court made the following findings of fact
and conclusions of law:

               The [trial court] finds that the Defendant committed a series of
       robberies and carjackings over a period of [25] hours. The [trial court] finds
       that the State has put forth evidence, through the Defendant’s own admissions,
       suggesting that these acts were part of a crime spree, performed in order to
       effectuate the goal of acquiring funds to purchase a handgun. The [trial court]
       finds that each crime was committed within a [15] mile radius of the others,
       that the crimes were all committed in a [26] hour period, involving [11]
       different criminal actions, and that none of the crimes were performed more
       than [9] hours apart from the others. The [trial court] also finds that the acts
       were of similar character, with each involving the Defendant physically
       threatening an individual in an attempt to deprive him or her of money or
       property or to effectuate an escape from the theft. The [trial court] therefore
       finds that these acts constitute a larger, continuing plan creating a common
       scheme or plan under Rule 14.

               The [trial court] also finds that the evidence of the common plan is
       material to relevant issues at trial, including the identity of the assailant, as
       well as motive. The [trial court] finds that evidence of a common scheme to
       steal in order to purchase a handgun to commit a crime of passion could
       identify the Defendant as the perpetrator of this aggressive, seemingly
       haphazard crime spree across the area. Finally, the [trial court] finds that the
       probative value of the inclusion of all counts would outweigh the prejudicial
       effects. The [trial court] finds that the Defendant’s admissions demonstrate a
       motive that preexisted the [a]ggravated [r]obbery charge . . . and that evidence
       of his first robbery assists the jury in demonstrating that the Defendant is the
       person committing these other crimes, that he has the motive to do so, and that
       he is doing so in order to effectuate a specific goal. The [trial court] finds that
       any prejudice the Defendant might incur as a result of the similarity of this
       crime to the other crimes is substantially outweighed by the probative value of

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       its inclusion. The [trial court] therefore finds that severance should not be
       granted under Rule 14.

        The trial court also ruled that the State could present evidence at trial of the
Defendant’s armed bank robbery convictions related to the indicted crimes and a redacted
version of the Defendant’s statement to the police. The trial court ordered that any reference
to the Defendant’s attempts to obtain a handgun or his plan to murder his ex-girlfriend and
her new boyfriend be redacted from the statement. The State was permitted to show that the
Defendant committed the bank robberies and the indicted crimes in order to obtain money
to purchase an item, but the State could not inform the jury what the item was. Following
a jury trial, the Defendant was convicted on all counts and sentenced to 89 years. See Smith,
2011 WL 322358 at *1-5.

                                         ANALYSIS

         The Tennessee Supreme Court in Garrett addressed “the proper procedure” regarding
the rules of joinder and severance because “some trial courts and prosecutors continue to
struggle with the proper application of these rules in various factual contexts.” 331 S.W.3d
at 402. A trial court’s denial of a motion to sever is reviewed under an abuse of discretion
standard. Id. at 401 (citing Spicer, 12 S.W.3d at 442). Tennessee Rule of Criminal
Procedure 8(b) provides that “[t]wo or more offenses may be joined in the same indictment”
if the offenses are either (1) “parts of a common scheme or plan” or (2) “of the same or
similar character.” However, Rule 14(b)(1) provides that if “two or more offenses are joined
. . . pursuant to Rule 8(b), the defendant has the right to a severance of the offenses unless
the offenses are part of a common scheme or plan and the evidence of one would be
admissible in the trial of the others.” Accordingly, once a defendant makes a motion to sever
or objects to a pre-trial consolidation motion by the State, “the trial court must consider the
motion by the severance provisions of Rule 14(b)(1)” instead of the provisions of Rule 8(b).
Id. at 402 (quoting Spicer, 12 S.W.3d at 443).

       Upon a defendant’s motion to sever, “the trial court must hold a hearing in order to
gather the information necessary to adjudicate the issue.” Garrett, 331 S.W.3d at 403. In
Garrett, our supreme court emphasized “both the need for a hearing and the equally important
requirement that the trial court support its ensuing ruling with findings of fact and
conclusions of law.” Id. The trial court must sever the offenses unless it can

       conclude from the evidence and arguments presented at the hearing that: (1)
       the multiple offenses constitute parts of a commons scheme or plan; (2)
       evidence of [one] offense is relevant to some material issue in the trial of all
       the other offenses; and (3) the probative value of the evidence is not

                                              -4-
       outweighed by the prejudicial effect that admission of the evidence would have
       on the defendant.

Id. (quoting Spicer, 12 S.W.3d at 445) (citations omitted).

       Our supreme court reiterated that the primary issue of any severance case is whether
the evidence of one offense would be admissible in the trial of the other if the two offenses
remained severed. Garrett, 331 S.W.3d at 402. Put another way, a severance motion is
essentially “a question of evidentiary relevance.” Id. (quoting Spicer, 12 S.W.3d at 445).
As our supreme court has previously stated, “a common scheme or plan for severance
purposes is the same as a common scheme or plan for evidentiary purposes.” State v. Moore,
6 S.W.3d 235, 240 n.7 (Tenn. 1999). Tennessee Rule of Evidence 404(b) excludes evidence
of “other crimes, wrongs, or acts” committed by the defendant when offered only to show
the defendant’s propensity to commit the crime charged. This is because such evidence lacks
relevance and invites the finder of fact to infer guilt from propensity. Garrett, 331 S.W.3d
at 402-03. However, evidence of prior bad acts may be admissible for other purposes, such
as “to show identity, guilty knowledge, intent, motive, to rebut a defense of mistake or
accident, or to establish some other relevant issue.” Moore, 6 S.W.3d at 239 n.5 (quoting
State v. Hallock, 875 S.W.2d 285, 292 (Tenn. Crim. App. 1993)).

       The facts of the Defendant’s case are markedly different from the facts in Garrett.
The defendant in Garrett “was indicted separately for two different criminal episodes, one
involving an aggravated robbery and the other involving a homicide and an especially
aggravated robbery.” 331 S.W.3d at 395. The only similarity between the two crimes was
that the defendant had robbed both victims in order to steal the wheel rims from their
vehicles. Id. at 397-400. In Garrett, the State filed a motion to consolidate the two
indictments “on the grounds that the offenses charged constitute[d] parts of a common
scheme or plan and/or the offenses charged [were] of the same or similar character.” Id. at
396. The defendant objected to the State’s motion arguing that consolidation was not proper.
Id. The trial court granted the State’s motion over the defendant’s objection without holding
a hearing and did not issue findings of fact and conclusions of law in support of its ruling.
Id. at 404. Furthermore, the trial court granted the State’s motion on the basis of the
provisions found in Rule 8(b) instead of analyzing the issue under the severance provisions
of Rule 14(b)(1). Id. Our supreme court conducted “the analysis that the trial court failed
to conduct” and concluded that there was no evidence that the crimes were part of a common
scheme or plan. Id. at 404-05. Accordingly, the supreme court held that the trial court erred
by consolidating the indictments in the face of the defendant’s objection. Id. at 405.

         Unlike the trial court in Garrett, the trial court in this matter held a hearing, supported
its ruling with findings of fact and conclusions of law, and applied the proper analysis under

                                                -5-
Rule 14(b)(1). Additionally, the State presented evidence, through the Defendant’s statement
to the police, that the aggravated robbery was part of a continuing scheme or plan. For
offenses to be considered part of a continuing scheme or plan, the crimes must be directed
toward a “common goal or purpose.” State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004)
(quoting State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995)) (quotation marks
omitted). This “requires proof of ‘a working plan, operating towards the future with such
force as to make probable the crime for which the defendant is on trial.’” State v. Allen
Prentice Blye, No. E2001-01375-CCA-R3-CD, 2002 WL 31487524, at *5 (Tenn. Crim. App.
Nov. 1, 2002) (quoting Hoyt, 928 S.W.2d at 943), perm. app. denied (Tenn. Mar. 10, 2003).
The continuing scheme or plan category “has typically been restricted to cases involving
crime sprees, where the defendant commits several crimes quite closely in time to one
another.” Id. (citing State v. Hall, 976 S.W.2d 121, 146 (Tenn. 1998) (appendix)). The
Defendant’s statement to the police is clear that all of the indicted crimes were committed
in order to obtain money to purchase a handgun, “get out of town,” and “regroup” so he
could return to Nashville and kill his ex-girlfriend, her new boyfriend, and anyone else who
got in his way. Unlike Garrett, there was sufficient evidence for the trial court to conclude
that the aggravated robbery and the other indicted crimes arose from a common scheme or
plan.

       With regard to the remaining elements of the Rule 14(b)(1) analysis, we agree with
the trial court’s conclusion that evidence of the aggravated robbery would have been
admissible in the trial of the other offenses if they had been severed. The trial court
concluded that evidence of the aggravated robbery was material to establishing the
Defendant’s identity and motive. The Defendant’s desire to kill his ex-girlfriend and his
need for money to obtain a handgun was the common thread running through all of the
Defendant’s crimes. Unlike the other indicted crimes, the aggravated robbery provided
evidence that illustrated the Defendant’s motive to obtain money. Without this evidence, the
jury would have been left to consider a “seemingly haphazard crime spree across the area”
with no apparent motive. Additionally, we agree with the trial court’s conclusion that the
probative value of the evidence outweighed its prejudicial effect because evidence of the
aggravated robbery provided significant evidence regarding the Defendant’s motive.
Accordingly, we conclude that the trial court did not err by denying the Defendant’s motion
for severance.




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                                     CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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