        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 February 20, 2008 Session

              STATE OF TENNESSEE v. JOSE NOE GUTIERREZ

                Direct Appeal from the Criminal Court for Davidson County
                        No. 2007-A-807    Mark J. Fishburn, Judge



                    No. M2007-02064-CCA-R9-CO - Filed March 25, 2009



JOHN EVERETT WILLIAMS, J., dissenting.


       My colleagues and the trial court determined that Detective Corcoran was without probable
cause to believe that the defendant was involved in the murder of Emma Fuller, that taking the
defendant into custody violated his Fourth Amendment rights, and that the defendant’s subsequent
confession acknowledging his involvement in the murder should be suppressed. I agree with the
relevant law cited by the majority and recognize that probable cause must have been established at
the time of the defendant’s arrest. I simply disagree with the majority’s conclusion that probable
cause was not established on the facts known to Detective Corcoran.

        The facts relevant to my determination that Detective Corcoran had probable cause to arrest
the defendant and that his subsequent confession should not be suppressed are as follows:

       1) Detective Corcoran was a twenty-one-year veteran of the Metro Nashville Police
          Department.

       2) Detective Corcoran had personal knowledge that Emma Fuller was murdered.

       3) Detective Corcoran had reliable information that the last known persons to see
          the victim alive were two male Hispanics.

       4) The two male Hispanics were described as between five feet-three inches and five
          feet-nine inches tall, young, and slender. One male’s hair was shaved on the sides
          and longer on the top, and he was wearing black jeans and a black tank top. The
          other male was shorter, heavier, and was wearing a white shirt and a ball cap.
          They were last seen walking south on Antioch Pike with three other male
          Hispanics.
        5) The two male Hispanics who left the restroom joined their associates (three other
           male Hispanics) who were waiting outside the washette beside a red van.

        6) All five male Hispanics entered the red van and, moments later, exited and
           walked away from the washette.

        7) The red van could have been taken by the suspects to leave the scene if not for
           a broken key in the ignition that rendered the van inoperable.

        8) The van was registered in the name of the defendant.

        9) Detective Corcoran learned, through reliable information, the name of the owner
           of the red van, that he lived within two miles of the murder scene, and where he
           worked.

        10) The detective could personally identify the defendant as the person he saw on the
            security tape from the bar and the security video disk from the gas station, which
            showed the five male Hispanics leaving the washette and walking toward the
            defendant’s home.

        The majority does not question the trial court’s finding that Detective Corcoran lacked
credibility when he testified he could make an identification of the defendant from viewing the
security tape from the bar or the security disk from the gas station. If, in fact, Detective Corcoran
could identify the defendant as one of the persons he saw on the security tape or disk, then I believe
there is no question that he had probable cause to arrest the defendant, as the detective now had
conclusive proof that the defendant was, in fact, at the scene of the murder.

        With regard to the credibility finding, I think it is important to note that the trial court appears
to have viewed the security tape and disk after the hearing and without assistance from the State or
the defense. From my viewing of the record, it seems clear that Detective Corcoran, a twenty-one-
year veteran of the Metro Nashville Police Department, testified under oath that he could identify
the defendant as one of the persons on the security tape or disk and that, while the gas station disk
was clearer, he could have made an identification from either the security tape or disk. At the
hearing, defense counsel did not contest the detective’s ability to make such an identification.

        Neither the trial court, the majority, or I can make any type of identification from viewing
the security tape or disk. This perhaps provides the major reason the majority is reluctant to disagree
with the trial court’s findings. However, I am convinced that I am not viewing the security tape or
disk under the same conditions in which it was viewed by Detective Corcoran and feel compelled
to voice my concern. First, I have not and cannot review the security tape from the bar because I
have no equipment available with which to review it. Second, the security disk from the gas station
has two scenes which would play on my laptop computer. One scene shows a school bus leaving
the gas station; a man pulling up to the gas pumps and pumping gas to completion, then leaving the


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gas station; five people walking from across the street and through the station lot; and another car
pulling in and out of the station. All of this occurs in less than four seconds on my computer. The
other scene shows five people walking across the street in less than one second. It is as though
everything is one hundred times faster than its actual speed. I am unable to slow the images down.
I would agree that, if Detective Corcoran saw what I saw, he could not have made any kind of
identification and the security disk would, in my opinion, be worthless. But testimony was given
that the system at the gas station was state of the art. With this in mind, and knowing that digital
security devices are designed to allow for multiple views and probable enhancements, I feel I am
unable to make a decision concerning the detective’s credibility without viewing the security tape
or disk on the same type of equipment used by the detective, which I do not have at my disposal.

          I would propose the State be required to provide this court, within thirty days, with access
to the same type of equipment that Detective Corcoran used and be informed whether he viewed
stills, slow-motion, or enhancements of any kind in order that we may assess the likelihood of an
identification.

         Further, I differ from the majority in one other aspect of their opinion as it relates to the
relevant weight placed upon the red van left at the scene of the murder to provide probable cause to
arrest its owner. I see the abandoned red van as providing the detective with the best possible lead
to solving this case and akin to leaving a calling card. A reasonable detective, upon determining that
the probable murderers were connected to the red van in such a manner as to try to leave the scene
in it would surely have probable cause to believe that the owner of the van was involved in the
murder and possessed information that would lead to the arrest of the true killer or killers. Here,
however, Detective Corcoran had even more reliable information about the owner of the van. The
owner lived within two miles of the murder scene. When the probable killers exited the van after
breaking the key off in the ignition, rendering the van incapacitated, they proceeded in the direction
of the defendant’s home. The owner was Hispanic, the same ethnicity as the men witnesses had
described as being involved. From all of the above, I would conclude the detective had probable
cause to arrest the defendant at the restaurant. Thus, his subsequent confession was lawful.




                                                 _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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