State of Tennessee v. Shawn Rafael Bough

This case presents an appeal to this Court after remand by order of the Tennessee Supreme Court. The appellant, Shawn Rafael Bough, was convicted by a Knox County Jury of felony murder and especially aggravated robbery. The original opinion of this Court in this matter was released on January 12, 2004, and the appellant filed an application for permission to appeal. See State v. Shawn Rafael Bough, No. E2002-00717-CCA-R3-CD, 2004 WL 50798 (Tenn. Crim. App. at Knoxville, Jan. 12, 2004), affirmed in part, reversed in part, and remanded by State v. Bough, ___ S.W.3d ___, 2004 WL 2481367. The supreme court granted the permission to appeal on May 24, 2004. In our original opinion, we determined that (1) because the appellant's first motion for new trial was not timely filed in regards to the felony murder conviction and an untimely notice of appeal resulted, the appellant waived all issues except for sufficiency of the evidence in regards to the felony murder conviction; (2) because the appellant's amended motion for new trial and second amended motion for new trial were likewise deemed untimely by this Court, the only other issues remaining were those raised in the initial motion for new trial that relate to the conviction for especially aggravated robbery. As a result of the procedural determinations, we addressed the following issues in regards to the conviction for especially aggravated robbery on direct appeal: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; (2) whether the evidence was insufficient to support the conviction for especially aggravated robbery; and (3) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. As a result, we concluded that the evidence was sufficient to sustain the convictions. Further, we could find no error requiring reversal of the judgments of the trial court. The supreme court determined on appeal that the original motion for new trial, as well as the two amended motions for new trial, were timely filed as to both convictions, effectively affirming in part, reversing in part, and remanding the case to this Court for consideration of the issues that were pretermitted by our procedural rulings in the original opinion. See State v. Bough, ___ S.W.3d ___, 2004 WL 2481367 (Tenn. 2004). The following issues were not addressed by this Court due to our determination that the motion for new trial was untimely as to the appellant's felony-murder conviction and thus must be addressed on remand: (1) whether the trial court erred in allowing the State to comment on the appellant's failure to produce a witness; and (2) whether the trial court erred in failing to instruct the jury regarding the corroboration of accomplice testimony and out-of-court confessions. The following issues were pretermitted on direct appeal by our conclusion that the amended motion for new trial was untimely: (1) whether the trial court erred by admitting the 911 tape of the victim; (2) whether the trial court erred in allowing jurors to take notes and ordered the notes to be destroyed prior to deliberation; (3) whether the trial court erred in allowing the State to exhibit the appellant and the co-defendant to the jury shortly before the 911 tape was played; (4) whether the trial court erred in allowing the State to infer criminal conduct of the appellant due to his association with known criminals and drug dealers. After consideration of these remaining issues, we affirm the judgment of the trial court.