Tennessee judge must turn trial recordings over to convicted killer

A state appellate court is ordering an East Tennessee judge to turn over trial audio recordings he’s kept locked away in his office in a bid to keep the convicted killer he sent to prison from obtaining a copy.

In a first of its kind ruling, the Tennessee Court of Appeals says in a decision made public this week that audio recordings of criminal trials are public records under state law, and 8th Judicial District Criminal Court Judge Shayne Sexton should not have withheld from convicted killer Kevin Lee Waggoner a copy of audio from Waggoner’s trial.

“The record on appeal establishes that Judge Sexton currently has possession of the only copy of the audio recordings,” Appellate Judge Kristi M. Davis wrote in the opinion. “In congruence with (state law), the recordings must be immediately filed with the criminal court clerk for storage.

“For more than a century, Tennessee courts have recognized the public’s right to inspect governmental records,” Davis wrote. “This right extends to court records … The (Tennessee Public Records Act) governs access to public records and is intended to provide a tool to hold government officials and agencies accountable to the citizens of Tennessee through oversight in government activities.

“There can be no doubt, then, that the audio recordings are public records for purposes of the act,” the opinion stated.

Sexton, who is retiring at the end of this month, did not respond to a request for comment. It is unknown if he routinely keeps criminal trial audio recordings in his office or only did so in Waggoner’s case.

All criminal trials in Tennessee are recorded by a court reporter, who is supposed to file those recordings and a transcript made from those recordings with the court clerk in each respective county in which a trial is held.

Waggoner, a former Knox County school security officer convicted in the 2013 shooting death of his neighbor in Union County, has been fighting from behind bars for a copy of the audio recordings from his trial.

Waggoner, who is serving an 18-year prison term for second-degree murder, represented himself in the public records act lawsuit against Sexton and Union County Criminal Court Clerk Barbara Williams. Waggoner has argued he believes there are “discrepancies” between what occurred at his 2016 trial and what the written transcript of the trial shows, and that he needs a copy of the original audio recordings to determine if his belief is true.

Judge: Convicted killer might alter recordings

Waggoner was working as a security officer at Shannondale Elementary School when a nearly three-year feud with neighbor Michael Woodby, 45, ended with Woodby fatally shot four times, his body lying in a ditch several yards off state Highway 370 in Union County.

Just three days before the fatal shooting, Waggoner sent copies of video surveillance he and his family had been conducting to document their grievances against Woodby to local media outlets. Trial testimony would later show the Waggoner family had a history of feuds with neighbors, each characterized by video surveillance by the entire Waggoner family and angry confrontations.

The Waggoners videoed every bout in their feud with Woodby — except the shooting — and even recorded audio of police scanner traffic indicating that Woodby’s body was on its way to the morgue.

Waggoner contended he only shot Woodby after he attacked his adult son with a stick Woodby used as a cane. State prosecutors contended Waggoner ambushed Woodby when Woodby went for his nightly walk alongside the road that separated the two men’s homes.

Waggoner’s first trial in 2015 ended in a hung jury. He was convicted after a second trial a year later. Sexton sentenced him to 18 years in prison.

After Waggoner was convicted, he first sought a copy of the audio recording of his trial from Sexton during a motion hearing. Sexton refused the request. Waggoner then began filing requests for the audio via the Tennessee Public Records Act and eventually sued Sexton and Williams in Davidson County Chancery Court.

As part of that litigation, Sexton filed an affidavit saying trial audio recordings are not “part of the official record of Mr. Waggoner’s trial proceedings” and that he was keeping the Waggoner trial audio in his office because he feared Waggoner would tamper with it.

“The proof at trial established that (Waggoner) and his family were technophiles, very adept and skilled with electronic recording equipment both video and audio, and, in fact, (Waggoner) recorded his own 911 call to the police after killing the victim,” Sexton wrote in the affidavit.

“In addition, during the course of (Waggoner’s) trial, other members of his family engaged in conduct intended to disrupt the proceedings, including attempts on their part to record the court proceedings via a cell phone and/or transmit the court proceedings via cell phone over the internet,” Sexton continued.

“I prohibited these efforts,” the judge wrote. “It was, and continues to be, a concern of the court that if (Waggoner) is provided the audio recording of the proceedings or even a copy of the audio recording, he or members of his family will attempt to alter the recording in some fashion to create the appearance of an inaccuracy in the official trial transcript. To reiterate, the audio recording, which is in the possession of my office, is not part of the official record of Mr. Waggoner’s trial proceedings.”

Court: Attorney General contradicts own opinion

Davidson County Chancellor Patricia Head Moskal sided with Sexton. Waggoner appealed. In its ruling this week, the appellate court rejected Sexton’s arguments and struck down Moskal’s ruling.

“Judge Sexton in his sworn statement expressed concern that (Waggoner) could alter the audio recordings,” the court stated. “Nonetheless, the same could be said for any electronic subject to disclosure, and this argument is not grounded in any legal authority.

“While (Sexton) argued in the trial court that (Waggoner) might alter the audio recording, this is not a firm basis for denial of an otherwise public record inasmuch as the same could be said for nearly any public record,” the court stated. “Nor is the criminal court clerk required to provide (Waggoner) with the only copy of the recordings.”

The Tennessee Attorney General’s office represented Sexton in the litigation and argued on his behalf that trial audio recordings are not public record and do not have to be retained as public records in the clerk’s office.

But the appellate court pointed out the AG’s office was contradicting its own previously-published opinion.

“The Attorney General of Tennessee (in a 2008 advisory opinion) … concluded that if a court reporter utilizes audio recording devices or stenography to make verbatim recordings of a proceeding in a criminal case, the reporter must file the resulting recordings or stenographic notes with the court clerk, who shall preserve them as part of the records of the trial,” the appellate court stated.

“We are particularly persuaded by the (2008) opinion of the Attorney General in (Waggoner’s) case because it squarely answers the question before us, no appellate court of Tennessee has concluded otherwise, and the (2008) opinion has been held out to the courts of this state as the authority on (state law,)” the appellate court continued.