State v. Parker
| Decision Date | 23 September 2011 |
| Docket Number | No. E2008–02541–SC–R11–CD.,E2008–02541–SC–R11–CD. |
| Citation | 350 S.W.3d 883 |
| Parties | STATE of Tennesseev.Joshua Lynn PARKER. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
Edward C. Miller, District Public Defender, and Keith E. Haas, Assistant Public Defender, for the appellant, Joshua Lynn Parker.Robert E. Cooper, Jr., Attorney General & Reporter; Gordon W. Smith, Associate Solicitor General; Matthew Bryant Haskell, Assistant Attorney General; and Al Schmutzer, Jr., District Attorney General Pro Tempore, for the appellee, State of Tennessee.
We granted this appeal by the State to determine if the defendant's conviction of second degree murder should be affirmed pursuant to State v. Mellons, 557 S.W.2d 497 (Tenn.1977), despite insufficient evidence to support it. We hold that Mellons does not control the outcome of this case. We also hold that sufficient proof must support every element of the offense of which a defendant is convicted, even where the conviction offense is charged as a lesser-included offense and sufficient proof supports the greater offense. In this case, the trial court erred in charging the jury with second degree murder as a lesser-included offense of first degree felony murder. Because the proof is not sufficient to support it, we must reverse and vacate the conviction of second degree murder. However, because the proof is sufficient to support the offense of reckless homicide, we remand this matter to the trial court for (1) entry of an amended judgment reflecting a conviction of reckless homicide, and (2) sentencing on reckless homicide. The defendant is entitled to no relief on his remaining issues. The judgment of the Court of Criminal Appeals is affirmed in part and reversed in part.
The victim in this case, Ms. Evelyn Lucy Lackey, was sixty-five years old when she was sexually assaulted in her home on the evening of April 8, 2003. Although she was taken to the hospital and discharged in apparent good health after the attack, she was found deceased in her apartment the next day. An autopsy revealed that the cause of death was a subdural hematoma. Murder and attempted rape charges were eventually brought against the defendant Joshua Lynn Parker (“Defendant”), and he was tried before a jury.1 The proof at trial established the following.
Ms. Lackey lived in a building consisting of two apartments, one upstairs and one downstairs. Ms. Lackey lived in the downstairs apartment, and Fred Trentham lived in the upstairs apartment. An exterior door from Ms. Lackey's bedroom led to a staircase that went to the upstairs apartment.
On the evening of April 8, 2003, Ms. Lackey answered a knock at her front door and saw a man she recognized as an acquaintance of her son. The man entered the living room of Ms. Lackey's apartment and subsequently sexually assaulted her in her bedroom. When the assailant heard knocking at the front door, he left Ms. Lackey in her bedroom and went to see about the noise. Ms. Lackey, who had been stripped of her pants and underwear, escaped her bedroom through the exterior door and went up the stairs to her neighbor's apartment.
Fred Trentham testified that he was home on the evening of April 8, 2003. After dark, he heard what sounded like a car pull up, so he looked outside because it was unusual for a car to pull up at that time of night. Unsure of what he had heard, he sat back down. Eight to ten minutes later, he heard an “urgent beating” on his door. He opened the door, and Ms. Lackey was standing there wearing only a shirt. Mr. Trentham told her to come in and gave her a sheet to wrap around herself. He stated that Ms. Lackey was “shaking uncontrollably” and that she was so scared she “couldn't even remember her age.” As he was tending to her, he heard a car pull off, but he did not get a good look at it.
Mr. Trentham asked the victim what had happened, and she told him that she had been “attacked.” Ms. Lackey told Mr. Trentham that she knew her attacker, and he testified that “it was something about someone her son knew on the can crew.” 2 Mr. Trentham called 911, and the police and the ambulance arrived within a few minutes. Mr. Trentham described the victim as appearing older than sixty-five.
On cross-examination, Mr. Trentham acknowledged that the victim could not remember her attacker's name.
Kevin Benton, a deputy sheriff with the Cocke County Sheriff's Department, arrived at 9:13 p.m. He went to Mr. Trentham's apartment and spoke with Ms. Lackey. Deputy Benton described Ms. Lackey as “very distressed, upset.” He asked her what had happened and, over the defense's objection, testified as follows:
She started telling us a story that a gentleman—or that a man had came to her door and knocked. She had opened up the door, looked—or first of all, she had looked out and seen another car sitting—or seen a car sitting there and somebody sitting in it, and whenever she opened the door, this man had pushed his way into the—pushed his way up against her and had her by the throat and took her into the bedroom.
She said that he pushed her down and started—and jerked her pants and her underwear off of her.
Ms. Lackey described her assailant to Deputy Benton as “a white male, approximately five foot nine, long black hair with a goatee, wearing camouflaged pants, ... [with] a tear in the right leg and ... a white Dale Earnhardt shirt.” Ms. Lackey also told Deputy Benton that she recognized the man because he “had been on the can crew with her son.”
An ambulance from Quality Care Ambulance Service arrived at 9:35 p.m., and Ms. Lindsey Ellison, an emergency medical technician, assisted Ms. Lackey. Ms. Ellison described the victim as “wearing a sweatshirt, wrapped in a sheet from the waist down and very anxious and nervous.” Ms. Lackey told Ms. Ellison that she wanted to put some clothes on before going to the hospital, so Ms. Ellison accompanied Ms. Lackey downstairs to her apartment. They walked in through the side door into the victim's bedroom. Ms. Ellison noticed “[p]ants and underwear laying on the floor next to the bed and a ball cap on the bed.” Ms. Lackey identified the ball cap as her attacker's and handed it to Ms. Ellison. Ms. Ellison, in turn, “handed it over to the officer.”
The victim told Ms. Ellison that “a guy came in to get some cigarettes and had talked to her for a while and before he left, he stuck his hand in her private area and attempted to choke her.” Ms. Ellison stated that Ms. Lackey had red marks on her throat that were consistent with her description of having been choked.
On cross-examination, Ms. Ellison acknowledged that there was more than one police officer on the scene while she was there. Ms. Ellison also said that Ms. Lackey told her that the attacker was a friend or acquaintance of Ms. Lackey's son.
Deputy Benton also accompanied Ms. Lackey back to her apartment after the ambulance arrived. He testified that He also saw a Jeff Gordon hat laying on the bed, which was subsequently given to him and which he placed in a plastic bag. Ms. Lackey told him that her attacker had been wearing the hat.
After Ms. Lackey was taken to the hospital, Deputies Benton and Eric Rinehart went to the third floor of the courthouse where the jail was located and talked to the jailer about the participants in the can crew. The jailer gave the officers some photographs to review, and the officers selected two that matched the description given by the victim. Neither of these photographs depicted Defendant. The officers went to the hospital and showed the two photographs to Ms. Lackey. According to Deputy Benton, the victim “said that out of the two ... [the one of Tim Bird] matched more of the description.” She did not identify by name the individual in the photograph. Deputy Benton took Ms. Lackey back to her apartment after she was discharged from the hospital. He did not speak with her again.
On cross-examination, Deputy Benton acknowledged that, on April 17, 2003, he wrote a report about his encounter with the victim. This report was admitted into evidence and provides as follows:
On 8 April 03 at approx 11 PM officers responded to a[n] attempted rape at 492 Hwy 160 Newport TN. Upon arrival officers came into contact with Evelyn Lackey, W, F, DOB 8–27–37. Ms. Lackey told officers that she heard someone knock at her door. When she looked out she reco[g]nized a[n] individual who had been on the can crew with her son, Johnny Lackey. Ms. Lackey said she opened the door and the subject came in. The suspect grabbed Ms. Lackey by the throat and forced her into the bedroom. The suspect then jerked Ms. Lackey's pants and underw[ear] off. Lackey told officers the suspect app[a]rently heard a noise and went to look and Ms. Lackey ran out the side door and ran upstairs to her neighbors. Quality Care [Ambulance Service] was called to the scene. Ms. Lackey and a[n] EMT Ellison entered the home and found a Jeff Gordon hat laying on the bed. Lackey was transported to Baptist Hospital ER by Quality Care. Lackey stayed at the ER for an est[imated] 4 hours. Lackey was transported back to her residence by Dep. Benton who checked the home to make sure it was clear. While at the ER Lackey made a[n] ID on the suspect as Tim Bird. Lackey told officers that a[n] unknown subject stayed in the black vehicle (car) and that it was headed in the direction of Newport.
Melissa Cogdill, a registered nurse at Baptist Cocke County Hospital, testified that Ms. Lackey was admitted to the hospital at 9:53...
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