Finch v. State

• Decision Date: 04 June 2007
• Docket Number: No. M2004-02887-SC-R11-PC.,M2004-02887-SC-R11-PC.
• Citation: 226 S.W.3d 307
• Parties: Ronnie FINCH v. STATE of Tennessee.
• Court: Tennessee Supreme Court

226 S.W.3d 307

Ronnie FINCH v. STATE of Tennessee.

No. M2004-02887-SC-R11-PC.

Supreme Court of Tennessee, at Nashville.

February 1, 2007 Session.

June 4, 2007.

James P. McNamara, Nashville, Tennessee, for appellant/appellee, Ronnie Finch.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark A. Fulks, Assistant Attorney General; Bret T. Gunn, Assistant District Attorney General, for the appellee/appellant, the State of Tennessee.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER and GARY R. WADE, JJ., joined.

The Petitioner, Ronnie Finch, was convicted of one count of facilitation of first degree premeditated murder and two counts of facilitation of attempted first degree premeditated murder. In this post-conviction proceeding, the Petitioner contends that his lawyer provided ineffective assistance at trial. We granted this appeal to determine whether counsel was ineffective in failing to object when the trial court erroneously took his motion for judgment of acquittal under advisement and in continuing to participate in the trial thereafter. Because we hold that defense counsel's representation did not prejudice the Petitioner, we reverse the Court of Criminal Appeals and reinstate the judgments of conviction against the Petitioner.

FACTS

This case arises out of a gunfight in May 1998 that left Ben White dead and Leo White injured. The proof adduced during the State's case-in-chief established that the Petitioner and Jerome Jones argued in front of Jones' residence in the Settle Court Apartments in Nashville, Tennessee. Jones lived in a downstairs apartment toward one end of a two-story building.

Although the Petitioner did not threaten Jones during the argument, Jones spent the rest of the day in his apartment in order to avoid "trouble." Jones testified that when he looked out of his window later that day, he saw the Petitioner "running down the sidewalk with a gun in his hand." Sharon Sanders, who shared Jones' apartment, also saw the Petitioner with a handgun at their building that day.

The next day, the Petitioner came to Jones' apartment accompanied by codefendants Frank Huey and Jeffrey Gills. Jones took the Petitioner and Huey into his bedroom where they could talk privately, as Sanders and numerous children were also in the apartment. Gills remained in the living room. Once in the bedroom, the men accused Jones of having threatened to kill the Petitioner. Huey pulled out a .38 pistol and hit Jones on the head with the gun, causing Jones to bleed. According to Jones, the Petitioner made no attempt to stop Huey. Huey then held the gun to Jones' head and walked him out of the bedroom toward the front door of the apartment. Sanders heard Huey say that he was going to take Jones outside and shoot him. In the living room, Huey encountered Jones' cousin, Michael White, who had just entered the apartment. Huey pointed the gun at White and indicated that the altercation was not his business. Huey then left the apartment through the front door and fired a single shot into the air. The Petitioner and Gills left the apartment through the back door.

Sherry Stevens, Jones' aunt, lived across the street from Jones. She saw Huey leave Jones' apartment and fire a gun into the air. Stevens heard Huey say, "that will teach them to mess with my family."

Following this incident, Jones left his apartment and stayed gone for several hours. He returned during the evening with Harold Blair. Jones was under the impression that Blair was going to provide him a gun for protection. Word of the altercation had spread, and more trouble was feared. Jones' two uncles, Ben White and Leo White, also came over to visit. Leo backed his sedan into a parking space in front of Jones' apartment. Jones testified that Leo had a gun in the trunk of the car that he intended to give Jones for Jones' protection.

According to Jones, his uncles were standing near the trunk of Leo's car, Blair was on the porch in front of Jones' apartment, and Jones was walking away from his uncles and toward the porch when gunfire erupted. Jones testified that the shots were being fired from three locations: from just outside the far front corner of the building in which his apartment was located, from a location between that corner and the near side of the street, and from a location in the street closer to its far side. According to a diagram of the area about which Jones testified, these three spots were in a diagonal line stretching away from the corner of the building to the far side of the street fronting the building. Standing on Jones' porch and looking straight ahead toward the street, this area was to the right of Jones' apartment.

With the eruption of gunfire, Jones ran up on the porch in front of his apartment and joined Blair. The two men then ran up the stairs in the breezeway that ran alongside Jones' apartment. Blair fired a pistol several times toward the area in back of the building. Jones testified that he thought Blair's gun was a .45. Jones did not see anyone else with a gun. Jones testified that he was unarmed and that neither Ben nor Leo was armed when the shooting began.

Leo White testified that he and Ben and Jones were standing around Leo's car while Leo was preparing to open his trunk and show Ben a handgun. As Jones began walking off and as Leo opened the trunk, gunfire erupted. Leo explained that he was facing his trunk and the shots were coming from his right. Leo turned to his left and ran to hide between his car and the car next to it. Ben was right behind him. Leo testified that he heard five shots, with the last one hitting him in the back of his leg. He ducked beside his car, "on the opposite side of the car from where the shots were coming from." His brother was lying down at the back of the car, shot. Once the shots started, Jones "went towards his apartment." Leo stated that, once he was shot, he did not hear anything else. Ben was shot twice and died from his gunshot wounds.

Sherry Stevens also witnessed the beginning of the gunfight. As she was preparing to cross the street toward Jones' apartment, she looked to her left and saw Gills in the street walking toward the building in which Jones' apartment was located. She also saw the Petitioner and Huey coming around the far corner of that building toward the street. Gills, Huey, and the Petitioner congregated in the same general vicinity. As Stevens crossed the street, she saw Gills point a handgun toward Leo and Ben and begin to shoot. She ran and sought cover in Jones' apartment.

Other witnesses also saw portions of the gunfight. Sanders was on the porch of Jones' apartment when the shooting began. She saw Gills standing in the street and pointing a gun at Jones' apartment. Christopher Works saw Huey at the side of the building with a rifle. According to Works, that is the location from which the shooting began. Works' mother, Janice Goff, also saw Huey at the side of the building. Goff saw Huey shooting the gun, which she described as longer than a pistol and appearing "sawed-off." Goff also saw a man in the middle of the street with a gun the size of a pistol.

Officer Matt Pilcus of the Metro Police Department was the first officer on the scene. He was less than two blocks away when the gunfight began. Officer Pilcus testified, "It sounded like the 4th of July when you take a whole pack of firecrackers and you light up the whole pack. I mean, it was just round after round after round simultaneous." When he arrived, he got out of his patrol car and heard one of the victims moaning. As he tended to the Whites, an unidentified black male claiming to be a family member came over and became disruptive. Officer Pilcus did not describe any other persons attempting to render aid until medical personnel arrived. Officer Pilcus saw no weapons near the victims.

The police recovered numerous shell-casings and projectiles from the scene. Nine nine-millimeter shell casings were found in the area of the porch in front of Jones' apartment. One .45 caliber shell casing was found in this same area; three other .45 caliber shell casings were found behind Jones' apartment. One .38 caliber bullet was found in the breezeway behind the porch. In the area extending from the far front corner of the building into the street, where the three defendants were observed, fourteen nine-millimeter shell casings fired from two different weapons and three 7.62 × 39 caliber shell casings were found. The police also obtained a bullet recovered during Ben White's emergency-room treatment.

Steve Scott, from the Tennessee Bureau of Investigation crime laboratory, testified that thirteen of the fourteen nine-millimeter shell casings found in the area where the defendants had been seen were fired from a single nine-millimeter gun. One of the nine-millimeter shell casings found in this area was fired from a different nine-millimeter weapon. The three 7.62 × 39 caliber shell casings also found in the area where the defendants had been seen were fired from at least one additional gun, one or more rifles.¹ Scott testified that 7.62 × 39 caliber shells are the typical ammunition fired from Chinese SKS-type or Russian AK47 rifles. Scott identified the bullet recovered during Ben White's emergency treatment as "a 7.62 by 39 caliber fired bullet." Each of the nine-millimeter shell casings recovered from the porch area of Jones' apartment were fired from a third nine-millimeter gun. The four .45 caliber shell casings recovered from the porch area and behind Jones' apartment were all fired from yet another gun.

The Petitioner, Huey, and Gills were indicted jointly for one count of first degree premeditated murder, two counts of attempted first degree premeditated murder, two counts of aggravated assault with a deadly weapon, and one count of felony endangerment. The three men were tried...