State v. Alajemba

• Decision Date: 12 November 2014
• Docket Number: No. M2013-00968-CCA-R3-CD,M2013-00968-CCA-R3-CD
• Court: Tennessee Court of Criminal Appeals
• Parties: STATE OF TENNESSEE v. JONATHAN ALAJEMBA

STATE OF TENNESSEE
v.
JONATHAN ALAJEMBA

No. M2013-00968-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

Assigned on Briefs May 13, 2014
November 12, 2014

Appeal from the Circuit Court for Rutherford County
Nos. F-63339A, F-67470
David Bragg, Judge

The defendant, Jonathan Alajemba, appeals his Rutherford County Circuit Court jury convictions of felony murder, second degree murder, attempted first degree murder, attempted voluntary manslaughter, aggravated assault, reckless aggravated assault, aggravated burglary, attempted especially aggravated robbery, and facilitation of conspiracy to commit especially aggravated robbery, claiming a violation of his right to a speedy trial; that the trial court erred by denying his motion to suppress the statement he made to police and his motion for transcription of witness statements; that the trial court erred by declaring a witness unavailable for the purpose of admitting prior testimony; that the evidence was insufficient to support his convictions of first degree felony murder, facilitation of conspiracy to commit especially aggravated robbery, attempted especially aggravated robbery, and aggravated burglary; that the trial court made several erroneous evidentiary rulings; and that the State committed prosecutorial misconduct during closing argument. Because the evidence was insufficient to support the convictions of aggravated burglary and felony murder in the perpetration of or attempt to perpetrate a burglary, those convictions are reversed, and the charges are dismissed. The felony murder convictions predicated upon robbery and theft remain unaffected. The trial court's judgments are affirmed in all other respects.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed in Part; Reversed and Dismissed in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS and ROGER A. PAGE, JJ., joined.

L. Gilbert Anglin, Murfreesboro, Tennessee, for the appellant, Jonathan Alajemba.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William C. Whitesell, Jr., District Attorney General; and Trevor Lynch and Shawn

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Puckett, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

On December 9, 2008, the defendant fatally shot Tommy Moss and wounded Kaitlynn Kennedy. Through the aid of accomplices, he wounded David Tompson and Jeff Fogle during a failed attempt to steal drugs from Mr. Moss at Mr. Moss's residence. The Rutherford County grand jury charged the defendant, along with Bobby Joel Wilson,¹ with 17 offenses. Disposition of the charges resulted from two separate trials, occasioned by mistrials on some of the charges at the conclusion of the first trial. At the conclusion of the second trial, the trial court imposed seven total convictions occasioned by merger of several different guilty verdicts. In order to enhance understanding of the resulting complexity of the charges and convictions, the court offers the following chart:

COUNT	CHARGE (VICTIM)	FIRST TRIAL RESULT	SECOND TRIAL RESULT	CONVICTION (VICTIM)
1	Conspiracy To Commit Especially Aggravated Robbery	Guilty of Lesser Included Offense	Facilitation of Conspiracy to Commit Especially Aggravated Robbery
2	Attempted Especially Aggravated Robbery (Moss)	Guilty	Attempted Especially Aggravated Robbery (Moss)
3	First Degree Premeditated Murder (Moss)	Not Guilty; Unable to Reach Verdict on Lesser Included O ffense of Second D egree Murder	Guilty	Second Degree Murder (Moss)
4	First Degree Felony M urder in the perpetration of or attempt to perpetrate a Murder (Moss)	Not Guilty
5	Attempted First Degree Murder (Kennedy)	Guilty	Attempted First Degree Murder (Kennedy)
6	Attempted First Degree Murder (Tompson)	Guilty of Lesser Included Offense	Attempted Voluntary Manslaughter (Tompson)

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7	Attempted First Degree Murder (Fogle)	Guilty of Lesser Included Offense	Attempted Voluntary Manslaughter (Fogle)
8	Aggravated Assault by use or display of a deadly weapon (Kennedy)	Guilty	Aggravated Assault (Kennedy)
9	Aggravated Assault by causing bodily injury (Kennedy)	Guilty	Aggravated Assault (Kennedy)
10	Aggravated Assault by use or display of a deadly weapon (Tompson)	Guilty of Lesser Included Offense	Reckless Aggravated Assault (Tompson)
11	Aggravated Assault by causing bodily injury (Tompson)	Guilty of Lesser Included Offense	Reckless Aggravated Assault (Tompson)
12	Aggravated Assault by use or display of a deadly weapon (Fogle)	Guilty of Lesser Included Offense	Reckless Aggravated Assault (Fogle)
13	Aggravated Assault by causing bodily injury (Fogle)	Guilty of Lesser Included Offense	Reckless Aggravated Assault (Fogle)
14	Aggravated Burglary (Moss residence)	Guilty	Aggravated Burglary
15	First Degree Felony Murder in the perpetration of or attempt to perpetrate a Robbery (Moss)	Unable to Reach Verdict	Guilty	First Degree Felony Murder (Moss)
16	First Degree Felony Murder in the perpetration of or attempt to perpetrate a Theft (Moss)	Unable to Reach Verdict	Guilty	First Degree Felony Murder (Moss)
17	First Degree Felony Murder in the perpetration of or attempt to perpetrate a Burglary (Moss)	Unable to Reach Verdict	Guilty	First Degree Felony Murder (Moss)

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I. Trial One

The trial court conducted the initial trial in July 2011. Lindsay Callahan, a dispatcher with Murfreesboro Police and Fire 911 Communications, testified that, on December 9, 2008, she received two telephone calls at 8:58 p.m. regarding a shooting on Searcy Street.

Officer Michael Levy with the Murfreesboro Police Department ("MPD") testified that he responded to a call of a shooting on Searcy Street on December 9. Officer Levy arrived on the scene at 9:00 p.m. along with his field training officer, Gabriel Besleaga. Upon arrival, Officer Levy "immediately noticed a black male, who [was] later identified as Tommy Moss, laying face down in the gravel driveway in front of the residence." Officer Levy could not find a pulse on the victim. While checking on the victim, Officer Levy observed two white males leaving the residence; the men were later identified as Randall Mansell and Shawn Sherfield. After Officer Levy entered the residence, he found a black female, later identified as Kaitlynn Kennedy, lying face down on the living room floor between a sofa and a coffee table; Ms. Kennedy had suffered a gunshot wound to the upper left side of her chest. Officer Levy applied pressure to the wound until emergency medical personnel arrived.

MPD Sergeant Cary Alan Gensemer testified that, in December 2008, he served as supervisor of the crime suppression unit. Sergeant Gensemer arrived at the Searcy Street scene at approximately 9:04 p.m. on December 9 and noticed "a person on the ground in the driveway of the residence that appeared to be unresponsive." When Sergeant Gensemer entered the residence, he encountered Ms. Kennedy on the floor of the living room and noticed that she "was struggling to breathe." Sergeant Gensemer also found an injured white male lying in the small hallway off the living room who "appeared to have been suffering from a gunshot wound to the chest." The man, later identified as Jeff Fogle, was conscious and told Sergeant Gensemer that "B.J. shot him." Sergeant Gensemer asked Mr. Fogle if B.J. had come to the house to rob him, and Mr. Fogle responded that B.J. "was already there." While conducting a sweep of the house, Sergeant Gensemer located a blue steel revolver on the stairs leading to the upstairs area.

MPD Detective Katrina Henderson testified that she was called to investigate the scene of the shooting at the Searcy Street residence. When she arrived, it was raining very hard, "almost like a monsoon." She first noticed a body lying in the driveway, with a car located directly behind the body, and she observed that a glass door on the front of the house was broken. Upon entering the residence, she saw a "red substance" on the floor and sofa, holes in the wall, and live ammunition throughout the house. Detective Henderson also observed a revolver lying on the staircase "with red substance about it" and broken glass in

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the small hallway near the kitchen. The live ammunition Detective Henderson found was primarily .22 caliber, although she also located some nine-millimeter, .380, and .357 ammunition. With respect to the nine-millimeter ammunition, Detective Henderson located a magazine on the living room computer desk which contained some live ammunition; no nine-millimeter handgun was ever recovered. Detective Henderson retrieved the revolver found on the staircase, finding that it contained the casings of ammunition that had been fired as well as one live round. In the west bedroom on the first floor of the residence, Detective Henderson recovered a pink and silver handgun that contained no magazine or ammunition. In the living room, Detective Henderson found a bag containing a "green leafy substance," which the Tennessee Bureau of Investigation ("TBI") crime laboratory later confirmed to be marijuana. Detective Henderson observed a folded $20 bill lying on the living room floor in front of the sofa and a set of electronic scales containing a green, leafy residue on a living room table. Detective Henderson also observed a hole, believed to be a bullet hole, in the back of the black office chair located near the living room computer desk. She also found, in the east bedroom of the residence, a glass pipe containing what appeared to be marijuana residue.

Doctor Amy R. McMaster, chief medical examiner for Davidson County and chief medical officer for Forensic Medical Management Services, testified that she performed the...