State v. Alston

Decision Date30 May 2013
Docket NumberNo. E2012-00431-CCA-R3-CD,E2012-00431-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. LARRY JERELLER ALSTON, KRIS THEOTIS YOUNG, AND JOSHUA EDWARD WEBB
CourtTennessee Court of Criminal Appeals

Appeal from the Criminal Court for Knox County

Nos. 94647 A, B, & C

Mary Beth Liebowitz, Judge

In this appeal as of right, the State challenges the Knox County Criminal Court's setting aside the jury verdicts of guilty of especially aggravated kidnapping, aggravated burglary, and possession of a firearm with intent to go armed during the commission of a dangerous felony and ordering dismissal of the charges. Because the trial court erred by setting aside the verdicts and dismissing the charges of especially aggravated kidnapping and aggravated burglary, the jury verdicts are reinstated, and the case is remanded to the trial court for sentencing. Although the trial court erred by dismissing the firearms charge on the grounds named in its order, error in the indictment for that offense nevertheless requires a dismissal of those charges. Finally, the defendants' convictions of aggravated robbery and the sentences that accompany them are affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Reversed

and Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the Court, in which NORMA MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Robert E. Cooper, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney Genera; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellant, State of Tennessee.

Mike Whalen, Knoxville, Tennessee, for the appellee, Joshua E. Webb.

Sherif Guindi, Knoxville, Tennessee, for the appellee, Larry J. Alston.

Robert R. Kurtz (on appeal) and Vanessa Lemons (at trial), Knoxville, Tennessee, for theappellee, Kris T. Young.

OPINION

On the afternoon of April 15, 2010, three armed men confronted the victim, Carolyn Sue Maples, in front of her Knoxville residence and demanded her purse before ordering Ms. Maples inside her house. A neighbor who witnessed the incident telephoned police, and the three defendants were apprehended a short time later just outside Ms. Maples' residence.

At trial, Ashley Dawn Hill testified that on April 15, 2010, at approximately 1:45 p.m., she was sitting on the front porch of her Chicago Avenue residence when she saw two black men with dread locks and a white man with glasses walking down the middle of the street toward the victim's residence. At one point before they reached the victim's residence, the men attempted to stop a car, but the car would not stop. Ms. Hill said that she went inside her house briefly, and when she returned to the porch, she saw the victim walk around her car, which was parked in front of her house, to get in. At that point, the men approached the victim and said, "'Excuse me.'" Ms. Hill looked down momentarily and then heard the victim scream. Ms. Hill testified that when she looked up, she saw one of the black men grab the victim's purse. The victim got out of her car and ran toward her house, "and they followed her into the house." At that point, Ms. Hill telephoned 9-1-1.

Carolyn Sue Maples testified that on April 15, 2010, she lived at 2118 Chicago Avenue with her husband Harvey Hahn, who was in the hospital being treated for throat cancer. On that date, at approximately 1:45 p.m., Ms. Maples went outside to get into her car to go pick up her daughter and grandchild so that they could visit her husband in the hospital. Ms. Maples recalled that when she exited her house, she saw three men, two black and one white, walking toward her. She said that she walked to the car, opened the door, and, just as she began to get in, the "big" black man asked if she knew a particular girl. Ms. Maples responded that she did not and turned to get in the car. She said, "The next thing I know there were guns to my head."

Ms. Maples testified that the two black men pointed guns at her and that one of the men demanded first that she give him her purse and then that she "'get to the house.'" She said that "the big one" took her purse as she got out of the car. The men then "pushed [her] to go open the door to the house." Ms. Maples testified that she was so scared that she had difficulty opening the door. Once inside the house, the men pushed her onto the couch and began ransacking her home. She recalled, "They wanted my money; they wanted my jewelry; they wanted anything I had." She said that the men took $140 from her wallet along with her bank card. "The big one" demanded that she provide her "bank number" so thatthey could access her account. Ms. Maples recalled that the white perpetrator had "a sawed-off shotgun . . . stuffed down in his pants," and the two black men had pistols.

As Ms. Maples remained confined to the couch, "[t]he big one" took two flat screen televisions and walked toward the door. At that point, the man said, "'Oh, f***, there's the law'" and then "took off towards the one in the kitchen." When the man ran away, Ms. Maples was able to escape through the open front door. When she got outside, "the lady cop" told her to "[g]o somewhere and . . . get where nobody can see you." She noted that the men had left the house in disarray. She identified all three defendants at trial, designating Mr. Young as "the big one."

Knoxville Police Department ("KPD") Officer Amanda Bunch testified that at approximately 1:41 p.m., she was diverted from another call to respond to Chicago Avenue to investigate a report that "three males force[d] a lady back into her house at gunpoint." Officer Bunch recalled that she deactivated her emergency equipment as she pulled onto Chicago Avenue, parked her car a safe distance from the given address, and proceeded toward the house on foot. She took a position behind a tree and waited for backup to arrive. O fficer Bunch testified that two other officers arrived nearly simultaneously to one another and that, at that point, the front door opened and a black male carrying a television set began to exit. From her position behind the tree, Officer Bunch saw the individual drop the television and run back into the house. She said that the other two officers went to the back of the house while she took a closer position in the driveway of the residence. When someone approached the front door a second time, Officer Bunch shouted, "[G]et on the ground." The victim shouted, "[I]t's me," and Officer Bunch motioned for the victim to come into the driveway.

Officer Bunch testified that other officers placed one subject in custody at the back of the house. Officer Dean Ray arrived with his police dog, and officers went to the house and released the dog inside. She said that the dog drove the other two suspects onto the back deck, where they were placed into custody. She handcuffed the white male, identified as Mr. Webb, and performed a search of his person. Officer Bunch testified that she discovered "[t]wo five-dollar bills, a lighter, his wallet, . . . a gold kind of bracelet chain type thing, and . . . a pill bottle." The victim's name was on the pill bottle.

KPD Officer Tim Riddle responded to the call on Chicago Avenue to assist other officers. He said that when he arrived he observed Officer Bunch behind a tree, so he also "took cover next to a tree just in case someone come (sic) out shootin'." From his position, Officer Riddle could see both the front and rear exits of the home. As he looked toward the house, Officer Riddle observed a black male "carrying out some materials." When the officers "began to give verbal commands," the individual dropped what he wascarrying and went back into the house. Shortly thereafter, he saw an elderly, white woman run from the front door and a black male "trying to run out the back door." The black male was apprehended by Officer John Stevens, who had taken a position in the back alley. Officer Riddle radioed for K-9 assistance. The K-9 Officer arrived, warned occupants of the house that the dog was going to be released, and then "a white male and a black male comes out the back door and gives up." Officer Riddle placed the second black male, identified as Mr. Young, into custody.

KPD Officer John Stevens also responded to the call of "a home invasion in progress, that there was three suspects at the time, all armed, and had forced a . . . victim back into her residence on Chicago Avenue." When he arrived, he took a position that allowed him to "observe the rear exit of the residence." Officer Stevens recalled that Mr. Alston was the first to exit, followed quickly by Messrs. Webb and Young. Mr. Alston, he said, cooperated with officers' commands and got down to the ground immediately. Officer Stevens placed Mr. Alston in custody and searched his person. Mr. Alston had $110 in cash and the victim's automatic teller machine ("ATM") card on his person.

KPD Forensic Officer Russ Whitfield took photographs and collected evidence at the Chicago Avenue scene. Among the items he collected were a loaded Ruger pistol, a loaded High Point nine millimeter pistol, and a loaded Stevens .20 gauge pump-action, sawed-off shotgun. All of the weapons were swabbed to collect DNA.

At the conclusion of this proof, the State rested, and the defendants moved the trial court to dismiss the charges of especially aggravated kidnapping and aggravated burglary based upon due process principles as announced in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and its progeny. The trial court reserved ruling on the motion until after the jury rendered its verdicts. The defendants elected to present no proof.

Based upon the proof presented by the State, the jury convicted all of the defendants as charged of especially aggravated kidnapping, aggravated burglary, aggravated robbery, and possession of a firearm with the intent to go armed during the commission of a dangerous felony. Following the jury verdicts, ...

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  • State v. Duncan, W2013-02554-SC-R11-CD
    • United States
    • Tennessee Supreme Court
    • October 14, 2016
    ...App. July 16, 2015) ; Duncan, 2014 WL 4243746, at *6–9 ; Brewer, 2014 WL 1669807, at *30 ; State v. Alston, No. E2012–00431–CCA–R3–CD, 2013 WL 2382589, at *14 (Tenn. Crim. App. May 30, 2013), perm. app. granted, cause remanded(Tenn. Jan. 17, 2014). First we consider the defendant's contenti......

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