State v. Anthony, No. W2002-01377-CCA-R3-CD (Tenn. Crim. 12/30/2003)
| Decision Date | 30 December 2003 |
| Docket Number | No. W2002-01377-CCA-R3-CD.,W2002-01377-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. ANDRE ANTHONY. |
| Court | Tennessee Court of Criminal Appeals |
Scott Hall, Memphis, Tennessee, for the appellant, Andre Anthony.
Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William L. Gibbons, District Attorney General; Steve Jones, Assistant District Attorney; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
Following a jury trial, Defendant, Andre Anthony, was convicted of two counts of forgery over five hundred dollars, one count of forgery over one thousand dollars, one count of criminal attempt to commit first degree murder, and one count of especially aggravated robbery. In his appeal, Defendant argues that (1) the evidence was insufficient to find him guilty beyond a reasonable doubt of attempt to commit first degree murder and especially aggravated robbery; (2) the trial court erred in denying Defendant's motion to suppress evidence obtained through an inventory search of Defendant's vehicle; (3) the trial court erred in failing to instruct the jury that "serious bodily injury" is an element of the offense of especially aggravated robbery; and (4) the trial court erred in ordering Defendant's sentences for attempt to commit first degree murder and especially aggravated robbery to be served consecutively. After a thorough review of the record, we affirm the judgments of the trial court.
The victim, Jack Scott, was working alone in his store on July 16, 1999. Shortly before closing, a man entered the store. Mr. Scott recognized the man because he had visited the store about a week earlier. On the first visit, the man and Mr. Scott had a lengthy discussion about two water fountains in which the man had expressed an interest in purchasing. The two men continued this discussion on July 16 during the man's second visit to the store. After a few minutes, Mr. Scott offered to reduce the price of the "trout lily" fountain by twenty dollars and began filling out a sales receipt. The man suddenly pulled out a handgun and demanded Mr. Scott's wallet. After Mr. Scott gave the man his wallet, he struck Mr. Scott with the fist that held the gun and then began to repeatedly kick and choke him. During the attack, the man kept asking Mr. Scott to repeat the personal identification number for his ATM card. He told Mr. Scott that he would come back and kill him if the number was incorrect. Eventually, the man dragged Mr. Scott into the bathroom by his shirt. Mr. Scott tried to close the bathroom door with his foot, but the man came into the bathroom, kicked Mr. Scott again, and asked him to repeat his PIN. Mr. Scott heard the man rummaging around the store and pulling out drawers. The attack lasted about fifteen or twenty minutes.
After the man left, Mr. Scott waited five minutes and then crawled to the counter and pushed the alarm button. He then half-crawled, half-stumbled to a nearby business and summoned an ambulance and the police.
At trial, Mr. Scott identified Defendant as the man who attacked him. Mr. Scott testified that as a result of the attack, two of his ribs were broken, three teeth were knocked out, his left ear was detached, and he needed over eighty stitches to repair the injuries to his face. He lost twenty pints of blood and was on a respirator for six days because of a collapsed lung.
Mr. Scott said that Defendant removed the cash from the cash drawer while he was in the store. Six credit cards and three blank checks that had been in his attache case were also missing as well as the "trout lily" water fountain. After the attack, Mr. Scott attempted to close his credit card accounts but one account was inadvertently left open. On August 24, his bank called and said that someone had tried to use Mr. Scott's credit card on the open account.
Also on August 24, Lieutenant Joe Scott, a sergeant with the Memphis Police Department at the time of the offense, and also not related to the victim, brought Mr. Scott a photographic line-up consisting of six pictures. Mr. Scott said that Lieutenant Scott told him that a suspect had been arrested in his case but did not tell him the suspect's name or where he had been arrested. Mr. Scott immediately identified Defendant as his assailant from the photographs. Mr. Scott said that Lieutenant Scott gave him an extra copy of the photographic lineup when he left. Mr. Scott kept the copy in his personal file pertaining to the offense and admitted that he had the copy of the lineup with him at the preliminary hearing when he again identified Defendant as his assailant. Mr. Scott, however, denied that he looked at his copy of the lineup prior to this identification in court.
On cross-examination, Mr. Scott said that he did not remember if Defendant had a tattoo at the time of the attack. Mr. Scott explained at trial that although he had previously described Defendant as clean-shaven, Defendant had a "dark growth" of beard at the time of the offense. Mr. Scott said that he suffered from double vision in his left eye at the time he made an identification from the photographic lineup, but his vision in that eye was not blurred. When he looked at something, Mr. Scott explained, the images were initially clear. In a few minutes, however, the images would separate so that he saw two rather than one image. Mr. Scott said he wore his reading glasses during the identification process. Mr. Scott said that Defendant did not fire his gun during the attack, and that he did not attempt to resist Defendant's attack.
Sergeant A. J. Kant testified that Lieutenant Scott asked him to return to the victim's store the day after the offense. Some pieces of evidence had been overlooked during the initial search including some fragments from a pistol's grip. Sergeant Kant said that no prints were recovered at the scene or on the gun pieces.
Chaundrea Sains and her son were living with Defendant at the time of the offense. She said that Defendant owed her stepfather around $7,000 and apparently had not been making rent payments on the couple's house although Ms. Sains gave Defendant her share of the rent each month. Ms. Sains said that she owned a Nissan Altima and that Defendant usually drove her to work because his car was broken. She assumed therefore that Defendant was driving her car on July 16.
A couple of days after July 16, Defendant's mother told Ms. Sains that she had heard a broadcast that the police were looking for a gold Altima driven by a black male. Ms. Sains relayed that information to Defendant and told him to be careful. She said she did not think that Defendant had done anything wrong, but she was concerned for his safety because he drove an Altima.
Defendant left the couple's home a few days later. He told Ms. Sains over the telephone that he was in rehabilitation and could not be visited by his family. Ms. Sains said Defendant called every other day, and she saw him briefly on two occasions. During one call, Ms. Sains heard a baby crying in the background, and Defendant explained that he was in Arkansas visiting his son. Ms. Sains said that she did not believe Defendant was in rehabilitation but felt that he just needed some time apart. She denied that she and Defendant were having problems at the time of the offense.
Ms. Sains said that Defendant always wore a beard like the one he had at the trial and that Defendant had a tattoo on his leg. She also thought Defendant had a tattoo on his arm, but the tattoo Defendant had on his arm at trial was not like the tattoo he had before. Ms. Sains said that she never saw the "trout lily" water fountain.
Jeff Tow, an officer with the Memphis Police Department, responded to a report from a Powertel employee that someone was attempting to use a stolen credit card to make a purchase. When he arrived, one of the employees pointed at Defendant who was at a sales counter filling out a service contract. Officer Tow noticed that the contract was in the name of "Jack Scott" and asked Defendant his name. Defendant told Officer Tow his name and said that the credit card belonged to his uncle. Officer Tow handcuffed Defendant and asked for his identification. Defendant told him his wallet was in his car. Officer Tow escorted Defendant to the squad car and ran the name "Jack Scott" through the computers while another officer searched Defendant's car for his wallet. Defendant was in the back seat of the police car when the information that the credit card had been taken in a robbery came over Officer Tow's radio. Defendant told Officer Tow that he had found the credit card.
Marquis Collier, a patrol officer, arrived at the scene after Defendant was arrested and inventoried Defendant's car prior to its impoundment. Officer Collier found three checks on Mr. Scott's bank account made out to Defendant and signed "Jack Scott" as payor. The first check was in the amount of $600.00 and dated July 16, 1999. The second check was in the amount of $1,200.00 and dated August 19, 1999. The third check, also dated July 16, 1999, was in the amount of $600.00. Although the inventory revealed various personal items and recently purchased merchandise, the trial court only admitted into evidence, in addition to the three checks, the victim's credit cards and driver's license, a scrap of a CitiBank form with Mr. Scott's address and telephone numbers, a scrap of paper containing the same information, and a receipt from Best Buy dated August 24, 1999 with Mr. Scott's name listed as the cardholder.
Officer William Merritt interviewed Defendant after his...
To continue reading
Request your trial