State v. Cannon

• Decision Date: 18 August 1983
• Citation: 661 S.W.2d 893
• Parties: STATE of Tennessee, Appellee, v. Darold David CANNON, a/k/a Darryl Cannon, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 893

661 S.W.2d 893

STATE of Tennessee, Appellee, v. Darold David CANNON, a/k/a Darryl Cannon, Appellant.

Court of Criminal Appeals of Tennessee,

at Jackson.

Aug. 18, 1983.

Permission to Appeal Denied by

Supreme Court Nov. 28, 1983.

Brett B. Stein, Robert W. Jones, Asst. Public Defender, Memphis, for appellant.

William M. Leech, Jr., Atty. Gen., Gordon W. Smith, Asst. Atty. Gen., Nashville, Henry P. Williams, James C. Beasley, Jr., Asst. Dist. Attys. Gen., Memphis, for appellee.

OPINION

TATUM, Judge.

The defendant, Darold David Cannon, was convicted of two offenses for armed robbery and two offenses for voluntary manslaughter. The victims of the armed robbery offenses were Virgie Lee Brown and Lenord Jones. The victims of the voluntary manslaughter offenses were Eugene Torey, also known as Eugene Mobley, and Joe Winters. Punishment was fixed at 19 years confinement in the State penitentiary for each of the armed robbery offenses and not less than 4 years nor more than 10 years confinement for each of the voluntary manslaughter convictions. The punishment for both manslaughter convictions was enhanced for an additional 5 years confinement for committing the offenses with a firearm. The sentence for one of the manslaughter convictions was ordered to run consecutive to one of the armed robbery convictions. On this appeal, the defendant presents 8 issues for review. After considering the issues and the record, we find that the judgments below must be affirmed.

The robberies and homicides occurred at 1152 West Raines Street in Memphis. The record discloses that at the time of the crimes and for a period prior thereto, people habitually congregated at this address for gambling and drinking purposes. To the west of 1152 West Raines was house number 1166. There is a driveway at 1166 West Raines and east of the driveway, there is a garden. There is a ditch and underbrush in front of 1166 West Raines. To the east of 1152 is 1122 West Raines. There is underbrush between these two residences. On August 8, 1980, Lenord Jones and Joe Winters went to 1152 West Raines where there was a pool table under a tree in the front yard. A dice game was being conducted on the pool table by Junior Holloway. Eugene Torey also came to the address in his automobile. Virgie Lee Brown was also there. Jones, Winters, Torey and Brown were the only black people there except for a black man named "Preacher" who was a "regular" at this address and had told Winters and Jones about the gambling activity there.

Jones, Winters, and Torey got into the dice game with the defendant and several other white men. After about 40 or 50 minutes, the black trio lost all of their money. Winters and Jones walked to Winters' residence where Winters got more money. Winters and Jones returned to the dice game and Winters had a change of luck; he began to win. After winning a substantial amount of money, Winters got out of the game but loaned some money to Jones. Jones, the defendant and two or three other white men began to gamble while Torey, Winters and Brown remained in the vicinity. The defendant went into the house and came back with a .12-gauge shotgun. He shot the gun into the air and ordered the four blacks to put their money on the table. Jones, Winters and Brown complied but Torey had no money. Brown had $40 from his paycheck in his pocket and placed this on the table. After doing so, he raised his hand and asked the defendant if he could have $10 of his money to buy gas. The defendant permitted Brown to retrieve $10. Only the black persons were robbed. Winters protested the taking of his money, saying that he had won fairly, but the defendant ordered Winters and the other victims to leave their money on the table.

After the robbery, Winters and Jones returned to the home of Winters. Jones testified that as they were leaving, they heard shotgun blasts fired from the direction of the gambling scene. Virgie Lee Brown accompanied Torey to Torey's automobile where Torey got a pistol and walked toward the underbrush east of the gambling premises. Brown left the scene and did not return.

It was established that Torey had a .38 caliber pistol. There was defense proof that Torey shot at the defendant several times from the area east of 1152 Raines. There was substantial evidence that the defendant shot the shotgun, loaded with double aught buckshot at Torey in this direction. After the homicides, one spent cartridge was found in the area east of the gambling premises that had been fired from Torey's .38 caliber revolver. The revolver held 6 bullets in the cylinder. When bullets are ejected from the revolver, all must be ejected simultaneously by a pin in front of the cylinder.

Torey joined Jones and Winters at Winters' house. The trio decided to return to the gambling premises and attempt to enlist the aid of Junior Holloway, the operator of the game, in obtaining the return of their money. As they approached, the defendant stepped from behind a white van parked in the yard near the pool table, and commenced firing the shotgun at them. All three men turned and ran without firing a shot. Jones escaped but Torey and Winters were fatally wounded. Torey's body was found in the underbrush near the northern border of West Raines Street in the yard of 1166 West Raines (the house west of the gambling house). The .38 caliber pistol was lying near his body fully loaded with six live rounds. Winters' body was in the driveway with a sawed-off .22 rifle. It was unloaded and no .22 rifle cartridges were found in the area. Winters' death was caused by a shotgun pellet wound to the head behind the left ear. Torey died from six shotgun pellet wounds in his back. Only 38 cents was found on both bodies. The defendant immediately left and went to Texarkana, Texas.

There was considerable discrepancy in the testimony of defense witnesses. The defendant, testifying in his own behalf, stated that Winters, Torey and Jones asked and received permission to join the dice game. Winters and Torey participated but Jones did not. After the defendant won all of their money, Winters and Jones left and returned with more money. After their return, only Winters participated in the game and he began to win. After suspecting that Winters was using loaded dice, the defendant got out of the game leaving no one but the three black men. They did not shoot dice with each other but attempted to get other people to join the game.

The defendant testified that he repeatedly asked the black men to stop the game. When they did not, he went into the house for his shotgun, came back and fired it into the air and told the three men to leave their money and the dice on the table. Torey was the first to leave and then Brown left. Torey drove 50 yards east of the gambling premises, got out of his car and fired in the defendant's direction. The defendant returned the fire and Torey fired a second time. The defendant then shot two or three times at Torey but wasn't trying to hit him. Torey began running back and forth between the house next door and some brush.

Shortly thereafter, according to the defendant, Virgil Birmingham drove into the yard and defendant related the story to Birmingham. Suddenly Birmingham said, "Watch out, they're coming up behind you." The defendant testified that he turned to the west and saw two men; one of them shot at him. The defendant shot twice in that direction then ran behind the van. The defendant thought that he saw a third man running down the road. There was no more shooting. Virgil Birmingham took the defendant and his two children to the defendant's girlfriend's home and she took them to Texarkana, Texas. Later, he was informed that the police were looking for him and he turned himself in.

The defendant testified that he did not get the money from the pool table. Another defense witness testified that Winters remained at the gambling scene during the first shootout between Torey and the defendant and that Winters took the money from the pool table.

The defendant testified that he had quit gambling when he fired the shotgun into the air and ordered the black men to "leave the money and the dice on the table." He testified that he had not lost money when he stopped gambling, but that he quit as a winner.

We address the issue attacking the sufficiency of the evidence. The defendant's brief does not articulate why he deems that the evidence is insufficient to support the jury's verdicts. The defendant and all other witnesses admitted at trial that the defendant procured a shotgun, fired it into the air, and demanded that Winters, Jones, and Brown put their money on the table. These parties complied with the defendant's demand. According to the State's proof, the defendant had lost his money to Winters "fair and square." According to the defense proof, Jones, Winters and Torey were using loaded dice. There was credible evidence that Jones, Winters, and Torey returned to the gambling premises for the purpose of peaceably recovering their money and that the defendant was waiting for them behind a parked van and fired at them several times with a .12-gauge shotgun loaded with buckshot. There was credible evidence that the defendant was not assaulted when he shot the two victims and that he shot both of them while they were fleeing from him. It is not controverted that both victims were killed with a firearm. There is evidence upon which a rational trier of fact could be convinced beyond a reasonable doubt of the defendant's guilt of all offenses for which he was convicted. We overrule the issue attacking the sufficiency of the evidence. Rule 13(e), T.R.A.P.

The defendant next presents issue that the court erred in allowing the prosecuting attorney to comment during closing argument on the defendant's failure to call his brother and others who were present during the affray. The defendant says that proper predicate for comment on the missing witnesses was not...