State v. Davis, No. M2006-00198-CCA-R3-CD (Tenn. Crim. App. 7/19/2007)
| Decision Date | 19 July 2007 |
| Docket Number | No. M2006-00198-CCA-R3-CD.,M2006-00198-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. PHEDREK T. DAVIS. |
| Court | Tennessee Court of Criminal Appeals |
Kathleen G. Morris, Nashville, Tennessee; and Anne M. Davenport, Nashville, Tennessee, for the appellant, Phedrek T. Davis.
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. (Torry) Johnson III, District Attorney General; and Renee Erb, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which David H. Welles and Robert W. Wedemeyer, JJ., joined.
Following a jury trial, Defendant, Phedrek T. Davis, was found guilty of first degree premeditated murder, assault, and attempted second degree murder. Defendant was sentenced to life imprisonment for his first degree premeditated murder conviction. Following a sentencing hearing, the trial court sentenced Defendant as a Range II, multiple offender, to fifteen years for his attempted murder conviction and eleven months, twenty-nine days for his misdemeanor conviction. The trial court ordered Defendant to serve his attempted murder sentence consecutively to his life sentence, and the misdemeanor sentence concurrently with his other sentences, for an effective sentence of life plus fifteen years. On appeal, Defendant argues that (1) the evidence was insufficient to support his conviction of premeditated first degree murder and attempted second degree murder; (2) the trial court erred in its evidentiary rulings; (3) the trial court erred in its jury instructions; (4) the prosecutor's closing argument was improper; (5) the trial court erred in applying enhancement factors in determining the length of Defendant's sentence for attempted second degree murder; and (6) the trial court erred in imposing consecutive sentencing. After a thorough review, we affirm the judgments of the trial court.
Eula Beasley regularly visited the victim, Susan Phelps, at her apartment on McMillan Street. Mr. Beasley testified that he and Ms. Phelps were standing on the sidewalk outside Ms. Phelps' apartment on August 8, 2003, when Defendant approached them. Defendant asked Ms. Phelps why she had been in his apartment and then slapped her across the face. Mr. Beasley stated that Defendant said, "[B]itch, I'm going to get you, don't be in this house when I get back." Ms. Phelps did not respond, and she and Mr. Beasley returned to Ms. Phelps' apartment.
Four or five people had gathered in Ms. Phelps' living room. Mr. Beasley, who was standing by the open front door, saw Defendant walk toward Ms. Phelps' apartment at a fast pace approximately five to ten minutes after the encounter on the sidewalk. Mr. Beasley said that Defendant pulled out a gun and fired through the open living room window. Ms. Phelps was standing in front of the window. Mr. Beasley ran through the living room to a back room, broke the glass from a window with his arm and jumped out. He ran into the alley behind the apartment building and hid for a few minutes. Mr. Beasley observed Defendant drive down the alley in his car.
Mr. Beasley cut his leg when he jumped out of the window and was later transported to the hospital. Mr. Beasley said that Ms. Phelps went over to Defendant's apartment that afternoon to plug in an extension cord because the electricity was off in her apartment. Mr. Beasley identified Defendant at trial as the shooter.
On cross-examination, Mr. Beasley conceded that he went to Ms. Phelps' apartment to smoke crack cocaine, but he stated that he had not had an opportunity to do so before the shooting occurred. Mr. Beasley said that Defendant stood on the sidewalk after slapping Ms. Phelps for about ten seconds before walking around the side of the building.
George Boone testified that he was one of the group of people who had gathered in Ms. Phelps' apartment on August 23, 2003. Mr. Boone was standing by the front door when he observed Defendant approach Ms. Phelps on the sidewalk. Defendant called Ms. Phelps "a bitch," and said, "somebody got my stuff." Defendant slapped Ms. Phelps, and Ms. Phelps walked back toward her apartment. Mr. Boone said that Defendant came up to Ms. Phelps' front door and said, "Somebody got my [s___], you all need to get up out of here." Defendant said he was going to come back and "shoot this [m___ f___] up."
Mr. Boone said that the other people in the apartment were not worried, but Mr. Boone took Defendant's threat seriously. Mr. Boone went outside and stood in front of the victim's apartment. Mr. Boone said that he could see Ms. Phelps standing in front of the living room window. Defendant returned to Ms. Phelps' apartment between fifteen and thirty minutes later. Mr. Boone said that Defendant came up beside him, reached down into his pants, and pulled out a gun. Defendant shot into the living room window and then sprayed the front of the victim's apartment with bullets. Defendant did not say anything to Mr. Boone. After discharging his weapon, Defendant went down the sidewalk, crossed a grassy area, got into his car, and drove away. Mr. Boone looked inside the apartment after Defendant left and saw Ms. Phelps lying on the floor on her back. Mr. Boone identified Defendant at trial as the shooter.
Officer William Kirby with the Metro Nashville Police Department arrived at Ms. Phelps' house at approximately 4:30 p.m. in response to a 911 call made about thirty minutes earlier. Officer Kirby said it was a sunny, bright afternoon. Officer Kirby testified that he stood in front of the apartment's living room window and was able to see through the apartment's interior to a back window. Officer Kirby said that he could see the images of the apartment's furnishings and a dog that was chained near the front door. There was no electricity in the apartment, and the apartment's living room window was open.
Officer Kirby identified and explained the photographs taken at the crime scene depicting, among other things, a bullet hole in the screen of the living room window, three bullet holes in the screen of the front bedroom window, bullet strikes on and around both windows, a bullet strike on the left frame of the front door, and two bullet holes inside the apartment in the drywall separating the front and back bedrooms. Officer Kirby testified that he believed that two of the bullets pierced the drywall and struck the back bedroom window. Six .40 caliber shell casings were strewn across the grassy area in front of the bedroom window and diagonal to the living room window. Lead bullet fragments were found near the coffee table in front of the living room window and by the back bedroom window. Copper bullet jackets were found in the kitchen and the bathroom.
Officer Kendall Jaeger, a firearm tool mark examiner with the Metro Nashville Police Department, testified that based upon his examination, the two bullets recovered from the crime scene were each fired from the same gun, the two copper bullet jackets were fired from the same gun, and the six shell casings found outside the victim's apartment were each fired from the same gun. Officer Jaeger could not conclusively state that only one gun fired all of the bullets, copper jackets, and shell casings because the police officers were unable to find the murder weapon for testing.
Sergeant Danny Collins, with the Metro Nashville Police Department, testified that he was unable to locate Defendant after a warrant was sworn out for his arrest until an individual called with information as to Defendant's whereabouts. Officer Roger Doak, with the Metro Nashville Police Department's intelligence division, set up a surveillance of the residence in which they believed Defendant was living, and Defendant was apprehended at that location on September 30, 2003.
Detective Roy Dunaway, with the Metro Nashville Police Department, was present when Defendant was brought in for booking. Detective Dunaway identified Defendant from a known photograph, and Defendant acknowledged his name. Defendant asked Detective Dunaway what "this was all about." Detective Dunaway told Defendant that he did not know anything "about the dude that you killed." Detective Dunaway said that Defendant responded, "it wasn't a dude, it was a lady."
On cross-examination, Detective Dunaway acknowledged that Defendant denied that he had killed anyone.
Dr. Stacy Turner, a medical examiner for Davidson County, reviewed the report of Ms. Phelps' autopsy. Dr. Turner said that Ms. Phelps was shot once on the left side of her face. The bullet entered the body at the junction of the nose and cheek, traveled to the right side of the neck, and perforated the right carotid artery. The wound did not reveal the presence of any soot or stippling indicating that the shooter was standing at an intermediate range. Dr. Turner said that a blood test revealed the presence of cocaine in Ms. Phelps' system, but Dr. Turner could not determine when the drug was ingested.
Defendant was indicted in a multiple count indictment for the assault and first degree premeditated murder of Ms. Phelps, the attempted first degree murder of Eula Beasley, the attempted first degree murder of Lester Gentry, and criminal impersonation. Prior to trial, the trial court denied Defendant's motion to sever the criminal impersonation charge from the other charges. At the conclusion of the State's case-in-chief, the trial court entered a judgment of acquittal as to the criminal impersonation charge and the charge involving Lester Gentry. Nonetheless, Defendant contends that he was prejudiced by the trial court's denial of his motion to sever because the State addressed the anticipated proof...
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