State v. Davis
| Decision Date | 03 June 2015 |
| Docket Number | No. W2011-01548-SC-R11-CD,W2011-01548-SC-R11-CD |
| Citation | 466 S.W.3d 49 |
| Parties | State of Tennessee v. Marlo Davis |
| Court | Tennessee Supreme Court |
C. Anne Tipton, Memphis, Tennessee, for the appellant, Marlo Davis.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Leslie E. Price, Senior Counsel; William L. Gibbons, District Attorney General; and David Zak and Stephanie Johnson, Assistant District Attorneys General, for the appellee, the State of Tennessee.
Sharon G. Lee, C.J., filed a concurring opinion.
OPINION
The Defendant, Marlo Davis, was charged with alternative counts of first degree felony murder and first degree premeditated murder. The jury convicted the Defendant of second degree murder as a lesser-included offense of felony murder and of reckless homicide as a lesser-included offense of premeditated murder. The trial court subsequently merged the reckless homicide conviction into the second degree murder conviction and sentenced the Defendant as a Range II offender to forty years' imprisonment. The Court of Criminal Appeals affirmed. We granted the Defendant permission to appeal and now address three issues: (1) whether the trial court committed reversible error by admitting as substantive evidence a prior statement and the preliminary hearing testimony of a testifying witness; (2) whether the evidence was sufficient to support the Defendant's alternative convictions of second degree murder and reckless homicide; and (3) whether the jury's inconsistent verdicts entitle the Defendant to relief. We hold that the trial court's admission of the testifying witness' prior statement and preliminary hearing testimony was not reversible error and that the evidence was sufficient to support the Defendant's convictions. We also reject the Defendant's argument that the jury's inconsistent verdicts entitle him to relief. Accordingly, we affirm the trial court's judgment of second degree murder.
The Defendant and his co-defendant, Latarius Sawyer, were charged jointly with alternative counts of first degree felony murder and first degree premeditated murder after Quincy Jones, the victim, was shot to death in Memphis, Shelby County, Tennessee, in 2006. Both the Defendant and Sawyer were tried together before a jury in April 2011.
To assist in understanding the circumstances surrounding the victim's homicide, we first will describe briefly the physical locations pertinent to this case. The victim's house, 1600 Ely, was located on the corner of Essex and Ely. Essex was intersected by Ely to the west and by Miller to the east. The victim's house faced Ely, and Essex ran alongside the victim's house. Directly behind the victim's house, facing Miller, was witness Ella Renee Conyer's house at 1599 Miller. The back yards of the victim's house and Conyer's house abutted one another. Diagonally across Essex from the victim's house was witness Laraine Bobo's residence, 1607 Ely. Directly across Essex from the victim's house was a church.
The proof adduced at the jury trial established that the victim owned rental properties in Shelby County, Tennessee, including the one located at 1600 Ely on the corner of Ely and Essex. The victim was in the process of refurbishing this property in November 2006, and, on November 9, 2006, drove his Range Rover to the property at about 3:00 p.m.
On that day, Laraine Bobo was in the driveway of her home waiting for her grandchildren to come home from school. She testified that it was “a sunny, beautiful day.” She saw Clarence Bailey, whose nickname was “Dusty,” walking along Essex. Dusty turned and walked up to the victim's property and knocked on the front door. No one answered, and Dusty turned around and walked back the way he had come. Bobo also saw Sawyer standing nearby with “a tall young man” wearing a hooded jacket with the hood up. Because of the hood, Bobo could not see the man's face.
As Bobo saw her grandchildren coming down the street, she heard an argument break out. She did not know where the speakers were, but she was afraid that something was going to happen, so she yelled at her grandchildren to hurry. She then heard “a big boom, a gunshot.” Bobo continued trying to hurry the children into her house. She saw a “strange-looking man” coming toward her and then realized that it was the victim. The victim walked up to her and asked her to call 911. She asked the victim if he had been shot, and the victim nodded. Bobo called 911, and the recording of Bobo's 911 call was played for the jury.
The victim fell face down on Bobo's driveway. Bobo and another person turned the victim over, and Bobo saw that the victim had been shot in the right side of his abdomen. In addition to calling 911, Bobo flagged down a passing police car. Bobo later identified Sawyer, Sawyer's brother, and Bailey from photographic arrays. Bobo acknowledged that she had not recognized any of the raised voices that she had heard.
Officer Cedric Curry of the Memphis Police Department (“MPD”) was the first officer at the crime scene, arriving at approximately 3:30 or 3:35 p.m. He found the unresponsive victim lying in the driveway of the residence at 1607 Ely. As part of his effort to secure the scene, he placed a witness by the name of Richardson in the back of his patrol car. Officer Curry did not speak with Bobo at the scene.
Camry Richardson testified that she was fifteen years old on November 9, 2006. At the time, she was living in the Ely and Essex neighborhood. As she was walking home from school that day, Richardson saw the victim having a conversation with two men. She did not hear what was said and did not see the faces of the two men talking to the victim. Richardson stated that the two men were black and that both were wearing dark blue jeans. One of the men was wearing a hoodie.
Several seconds after seeing the three men conversing, Richardson heard a gunshot. She then saw the victim running toward Ely, “hunched over holding his stomach.” The other two men “were running through the cut on Miller Street.”
On cross-examination, Richardson explained that the three men had been standing on Essex, with the victim on the sidewalk and the other two men in the street. She stated that all three men were on the “church side” of Essex. The conversation did not appear to be an argument. Richardson did not see any of the men with a gun. The man wearing the hoodie had the hood down around his neck. Richardson stated that she knew the Defendant's and Sawyer's faces. She stated that, after the gunshot, the two men that had been talking to the victim ran off separately. The man wearing the hoodie ran toward Miller. Richardson did not remember the direction in which the other man ran, but she stated that it was in a different direction. Richardson did not see any weapons as the men ran away.
Ella Renee Conyers testified that she was driving home on the afternoon of November 9, 2006, and as she was driving east on Essex approaching the intersection with Ely, she noticed someone on the front porch of the victim's house. This person was looking in the front door. As she drove past the back yards behind the victim's house and her house, she saw someone crouched behind her other car, which was parked in her back yard. This man stood up when he noticed her looking at him, but she did not recognize him. She turned the corner and parked on Miller in front of her house. As she parked, she noticed another man she did not recognize watching her from across the street and near the church. She got out of her car and went into her house. A “[v]ery short time” after she went inside, she heard a gunshot and a “loud shout.” She went into her backyard and “noticed the commotion on the corner.” She learned that the victim had been shot.
By stipulation, Clarence Bailey testified by video deposition. Bailey, born in 1970, testified that he was a cocaine addict and that he had been “eating” cocaine on November 9, 2006. He also explained that he had a metal plate across his forehead that affected his ability to remember. Bailey acknowledged that, as of the time of his deposition, he was in custody on charges of domestic assault and aggravated burglary. He also was facing a first degree murder charge in Texas. Previously, he had pleaded guilty to attempted aggravated burglary and aggravated assault.
Bailey testified that, on November 9, 2006, he was walking around the Ely/Essex neighborhood looking for odd jobs to make enough money to buy more cocaine. As he was walking west on Essex at approximately 3:00 p.m., he passed Conyer's house and saw an older model car parked in her backyard. He also saw a Range Rover parked behind the victim's house, next to Conyer's car. Stooped over near Conyer's car, Bailey saw Sawyer. Stooped over near the Range Rover, Bailey saw the Defendant. Bailey did not see the men doing anything suspicious. Bailey testified that he had known both the Defendant and Sawyer since they were small children.
Because Bailey knew that the victim's house was vacant, the Range Rover's presence caused him to think that there might be some work being done on the house. He decided to inquire if there was a job available, so he walked to the corner of Essex and Ely, turned right onto Ely, and walked up the steps to the front door of the victim's house. The storm door was closed, but the main door was open. He knocked on the door, but no one answered. Since Bailey saw no one inside, he left and began walking back down Essex, headed east. Bailey added that, while he was on the porch, he saw a white car being driven by a woman pass by slowly while headed east on Essex. The driver was watching something to Bailey's left and looked “dead in [his] face.”
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