State v. Fusco

• Decision Date: 06 December 2012
• Docket Number: No. M2012–01068–CCA–RM–CD.,M2012–01068–CCA–RM–CD.
• Citation: 404 S.W.3d 504
• Parties: STATE of Tennessee v. Robert FUSCO.
• Court: Tennessee Court of Criminal Appeals

404 S.W.3d 504

STATE of Tennessee

v.Robert FUSCO.

No. M2012–01068–CCA–RM–CD.

Court of Criminal Appeals of Tennessee, at Nashville.

Dec. 6, 2012.

Application for Permission to Appeal

Denied by Supreme Court

April 11, 2013.

Bryan P. Stephenson, Nashville, Tennessee, for the appellant, Robert Fusco.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

D. KELLY THOMAS, JR., J., delivered the opinion of the Court, in which JAMES CURWOOD WITT, JR., and JOHN EVERETT WILLIAMS, JJ., joined.

D. KELLY THOMAS, JR., J.

Following a jury trial, the Defendant, Robert Fusco, was convicted of two counts of especially aggravated kidnapping, which were merged, and one count of each of the following offenses: conspiracy to commit aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. SeeTenn.Code Ann. §§ 39–12–101, –12–103, –13–202, –13–304, –13–305, –13–402, –13–403, & –14–403. The trial court determined that the Defendant was a Range II, multiple offender for sentencing purposes and imposed an effective 65–year sentence. We first decided this appeal several months ago in February 2012. See State v. Robert Fusco, No. M2010–01724–CCA–R3–CD, 2012 WL 368224 (Tenn.Crim.App. Feb. 3, 2012). Our decision was vacated by the Tennessee Supreme Court, and the case was remanded to this court for reconsideration in light of State v. White, 362 S.W.3d 559 (Tenn.2012). We requested and received supplemental briefing from the parties addressing any White issues. When this case was previously before this court, the Defendant raised the following issues: (1) whether the trial court erred in failing to charge the lesser-included offense of attempted especially aggravated kidnapping; (2) whether the assistant district attorney general committed prosecutorial misconduct during closing argument; (3) whether the evidence is insufficient to support his convictions for especially aggravated kidnapping, conspiracy to commit aggravated robbery, and conspiracy to commit aggravated kidnapping; (4) whether his dual convictions for especially aggravated kidnapping and attempted aggravated robbery violate due process concerns because the restraint of the victim was not beyond that necessary to complete the robbery; (5) whether the trial court erred by not merging his two conspiracy convictions because the offenses were the object of the same agreement; (6) whether the trial court erred by using certain out-of-state convictions to enhance his sentencing range; and (7) whether his sentence was excessive.¹ We reissue our previous opinion as follows with a new section dealing with the White issues. Upon further consideration of the facts and circumstances of this case with those in White, we again affirm the Defendant's convictions for especially aggravated kidnapping and attempted aggravated robbery. The case is remanded to the Montgomery County Circuit Court for the entry of corrected judgments to reflect merger of the Defendant's conspiracy convictions. In all other respects, we conclude that there is no reversible error in the judgments of the trial court and affirm.

FACTUAL BACKGROUND

This appeal arises from the November 1, 2007 home invasion of John and Elke Gilreath, who lived in Clarksville and owned a local jewelry store called the Golden Eagle. On June 1, 2009, a Montgomery County grand jury returned an indictment against the Defendant and his co-defendant, Kyle Swim, wherein the Defendant was charged with three counts of especially aggravated kidnapping (alternative theories for the kidnapping of Elke) and one count of each of the following offenses: conspiracy to commit aggravated robbery, conspiracy to commit especially aggravated kidnapping, attempted especially aggravated kidnapping (John), aggravated kidnapping (Elke), attempted aggravated kidnapping (John), attempted aggravated robbery (John and Elke d/b/a Golden Eagle Jewelry), aggravated burglary, and attempted first degree murder (Elke). The Defendant's trial was conducted on September 21 through 24, 2009.

The proof at trial, in the light most favorable to the State, revealed that the Defendant and his 18–year–old co-defendant, Swim, residents of Florida, formulated a plan to rob the Golden Eagle jewelry store in Clarksville, a location chosen by the Defendant. In furtherance of their plan, the two men made five or six trips to Clarksville to gather information. They learned that John and Elke Gilreath were the owners of the jewelry store and that the jewelry store building formerly housed a bank, so they believed a vault filled with large amounts of money was inside the store. They also followed the Gilreaths home from the store and determined where they lived. Ultimately, the two men contrived to break into the Gilreaths' home, abduct Mr. Gilreath while holding Mrs. Gilreath hostage, and force Mr. Gilreath to take them to the jewelry store after hours to retrieve the valuables inside. During one of their reconnaissance trips, they stayed at a Super Eight motel, and authorities later recovered a receipt signed by Swim, which was entered into evidence.

They executed their plan on November 1, 2007. Some time between 8:30 and 9:00 a.m. that morning, Swim dropped the Defendant off about a block away from the Gilreaths' home on Trahern Lane. The Defendant was armed with two handguns, a 25mm and a 9mm. After gaining entry into the home, the Defendant hid in the laundry room of the house for several hours; Mrs. Gilreath was home when the Defendant entered that morning, but the plan called for them to wait until Mr. Gilreath returned home from work. Throughout the day, the Defendant and Swim exchanged text messages to stay apprised of the Gilreaths' whereabouts. At some point, Mrs. Gilreath left the house and went to the store. When she and Mr. Gilreath returned home in their respective vehicles later that day at approximately 5:10 p.m., Mr. Gilreath went to check the mail, and Mrs. Gilreath went to put something in the laundry room. As Mrs. Gilreath entered, the Defendant jumped out, brandishing a weapon, and said, “I'm here to kill you.” The Defendant placed Mrs. Gilreath in a chokehold and held a gun to her head. Mr. Gilreath came running to the kitchen when he heard his wife scream.

As Mr. Gilreath approached, the Defendant pointed his gun at Mr. Gilreath and ordered, “Don't move motherf–––er, or I'll kill you, and I'll kill this b–––h here.” Mr. Gilreath responded, “No, you are not going to kill anybody, and I am going to get my gun and kill you.” Mr. Gilreath then ran to his car to retrieve his handgun.

The Defendant “marched” Mrs. Gilreath into the kitchen, spun her around, and slammed her into a door. The Defendant “held her left arm up, stood on one of her feet, and pressed the gun to her forehead.” Mrs. Gilreath pleaded with the Defendant and told him that she would give him anything he wanted, and the Defendant replied, “Shut up you f–––––g b–––h, I am here to kill you. I am going to shoot you.” The Defendant then grabbed at Mrs. Gilreath's Rolex watch. As Mrs. Gilreath was bringing her arm down, the Defendant put the gun against it and fired; the bullet went through her arm and into her chest. The Defendant then grabbed Mrs. Gilreath by the hair and pushed her face into the floor, before fleeing.

On his way back inside the home, Mr. Gilreath was met by his wife, who had blood squirting from a wound in her chest. He laid her on her stomach in the front yard and gathered some towels to staunch the bleeding.

Swim relayed that at approximately 5:30 p.m., he was at Linda's Pic–A–Rib on Tenth Street, when the Defendant phoned him and told him that he had shot Mrs. Gilreath and needed to be picked up so they could flee. Before leaving the Pic–A–Rib, Swim asked Melba Cox, an employee of the restaurant, how to get to College Street. Also around 5:30 p.m., one of the Gilreaths' neighbors, Mr. Travis Tarpy, saw a man, who he later identified as the Defendant, running through his backyard and phoned the police. Mr. Tarpy testified that the Defendant was wearing a hooded sweatshirt. Soon after this, Harold McCarver encountered the Defendant, who was on his cell phone, at B & D Garage; the Defendant asked McCarver to direct him to College Street.

Detective Tyler Barrett received a call about the shooting around 5:30 p.m. and began looking for a light-skinned ² man wearing jeans and a hooded sweatshirt. As Det. Barrett patrolled the area, he was flagged down by several men, who told him that someone was hiding in a nearby building on College Street. Detective Barrett found the Defendant inside the building with a cell phone in one hand and a gun in the other; he ordered the Defendant to get on the ground, but when the Defendant remained standing, Det. Barrett warned him that he would shoot if he did not do as he was told. The Defendant then dove under a nearby truck, and it was only after Officer Bill Van Beber arrived on the scene that the two officers were able to pull the Defendant from underneath the vehicle. The Defendant initially denied having a weapon, but Officer Van Beber removed a 25mm handgun from the Defendant's left rear pocket. Another officer removed a pair of gloves from the Defendant's person, which gloves later tested positive for the presence of gunshot residue.

Swim finally arrived at the building on College Street, and after observing that the Defendant had been taken into custody, he drove back to Florida. Swim was apprehended several months later and incarcerated at the Montgomery County Jail. While there, he encountered the Defendant and asked him why he had shot Mrs. Gilreath. The Defendant answered that he shot her because he was “mad, pissed off.”

Detective Tim Anderson interviewed the Defendant shortly...