State v. McCobb, No. W2006-01517-CCA-R3-CD (Tenn. Crim. App. 9/26/2007)
| Decision Date | 26 September 2007 |
| Docket Number | No. W2006-01517-CCA-R3-CD.,W2006-01517-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. SHAWN McCOBB and MARCUS WALKER. |
| Court | Tennessee Court of Criminal Appeals |
Karen Massey, Assistant Public Defender, Memphis, Tennessee, for the appellant, Shawn McCobb; and Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Marcus Walker.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendants, Shawn McCobb and Marcus Walker, were convicted of aggravated robbery, a Class B felony, and sentenced as Range I, standard offenders to ten years in the Department of Correction. In their consolidated appeal, they argue that the evidence was insufficient to support their convictions and the trial court erred in imposing ten-year sentences. Defendant Walker additionally asserts that it was error for the trial court to impose a fine over $50 and allow his impeachment with a prior conviction. Following our review, we affirm the convictions and sentences of the trial court but modify the fines imposed to $50 each.
At the defendants' trial, the victim, Marcus Wilson, testified that on August 29, 2004, he worked at a Papa John's Pizza in Memphis delivering pizzas and made his last delivery at approximately 1:45 a.m. to 6350 Windridge Cove. A young man opened the door and asked him to wait there. The same man later returned, told the victim that he had mistakenly brought a ten rather than a twenty-dollar bill, and again asked that the victim wait at the front door. While he was waiting, the victim was struck in the back of the head with a metal baseball bat. He described the blow by saying, The victim said that he then ran for his truck but collided with McCobb and fell in the front yard. He was hit in the arm and began crawling toward his truck. He said that two more men came from the carport, and one of them and McCobb told him "to get down on the ground and stay down on the ground." McCobb stood over him "with the bat up in the air like he was getting ready to swing it again" and demanded the victim give him what he had. The victim handed over some checks and cash, but McCobb continued to hold up the bat, asking for more money. The victim gave him two dollars that he had in his other pocket.
Seeing that his assailants had gone back into the house, the victim ran to his truck and drove to his place of employment, where his manager called an ambulance which took him to the hospital. Several days later, he viewed a photographic lineup and identified Walker as the man who "stalled" him at the door just before the robbery and McCobb as the man who hit him in the head with the bat. The victim also made a courtroom identification of McCobb as the man who struck him with the bat and Walker as the one who asked him to wait at the door.
Officer Charmell Smith of the Memphis Police Department testified that on August 29, 2004, she went to the address where the robbery occurred and recovered the victim's glasses from the front yard and his Papa John's cap from the front porch.
Detective Walter Davidson of the Memphis Police Department Robbery Squad testified that Walker was identified as a suspect and was located at the apartment complex where he resided. After being advised of and waiving his Miranda rights, Walker gave a signed statement on September 3, 2004, admitting that he had participated in the robbery with "Shawn McCobb and his cousin B.J."1 and saying that he was armed with "a brown stick like a nightstick" and that McCobb also had a stick. He said that two pizzas and some money were taken in the robbery, with McCobb getting all of the money.
In his statement, Walker described how he, McCobb, and "B.J." planned and executed the robbery:
Me and [McCobb] were at home and he wanted to go over to B.J.'s house because we did not have any food and he wanted to go over there and get something to eat. We walked over to B.J.'s house. When we got there, B.J. fixed [McCobb] a sandwich and fixed me a corn dog. I told them I was still hungry and he did not want to fix anything else. [McCobb] suggested that he buy some pizzas. Then B.J. told them that he only had $10 and [McCobb] was trying to make B.J. go and get one of his uncle's pistols. He has a couple of pistols there in his house.
So B.J. called and ordered the pizza. He asked me what kind I wanted and I told him hamburger. And so we called and ordered the pizzas. We talked about it and said let's catch him before he gets to the door. [McCobb] was going to do it by myself [sic] at first while B.J. stalled him at the door. Then they brought me into it saying that I had to hit him and knock him out. [McCobb] and myself are standing out under the carport and it is real dark.
Before he got there I had to go in and use the bathroom and when I came back out he was already there. And I tried to tell them to forget it. [McCobb] kept saying that we weren't going to have nothing to eat. I walked to the bushes and [McCobb] was behind me and I tried to turn around because I did not want to do it. And [McCobb] was like we got to do this. And [McCobb] was holding on to my back and pushed me forward. I jumped out of the bushes behind the delivery man and I stood there and he did not know that I was there behind him. I was going to wait until he turned around and tell him just to give me the money. I raised the stick up and was going to wait until he turned around. And he turned around and I acted like I was going to hit him and said give me the money.
When I swung the stick he was starting to run and he ran into the stick and he fell and I just stood there. He got up and started to run and [McCobb] chased him into the next-door neighbor's yard and the pizza man fell and [McCobb] was standing over him with the stick asking him for the money. [McCobb] told him that if he went into his pockets and found some more money that he was going to beat him. The pizza man pulled out some more money and gave it to him. [McCobb] threw the pizza box in the backyard and said he was going to throw the pizza away.
Sergeant Michael Brown, also of the Memphis Police Department, testified that Walker fled as officers were trying to arrest him but was apprehended about ten minutes later. Brown took a statement from McCobb on September 3, 2004, wherein he admitted his involvement in the robbery and confirmed that Walker and "Taurus Pointer, Jr." participated as well. McCobb said that he was armed with a pool stick and that Walker had a nightstick. McCobb explained how the robbery had occurred:
We went over to my cousin's house. We came over there to rap. When we got through rapping, we started talking about how we can get some money if we hit the pizza man. We weren't really just serious about it then. We ended up calling. When he came, me and [Walker] stood outside and waited. We waited on him. We thought he was going to park in the driveway but he parked in the street. He came up the driveway and he stood at the door. [Walker] waited until he gave him the drinks and hit him with the nightstick in the back of his head. When he hit him, the pizza man tried to run so I caught him halfway through the yard. He was crawling through the yard. I stood over him with the pool stick and he gave me the money, like two or three checks. It was balled up in the money. Then the guy got up and he got in his car and left. We went back in the house. I took the checks out of the money, then we left and went home. That's it.
Defendant Walker testified that he answered the door when the victim arrived with the pizzas and gave him a coupon for their order. When the victim told Walker that the coupon was expired, Walker asked him to accept it anyway, but the victim refused to do so and, according to Walker, "got real loud and put his finger in [Walker's] face." McCobb then came to the door and told the victim, "You ain't coming over here with that disrespect." McCobb struck the victim, and the victim then hit McCobb. The victim then got in his truck and left but dropped the pizzas and sodas in the yard.
Walker acknowledged that he gave a different, inculpatory statement to the police but said he only did so because they "told me if I didn't own up to robbing the man that I would never see my son again." He further testified that the police promised to release him if he confessed.
Defendant McCobb testified that Walker was going to purchase the pizzas with a coupon, but when the victim arrived, he yelled at Walker. McCobb said that he then hit the victim because he was being disrespectful but denied having any weapons or taking anything from him. McCobb also acknowledged that he previously had confessed to the robbery but said he only did so because the police "told [him] to lie" and that "if [he] didn't say what they wanted [him] to say that [he] wasn't going to see the streets again."
On appeal, the defendants argue that the evidence presented at trial was insufficient to support their convictions.
In consideration of this issue, we apply the rule that where sufficiency of the convicting evidence is challenged, the relevant question of the reviewing court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the...
To continue reading
Request your trial