State v. Mobley, No. E2006-00469-CCA-R3-CD (Tenn. Crim. App. 6/11/2007)
| Decision Date | 11 June 2007 |
| Docket Number | No. E2006-00469-CCA-R3-CD.,E2006-00469-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. BRANDON MOBLEY. |
| Court | Tennessee Court of Criminal Appeals |
Brandt W. Davis (at trial), Knoxville, Tennessee, and Julie A. Rice (on appeal), Knoxville, Tennessee, for the Appellant, Brandon Mobley.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Randall E. Nichols, District Attorney General; Takisha Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and J.C. McLin, JJ., joined.
The Defendant, Brandon Mobley, was convicted by a Knox County jury of two counts of first degree murder, especially aggravated robbery, and setting fire to personal property, and the trial court sentenced him to two consecutive life sentences plus twenty-two years. On appeal, he alleges: (1) there is insufficient evidence upon which to convict him on either count of first-degree murder; (2) there is insufficient evidence upon which to convict him of especially aggravated robbery; (3) the trial court erred in initially prohibiting testimony from a defense expert, which caused a violation of his Fifth Amendment rights; and (4) the trial court erred in sentencing him. After reviewing the record and applicable law, we affirm the Defendant's convictions, but we conclude the Defendant was improperly sentenced. Thus, we modify the Defendant's sentences for his convictions for especially aggravated robbery and setting fire to personal property from twenty to eighteen years and from two years to one year, respectively.
The facts making up the basis for the Defendant's convictions as presented at trial are as follows: Tiffany Nance, the sister of one of the victims, Joshua Nance, testified that her brother and Oshalique Hoffman, the other victim, were dating. Hoffman drove a blue Buick with special chrome rims at the time she was killed on May 26, 2003, Memorial Day. That day, Tiffany Nance was sitting on the porch of her grandmother's house with Nance and Hoffman when Nance received a phone call. Nance stated he had to go out, but he would be back in about thirty minutes. Shortly after Nance and Hoffman left in Hoffman's car, Tiffany Nance received a call, during which she learned that Hoffman was found dead in an area known as Western Heights, and Nance was not found there. She and her mother went to where Hoffman was found, and then left the scene to look for Nance. They searched for hours until they were informed that Nance's body had been found around 5:00 a.m. the next morning.
Jamesena Thompson testified she knew both Hoffman and the Defendant. Hoffman's child played with Thompson's grandchild on occasion, and the Defendant lived across the street from Thompson. Thompson described Hoffman's car as a beige, dark brown, two-toned car with special rims. She stated that Hoffman was very particular about her car, and she did not let others drive it. On Memorial Day, Thompson was at her daughter's house when she heard tires squealing. She turned and saw the Defendant driving Hoffman's car, and she immediately thought he had stolen it because of Hoffman's attitude towards her car. She called Hoffman's mother to report what she saw, and she ran to where the car came from. She found Hoffman lying dead on the ground with a pistol beside her.
On cross-examination, Thompson testified that she did not hear any gunshots. What caught her attention was the Defendant squealing the tires. She watched the Defendant run two stop signs, but other than that he did not appear to be driving out of control. When the Defendant drove by, he nodded to Thompson and then appeared to be leaning over adjusting the music. Thompson believed the apartments around the location where she found Hoffman were occupied at the time of the shootings.
Officer Ed Johnson testified that he was working on Memorial Day, 2003, when he was called to the scene of a shooting. When he arrived, he found Hoffman lying on the ground with a handgun beside her. He took photographs and videotaped the scene. Officer Johnson identified the pistol he found and stated it was recovered with two spent cartridges and four unspent cartridges. A fingerprint and blood were found on the gun, and they were sent to the lab for analysis. Later, at the forensic center, Hoffman's body was checked for residue that would have indicated how close the gun was to her when it was fired. Those swabs were also sent for analysis. Officer Johnson was then called to the scene of a burned vehicle, which he photographed. Officer Johnson then testified he was called to a residence on Henry Haynes. There, he found bloody towels, a Swisher Sweets Blunt box, a bloody ball cap, a bloody tee shirt, car floor mats, and cleaning supplies. Some of the things were found in a cardboard box, some in garbage bags. The evidence was then taken for analysis.
On cross-examination, Officer Johnson testified that the evidence he recovered at the Henry Haynes residence was on a deck when he arrived. The majority of it was sitting in tied up trash-bags. The gunshot residue tests that were performed on Hoffman's body came back somewhat inconclusive. There was no gunshot residue, but Officer Johnson stated that did not necessarily mean Hoffman did not handle, fire, or was not near the gun when it was fired.
Tabith Robinson testified that she is the sister of Jada Byrge, the Defendant's ex-girlfriend. On Memorial Day, 2003, the Defendant came to her house and asked for a bowl of water and some towels, stating he had just been in a car accident. After being given the towels, the Defendant asked Robinson for a phone and a phonebook so that he could call Po-Boys Tires. The Defendant called Po-Boys Tires, a store that buys and sells rims, but it was closed. Next, Robinson began helping the Defendant clean his car until she noticed something on the dashboard. She went inside to tell her mother what she saw, and Robinson's mother came outside, saw what was on the dashboard, and said, "Don't you think you need to get them [sic] brains off the dashboard." The Defendant responded that it was spit. Then, the Defendant's friends drove up in a green Jeep, and they all left. The Defendant left the towels, bowl, and the scrub brush in the front yard.
On cross-examination, Robinson testified that she did not actually hear the Defendant call Po-Boys tires; however, he asked for the phonebook to look-up the number for the tire store. On re-direct examination, Robinson stated that the Defendant had a "wad" of money on him. On re-cross examination, Robinson stated she saw this money when the Defendant was on the phone, on her front porch, counting the money.
Jada Byrge testified she had known the Defendant since he was fourteen, and they had dated for about three months prior to the events on Memorial Day, 2003. Byrge stated that she knew the Defendant to carry a gun, and she recalled that he purchased one from a man living behind her about two weeks prior to the shootings. At one point, the Defendant shot the gun while at Byrge's house on the back deck. Early in the morning on Memorial Day, Byrge and the Defendant broke up, but later that day Byrge received a call from the Defendant asking to come by her house. She told him he could not come by "because of what he had [done]." The Defendant responded he did not do anything and seemed as though nothing bothered him.
On cross-examination, Byrge testified that the Defendant called her between twelve and one in the afternoon asking to come by. The day that the gun was fired on her back deck, she, the Defendant, and a friend named Valerie all fired the gun, and the shell casings were emptied onto the deck when they were finished. On re-direct examination, Byrge clarified that when she talked to the Defendant on the phone, she already knew about the two deaths, and that was what she was referring to when she said, "You know what you did." Byrge also stated she had seen the Defendant wear a pair of white shoes that had been entered into evidence.
Robert Dean Wilson, Jr., testified that, on Memorial Day in 2003, he had known the Defendant for three to four months, and the two had met through Wilson's cousin, Brandon Walden. While Wilson was at home that day, he called Walden to come pick him up, as they frequently rode around together in his green Jeep Cherokee. Walden arrived with another friend, Lance Scarbrough, and Wilson joined them. While riding around, they got a call from the Defendant, who asked them to pick him up at Byrge's house. Once they arrived at Byrge's house, the Defendant told them he had stolen a car, and he wanted them to follow him. Wilson and Walden followed the Defendant until he pulled into a gravel road. Wilson stated he could not see the Defendant, but after a few minutes the Defendant came to the Jeep and got in. Wilson noticed blood spots on the Defendant's clothing and shoes but did not say anything about it. The Defendant then asked Walden to take him to Lovell Road so he could get a motel room. The Defendant then used Walden's phone to call the the mother of his child. Wilson noticed a sum of money on the Defendant, appearing to be about $1500.
Wilson further testified that the Defendant described to the group what had happened, stating that he planned on getting dope from the two victims, but Nance told him that if the Defendant did not "pay up" the money he owed, his mother could pick him up at the morgue. Nance laid a gun on his lap, so the Defendant reacted and shot both victims. The Defendant told the group he would "rather have twelve judging him than six carrying him." After he shot the two, he...
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