State v. Palmer, No. W2004-01748-CCA-R3-CD (TN 12/9/2005)

• Court: Tennessee Supreme Court
• Writing for the Court: Thomas T. Woodall
• Decision Date: 09 December 2005
• Docket Number: No. W2004-01748-CCA-R3-CD.,W2004-01748-CCA-R3-CD.
• Citation: State v. Palmer, No. W2004-01748-CCA-R3-CD (TN 12/9/2005), No. W2004-01748-CCA-R3-CD. (Tenn. Dec 09, 2005)
• Parties: STATE OF TENNESSEE v. CURTIS PALMER.

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Unpublished Opinion

STATE OF TENNESSEE v. CURTIS PALMER.

No. W2004-01748-CCA-R3-CD.

Court of Criminal Appeals of Tennessee, at Jackson.

Assigned on Briefs June 7, 2005.

Filed December 9, 2005.

Direct Appeal from the Criminal Court for Shelby County; No. 03-04188; James C. Beasley, Jr., Judge.

Judgment of the Criminal Court Affirmed.

Mark Mesler, Memphis, Tennessee, for the appellant, Curtis Palmer.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; William L. Gibbons, District Attorney General; Phillip Gerald Harris, Assistant District Attorney General; and Patience Branham, Assistant District Attorney General, for the appellee, the State of Tennessee.

Thomas T. Woodall, J., delivered the opinion of the court, in which David G. Hayes, J., joined.

JOSEPH M. TIPTON, J., filed a concurring opinion.

OPINION

THOMAS T. WOODALL, JUDGE.

Following a jury trial, Defendant, Curtis Palmer, was convicted of first degree felony murder in the perpetration of aggravated burglary in count one of the indictment and first degree felony murder in the perpetration of theft of property in the second count, and was sentenced to life imprisonment without the possibility of parole. The trial court merged Defendant's conviction for felony murder in count two into his conviction for felony murder in count one. In his appeal, Defendant argues (1) that the evidence is insufficient to support his conviction on the charge of felony murder; (2) that he was denied his right to a speedy trial; (3) that the trial court erred in denying his motions to suppress; (4) that the trial court erred in its evidentiary rulings; (5) that the trial court erred in failing to instruct the jury on voluntary manslaughter as a lesser included offense of the charged offenses; and (6) that the prosecution engaged in prosecutorial misconduct during closing argument. After a thorough review of the record, we affirm the judgment of the trial court.

I. Trial

Patrice Johnson and the victim, Patricia Miller, were friends and worked together at the Regional Medical Center in Memphis. Ms. Johnson said that she received a call from the medical center on January 1, 2002, because the victim had not reported to work that morning. Concerned, Ms. Johnson drove to the victim's home and found a door near the carport cracked open. Ms. Johnson called the police. Officers found the victim dead inside her home.

Carmalita Harris, the victim's daughter, said she stayed with a friend on New Year's Eve and spoke with her mother by telephone around 12:45 a.m. on January 1, 2002. Ms. Harris said that the victim owned three car speakers and an amplifier which she was attempting to sell. The speakers were white, black, and red, and the material on the face of one of the speakers was torn. Ms. Harris identified the speakers found in Defendant's car as her mother's.

Ms. Harris said she inspected her bedroom after the victim was discovered. She found various items on her bed which were not there the day before, and a bullet hole in the ceiling. Her bedroom window was raised, and the air conditioner had been removed.

Officer Willie Mathena with the Memphis Police Department responded to the call from Ms. Johnson. Officer Mathena found the victim lying on the floor in the den. In Ms. Harris' bedroom, Officer Eric Freeman found a "bullet strike" on a bedside table, and noticed that the air conditioner had been taken out of the bedroom window. There was a bullet hole in the ceiling. A bullet fragment was found near the victim, and a second bullet fragment and three shell casings were found in the den.

Sergeant Gerald Crowson and Sergeant Todd Pierce, with the Southhaven, Mississippi Police Department, observed Defendant drive his Chevy Caprice into a Blockbuster parking lot around 6:00 p.m. on January 1, 2002. Defendant went inside the Blockbuster store. Sergeant Pierce asked Defendant to step outside the store so he could ask him a few questions. Sergeant Pierce said that Defendant was cooperative. Sergeant Crowson looked in a window of Defendant's car and noticed a two-tone, small caliber semiautomatic pistol lying on the floorboard of the driver's side of the car.

Officer Danielle McKenzie, with the Horn Lake, Mississippi Police Department, was dispatched to the scene. She read Defendant his Miranda rights. Officer McKenzie said that Defendant told her he did not "understand what an attorney was." Officer McKenzie explained the role of an attorney and said that Defendant appeared to understand. Officer McKenzie said that the officers discovered three car speakers and an amplifier in the trunk of Defendant's vehicle.

Sergeant Nathan Berryman with the Memphis Police Department said that one of the victim's friends told him she had spoken with the victim on the telephone around 10:30 p.m. on December 31, 2001. The victim told her friend that she had another call coming in and put the friend on hold. When the victim returned to the line, she told the friend that she needed to speak to the man on the other line about selling him her car speakers and amplifier. Defendant was identified as the caller from the victim's telephone caller identification box.

Sergeant Berryman said that Defendant's aunt called the police department on January 2, 2002, and informed them that Defendant had been incarcerated in Mississippi. Sergeant Berryman and Sergeant Gossett traveled to Hernando, Mississippi, and began interviewing Defendant at approximately 5:00 p.m. Defendant was read his Miranda rights and signed a waiver of those rights. Sergeant Berryman said that Defendant was calm and appeared to understand his rights. After offering different versions of how he had gained possession of the speakers found in the trunk of his car, Defendant told Sergeant Berryman, "I messed up, didn't I." Defendant asked to speak to Sergeant Berryman alone and implicated himself in the commission of the homicide of the victim. Sergeant Berryman read Defendant his Miranda rights a second time around 6:30 p.m., and Defendant gave a written statement which was read to the jury during the trial.

In his statement, Defendant said that he met the victim a few days before Christmas, and she told Defendant she had three car speakers and an amplifier for sale. Defendant said that while he was trying to raise the cash to buy the equipment, he and the victim began seeing each other socially. Defendant said he called the victim several times on December 31, 2001, but did not get an answer. He went to the victim's home "about eight something that night and parked in the driveway." The victim did not answer the door when he knocked and rang the doorbell. Defendant said he went to the back of the house and took an air conditioner out of one of the windows. He heard the victim call out, "Who's there." Defendant said he ran away but decided to go back. He jumped through the open window in the back of the house. He said the victim walked away from him saying, "I'm fixin[g] to blow yo[ur] ass off." Defendant said he shot the victim five or six times with a 380 caliber handgun. Defendant retrieved the victim's car speakers and amplifier from a room in the victim's house and put them in the trunk of his car. Defendant said that the victim was still breathing when he left. Defendant said he drove to Mississippi after stopping at a store to buy beer, and asked a friend to hook up the speakers and amplifier in his car.

On cross-examination, Sergeant Berryman said that the shell casings found at the victim's home were .380 caliber. He said that different kinds of weapons were capable of firing .380 caliber bullets.

Dr. Teresa Allen Campbell stated that she was a forensic pathologist and performed an autopsy on the victim on January 2, 2002. Dr. Campbell said that the victim died as a result of multiple gunshot wounds. Dr. Campbell said that the absence of soot or gunpowder on the victim's clothing indicated that the shooter was standing more than two feet away from the victim when the weapon was fired. One bullet penetrated the victim's upper right back causing the right lung to hemorrhage and collapse. Dr. Campbell said this wound was sufficient to cause death, although the victim could have possibly recovered from this wound if she had received immediate medical treatment. A second bullet entered the victim's body in the middle of her back, traveled through her body, and pierced her abdominal wall. Dr. Campbell said this wound was also sufficient to cause death. Dr. Campbell said that there was not a lot of bleeding associated with the abdominal wound because she believed that the victim had already expired from the chest wound. Two other bullets caused superficial wounds to the victim's back and upper leg.

II. Sufficiency of the Evidence

Defendant does not contend that he did not kill the victim. Defendant argues, however, that the evidence was insufficient to support a finding that the victim was shot during the perpetration of a theft or burglary. In support of his argument, Defendant refers to several inconsistencies in his statement. For example, Defendant said in his statement that he arrived at the victim's house around 8:00 p.m. on December 31, 2002. The victim's daughter, however, testified that she last spoke with her mother around 12:45 a.m. on January 1, 2002. At one point in his statement to the police, Defendant said that the victim was lying down on the bed in her daughter's bedroom when Defendant entered the house. At another point in the statement, Defendant recalled that the victim "rosed [sic] up from the floor beside the bed." Defendant argues that this inconsistence "makes no logical sense."

Defendant argues that the fact that he went with his friend to get a refund on his car speakers so he could buy the victim's speakers, that he parked in the victim's driveway that night, and that he repeatedly rang the door bell indicates that he did not go to the...