State v. Pillow, No. M2002-01864-CCA-R3-CD (Tenn. Crim. 2/27/2004)
| Decision Date | 27 February 2004 |
| Docket Number | No. M2002-01864-CCA-R3-CD.,M2002-01864-CCA-R3-CD. |
| Parties | STATE OF TENNESSEE v. JASON D. PILLOW. |
| Court | Tennessee Court of Criminal Appeals |
Appeal from the Circuit Court for Maury County, No. 11850, Robert L. Jones, Judge.
Judgments of the Trial Court Affirmed.
James Marshall (at trial) and Barton E. Kelley (on appeal), Columbia, Tennessee, for the appellant, Jason D. Pillow.
Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; Mike Bottoms, District Attorney General; and J. Daniel Runde, Robert C. Sanders, and Joseph L. Penrod, Assistant District Attorneys General, for the appellee, State of Tennessee.
Gary R. Wade, P.J., delivered the opinion of the court, in which David G. Hayes and Jerry L. Smith, JJ., joined.
The defendant, Jason D. Pillow, was convicted of second degree murder, two counts of facilitation of attempted first degree murder, three counts of facilitation of attempted especially aggravated robbery, reckless endangerment, and facilitation of aggravated burglary. The trial court imposed a sentence of 25 years, which must be served at 100%, see Tenn. Code Ann. § 40-35-501(I)(1), (2)(B) (2003), for the second degree murder. Range I sentences of 12 years for each facilitation of attempted first degree murder, 6 years for each facilitation of attempted especially aggravated robbery, 2 years for reckless endangerment, and 4 years for facilitation of aggravated burglary were also imposed. The trial court ordered that the sentence for each facilitation of attempted first degree murder sentence be served consecutively to each other and to the second degree murder sentence. Further, the reckless endangerment sentence was ordered to be served consecutively to the sentences for second degree murder and facilitation of attempted first degree murder. The sentences for facilitation of attempted especially aggravated robbery are to be served concurrently to all the other sentences. Finally, the sentence for facilitation of aggravated burglary is to be served consecutively to the reckless endangerment sentence making the aggregate term 55 years. In this appeal, the defendant presents the following issues for review: (1) that the evidence was insufficient to support the convictions for facilitation of attempted first degree murder and facilitation of especially aggravated robbery; (2) that the trial court committed plain error by failing to instruct the jury on the lesser included offenses of facilitation of felony murder, aggravated assault, facilitation of aggravated assault, facilitation of attempted aggravated robbery, and attempted aggravated assault; (3) that the trial court committed plain error by failing to instruct the jury on the natural and probable consequences rule; (4) that the definitions of criminal responsibility and facilitation provided to the jury were inconsistent; (5) that the multiple convictions violate constitutional protections against double jeopardy; (6) that the trial court erred by refusing to suppress the defendant's pretrial statement; (7) that the closing argument by the state was improper; and (8) that the sentence is excessive. The judgments are affirmed.
On February 22, 2000, three armed gunmen entered the apartment shared by Chastity and Brandi Buie and shot Randy Massey, Paul Readus, and David Houston. Houston was killed. At the time of the offenses, Chastity Buie and her son, Eric Taylor, shared the apartment with her sister, Brandi Buie, and Brandi Buie's children, Alexis and Deray. On the day of the offenses, Massey, along with Readus and Houston, had made arrangements to meet Chastity Buie at the apartment in order to take her to dinner for her birthday. Massey had also asked Chastity Buie to arrange for Houston to purchase an ounce of cocaine and she agreed to arrange the purchase through Pharez Price,1 who had stayed at the apartment on the previous night. When Massey learned that the cocaine would cost $1500, however, he declined because of the expense. According to Chastity Buie, Price, who was still at the apartment, was angered by the response and threatened to "fix" them.
Massey, Readus, and Houston arrived at the apartment at approximately 4:30 p.m. and waited in the living room while Chastity Buie finished dressing. Price was watching television in one of the bedrooms. Ten-year-old Eric and six-year-old Alexis were in the kitchen and six-month-old Deray was asleep in a bedroom. After hearing a knock on the door, Brandi Buie went into the bathroom and while she was talking to her sister, heard gunshots. When Chastity Buie came out of the bathroom after the gunfire had stopped, she saw that Houston had been shot in the side. She then jumped from the balcony at the back of the apartment and ran to the front of the apartment to look for her son. Massey and Readus were lying on the sidewalk. Each had been shot. Later, she found Eric and Alexis in a neighbor's apartment. Chastity Buie never saw the intruders and was unable to identify the defendant as a participant in the crimes.
After Massey, Readus, and Houston arrived, Brandi Buie, Massey, and Houston drank cognac and smoked marijuana before traveling in Massey's car to pick up Eric and Alexis from daycare. When they returned, Chastity Buie was in the bathroom and Price was in a bedroom. Upon hearing a knock at the door, Brandy Buie looked through the peephole, saw only the top of a hat and mistakenly believed the visitor to be her sister's friend. After asking her sister to answer the door, Brandi Buie saw Massey open the door. When a man wearing a ski mask and carrying a long gun pushed his way into the apartment, Brandi Buie ran to the bathroom to warn her sister. She initially hid in a bedroom but after shots were fired, she ran into the other bedroom to get her baby, Deray. After taking the infant to her sister, she found that Houston, who had been shot in the side, was dying. Massey and Readus, both of whom had also been shot, asked her to call an ambulance. Price, who was still inside the apartment, directed her to call the police. Explaining that he could not be there when the police arrived, Price jumped from the back balcony.
Eric Taylor, who was ten years old at the time of the offenses, testified at trial that Massey, Readus, and Houston were at the apartment just prior to the shooting. He recalled that shortly before the shooting, he overheard Price, who was in one of the bedrooms talking on the telephone, tell someone to "bring the guns." Later, Eric heard a knock at the door and saw three armed gunmen enter the apartment. He remembered that two of the men were carrying handguns and one was carrying a long gun. He also recalled that he heard gunfire just after Massey, Readus, and Houston began to struggle with the intruders. Eric then ran to a neighbor's apartment and asked them to telephone the police.
Paul Readus testified that when he arrived at the Buie apartment on the day of the offenses, Price said that he was sleepy and returned to a back bedroom. A few minutes later, Readus heard a knock and as Massey started to open the door, he saw three armed men pushed their way inside. Readus testified that the first individual to enter was carrying a handgun and was immediately grabbed by Houston. Readus stated that he struggled with a second gunman, who was carrying a "rifle-type" weapon and who shouted to his companions, "Kill that ni****." At that point, Readus was shot first in the knee and then in the abdomen. Readus testified that after he escaped outside, he was shot three more times, once in the finger, once in the forearm, and once in the back. He was airlifted to Vanderbilt Hospital where he was treated for eleven days. After leaving Vanderbilt, Readus spent eleven and one-half weeks at Bordeaux Hospital and more than ten weeks at Health South Hospital, where he had continued to receive treatment for his injuries until the trial date. Readus, who was paralyzed as a result of the injuries he received, could not identify the defendant as one of the intruders, explaining that the perpetrators wore masks during the attack.
Randy Massey testified that Houston initially wanted to purchase an ounce of cocaine but had cancelled the transaction because he believed the $1500 purchase price was too high. Massey recalled that when he answered a knock at the front door of the Buie apartment, two men, one carrying an assault rifle and another carrying a nine millimeter, pushed their way inside, demanding that the three victims "get down." Massey testified that he tried to escape to a back bedroom and when he was ordered by the intruders to stop, he grabbed Price, using him as a shield as he walked back through the hallway. Massey contended that when the intruders ordered him to release Price, he pushed Price toward the men and tried to escape through the front door. He recalled that one of the gunmen struck him in the head with a weapon three times before he reached the door. Massey was shot first in the buttock and then in the left leg. Later, Massey was airlifted to Vanderbilt Hospital, where he was treated for one week. As a result of the gunshot wounds, Massey has permanent nerve damage that will require hip replacement surgery.
Tennessee Bureau of Investigation Agent T.J. Jordan, who assisted in the investigation, learned from an interrogation of Price that Omar Jennings was one of the assailants. Later, Jennings identified Demarcus Gant and the defendant as the other participants in the offenses. In an interview which took place approximately five months after the crimes, the seventeen-year-old defendant initially denied participation. After being informed of Jennings' statement, however, he admitted that he was present during the crimes. After a brief conversation with Officer Terry Perry, the defendant provided Agent Jordan with the following...
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