State v. Pope

• Decision Date: 30 December 2013
• Docket Number: No. W2012–00033–SC–R11–CD.,W2012–00033–SC–R11–CD.
• Citation: 427 S.W.3d 363
• Parties: STATE of Tennessee v. Marcus POPE.
• Court: Tennessee Supreme Court

427 S.W.3d 363

STATE of Tennessee

v.Marcus POPE.

No. W2012–00033–SC–R11–CD.

Supreme Court of Tennessee,

at Jackson.

Nov. 6, 2013 Session.

Dec. 30, 2013.

Stephen Bush, Public Defender, and Phyllis Aluko (on appeal) and Dianne Thackery (at trial), Assistant Public Defenders, for the appellant, Marcus Pope.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Andrew C. Coulam, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

GARY R. WADE, C.J., delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A. CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

GARY R. WADE, C.J.

The defendant, convicted of aggravated robbery and aggravated burglary, and sentenced to concurrent terms of ten and six years respectively, appealed, challenging the sufficiency of the evidence. The Court of Criminal Appeals affirmed the convictions and sentences, holding that the evidence of identification was sufficient as to both convictions and, as to the aggravated burglary, holding that the victim had not given his “effective consent” to the entry of the residence. We granted the application for permission to appeal to determine whether the evidence, circumstantial or direct, was sufficient to establish both convictions. Because the jury had the prerogative to reject the alibi testimony offered by the defendant, the identification evidence was sufficient as to both offenses. The aggravated robbery conviction is, therefore, affirmed. As to the aggravated burglary, however, the evidence is insufficient as a matter of law to support the conviction because there was no evidence that the Defendant engaged in an act of “deception,” as defined by statute, in the context of “effective consent.” The aggravated burglary conviction is, therefore, reversed and the charge dismissed. We remand for a new trial on the lesser included offenses of aggravated criminal trespass and criminal trespass.

I. Facts and Procedural History

Carl Brown (the “victim”) sold candy, drinks, and other snacks from his one-bedroom residence in the South Memphis community. On the afternoon of August 12, 2010, he was robbed by two men of several items of merchandise and $300 to $400 in cash. A police officer arrived at the scene at 1:56 p.m., within minutes after the robbery. On the following day, the victim identified one of the robbers, Marcus Pope (the “Defendant”), from an array of photographs presented by Memphis Police Officer Timothy Foster, who led the investigation. Based on the identification, an arrest warrant was issued for the Defendant. He was ultimately indicted for aggravated robbery, aggravated burglary, and the employment of a firearm during the commission of a dangerous felony.

At trial, the victim, who had lived in the South Memphis area for over five years, testified that he supplemented his disability income by selling from his home such items as candy, popcorn, sodas, and ice cream to the people of his neighborhood. He explained that he had developed the business concept as a convenience to his community because the nearest store was a mile or a mile and a half away. The victim, who used both a “scooter” and a cane to move about the interior of his residence, testified that he typically made all sales through a window because he had been robbed on prior occasions. He described the Defendant as a regular customer who had been coming to his residence for at least a year and who was often accompanied by the mother of his children and her sister, both of whom lived in the neighborhood. According to the victim, approximately two weeks prior to the robbery, he had noticed the Defendant with a male companion. On the two days preceding the day of the robbery, the companion had arrived at the victim's residence, asked to purchase a drink, and been served through the window. When the Defendant arrived with his companion on the day of the robbery, the victim invited the two men to enter his residence because he “felt so comfortable with [the Defendant].”

After they entered the residence, the victim turned his back and, as he walked to his “scooter” in the living room, the Defendant's companion “ran towards [the money] change box.” While the victim was “scuffling” with the companion and “biting him on the hand,” the Defendant “came up and hit [the victim] in [his] head.” The victim testified that he “might have blanked out for a second but [he] woke up begging for [his] life,” telling the two men, “[Y]ou all get what you want, just don't kill me.” The Defendant's companion, who was holding a gun, “stood right over [the victim]” while the Defendant “rummag[ed] through [the] house” and removed from the floor anything that the victim may have been able to use in self-defense. The victim stated that “they” found $300 or $400 in his pocket and that “they” also took knickknacks, snacks, and a jar of pennies. According to the victim, the Defendant then tied him with a telephone cord and asked, “[W]hy [are] you trying to put up a struggle, old man?” The victim also recalled that the Defendant's companion, before leaving, “sprayed [him] with some mace.” He described the robbery as lasting “about six minutes.” After the two men left the residence, the victim struggled free within “half a minute,” went to the doorway, and shouted for help. A passerby stopped and called 911. Although the victim claimed to know the Defendant by sight, he could not recall the Defendant's name when interviewed by the police. As a part of the police investigation process, the victim provided a description of the Defendant—“nineteen, stands about [5' 4? or 5' 5?], dark complexion”—and identified him from a photographic lineup. He again made a positive identification at trial.

On cross-examination, the victim admitted that he would occasionally allow customers to come inside his residence, especially small children. He insisted, however, that he ordinarily made all sales through the window. He acknowledged that he received a “disability check from the government,” and explained that he did not make enough money to be required to pay income tax or otherwise report his earnings from sales to the Social Security Administration. Upon further questioning, the victim conceded that he had been convicted in 2001 for selling less than a half a gram of cocaine for which he had received a three-year probated sentence.

At the conclusion of the State's proof, the trial court granted the Defendant's motion for acquittal as to the charge of employing a firearm during a dangerous felony.

The Defendant's mother, Lovie Pope, was offered as an alibi witness for the defense. She claimed that the Defendant was at her three-bedroom home in Whitehaven, a fifteen- or twenty-minute drive from the victim's residence, when she received a call about the robbery at “ten or ten-thirty” in the morning. She admitted, however, that she had failed to inform the police of her claim that the Defendant was at her residence for the entire day. Marquita Pope, the Defendant's sister, knew the victim and had purchased items at his residence, but she also maintained that at the time of the robbery the Defendant was at the residence she shared with him, his children, her brother, and her parents. When asked why she did not inform the police of her claims, she explained that she “didn't know who to talk to.” She further acknowledged that because she occupied a separate bedroom, she was unable to actually see the Defendant at all times on the date of the robbery. The Defendant's brother, Marquez Pope, also claimed to be an alibi witness. Pope, who knew the victim as “the candy man,” testified that he had made several purchases at the victim's residence in the past. He contended that the Defendant did not leave the family residence on the day of the robbery, but he admitted that he was asleep part of the time in a separate bedroom, could not account for the Defendant's whereabouts for portions of the day, and did not contact the police to make a statement. Pope also acknowledged that someone in the family had probably left the residence to walk to a store that day, possibly for cigarettes, but he could not recall which family member did so.

The Defendant chose to testify. He admitted that he was familiar with the victim as “candy man,” having gone to his residence “once a month” or so, when his children visited their grandparents, but he denied being involved in the robbery. He stated that he lived with his mother, his brother, his sister, his sister's baby, and his two young sons, and contended that he was at his residence at the time of the robbery.

Walter Burns, a patrol officer with the Memphis Police Department, testified as a rebuttal witness for the State. As the first officer on the scene, he found that the victim had suffered “a gash at the top of his head.” According to Officer Burns, the first report of the robbery to the police was between 1:40 and 1:45 p.m.

After closing arguments, the trial court instructed the jury on the charges of aggravated robbery and aggravated burglary and their respective lesser included offenses, including all applicable definitions, except for the definition of “deception” as it relates to the “effective consent” of the victim, an element of the offense of aggravated burglary. Neither the State nor the Defendant lodged an objection to the instructions.

The jury found the Defendant guilty of aggravated robbery, a Class B felony, and aggravated burglary, a Class C felony, implicitly rejecting the alibi defense and the claim of misidentification. The trial court imposed concurrent, Range I sentences of ten and six years, respectively. On direct appeal, the Court of Criminal Appeals affirmed the convictions and sentences. In the application for permission to appeal, the Defendant argued that the evidence of...