State v. Smith
| Decision Date | 27 August 2014 |
| Docket Number | No. E2013-00215-CCA-R3-CD,E2013-00215-CCA-R3-CD |
| Court | Tennessee Court of Criminal Appeals |
| Parties | STATE OF TENNESSEE v. RICHARD CLEOPHUS SMITH |
Appeal from the Circuit Court for Knox County
Appellant, Richard Cleophus Smith, was indicted by presentment by the Knox County Grand Jury for felony murder, first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, evading arrest by motor vehicle, evading arrest, aggravated assault, reckless endangerment, leaving the scene of an accident involving injury, driving while privilege suspended, and failure to provide proof of financial responsibility. At the conclusion of a jury trial, the jury found Appellant guilty of all charges except aggravated assault for which he was found guilty of the lesser included offense of reckless endangerment. The trial court sentenced Appellant to an effective sentence of life plus twenty-six years. On appeal, Appellant argues that: (1) the evidence was insufficient; (2) that the trial court constructively amended the presentment charging driving while license suspended, after jeopardy attached by instructing the jury on the offense of driving without a license in possession; (3) that the trial court erred in denying Appellant's request for a special jury instruction; (4) that the trial court erred in allowing the testimony of two officers; (5) the trial court erred in denying his request for notes and memoranda generated by State witnesses when generating their reports; and (5) the trial court erred in imposing consecutive sentences. We have thoroughly reviewed the record on appeal. We affirm all judgments except the judgment for driving without a license in possession which must be dismissed because the trial court constructively amended the presentment by giving the contested jury instruction.
JERRY L. SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and D. KELLY THOMAS, JR., JJ., joined.
Robert L. Jolley, Jr., and Jennifer L. Gower, Knoxville, Tennessee for appellant, RichardCleophus Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Kevin Allen, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINIONEarly in the day of July 3, 2009, Desmond Cowan witnessed an argument between his brother, Michael Cowan, and Ron C., who was Appellant's cousin. Ron C. owned a maroon Cadillac at the time. Later that morning, someone shot at Michael Cowan in the Walter P. Taylor Homes housing project in Knoxville, Tennessee. Desmond Cowan retrieved his gun from his aunt's house after he heard that someone had shot at his brother. When he returned to the Walter P. Taylor Homes in the late afternoon, he went to the neighborhood market. As he left the market, someone began to shoot at him from a vehicle, so he shot back. He did not recognize the vehicle and could not identify the driver.
On the same day, Margaret Cowan heard that there had been a shooting involving her sons and became concerned. She began looking for them. As she walked in the neighborhood in the late afternoon she noticed a maroon Cadillac driving slowly. The driver of the vehicle sat up and began shooting from the car. The individuals outside began running. Ms. Cowan ran inside the neighborhood market.
James Johnson and his friend, Ronald Gilmore, were walking to the neighborhood market at the same time. Mr. Johnson also saw the maroon Cadillac and realized gunshots were coming from inside the car. He and Mr. Gilmore headed towards the market. Mr. Gilmore was shot before he could reach the market and later died from his injuries.
At 5:15 p.m., Officer Joseph Huckleby with the Knoxville Police Department received a dispatch call for a shooting at the neighborhood market in the Walter P. Taylor Homes. When he arrived at the scene, people in the crowd pointed toward a maroon Cadillac yelling, "There he is." Officer Huckleby activated his emergency lights and began to pursue the Cadillac. The Cadillac sped up and led Officer Huckleby on a high-speed chase. Shortly thereafter, the Cadillac struck a gold Lincoln Continental. The accident disabled both vehicles. Officer Huckleby exited his vehicle with his gun drawn, and Appellant exited his vehicle and ran toward some nearby woods. Officer Huckleby did not follow Appellant into the woods because he did not have his radio. When Officer Huckleby returned to Appellant's vehicle, he saw two handguns lying on the floorboard.
Officers Timothy Thornton and Preston Willock responded to a call for assistance from Officer Huckleby. They arrived at the scene of the crash and went to the woods to look for Appellant. A resident of the area told the officers that he had seen an African-American male run behind his house. The officers went behind the house and saw Appellant running away from them. They ordered him to stop, and he got down on the ground and put his hands behind his back. He asked why he was going to jail. They responded "You know," and he responded, "They shot first." The officers arrested him.
The Knox County Grand Jury indicted Appellant for felony murder, first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, evading arrest by motor vehicle, evading arrest, aggravated assault, reckless endangerment, leaving the scene of an accident involving injury, driving while privilege suspended, and failure to provide proof of financial responsibility. Appellant's jury trial began on May 9, 2012. The trial court amended Appellant's charge for driving while privilege suspended to driving without license in possession after the discovery that Appellant's license was not suspended. At the close of the State's proof, the trial court dismissed the charge for failure to provide proof of financial responsibility. At the conclusion of the jury trial, the jury found Appellant guilty of all charges except aggravated assault for which he was found guilty of the lesser included offense of reckless endangerment.
The trial court conducted a sentencing hearing. At the conclusion of the hearing, the trial court sentenced Appellant to a mandatory life sentence for felony murder, a twenty-year sentence for attempted first degree murder, and six years for employing a firearm during the commission of a dangerous felony. The trial court ordered the twenty-year sentence to be served consecutively to the six-year sentence and further ordered the life sentence to be served consecutively to the two other sentences. Appellant's effective sentence is life plus twenty-six years.
Appellant's first issue on appeal is that the evidence was insufficient to support his convictions. The State disagrees.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and State's witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994) (citing State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992)). Thus,although the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty removes this presumption "and replaces it with one of guilt." State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State "the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom." See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own "inferences for those drawn by the trier of fact from circumstantial evidence." Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). "The standard of review 'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
Appellant argues that the evidence was insufficient to support his convictions of first degree murder and felony murder because the State presented no evidence connecting Appellant to the death of Mr. Gilmore. He argues that a bullet was not recovered from Mr. Gilmore's body to connect Appellant to his death and that the medical examiner could not determine the caliber of the bullet that killed Mr. Gilmore. In addition, Appellant summarily argues that "[b]ased on the description of the location of the shell casings" close to Mr. Gilmore's body "there is no evidence to prove beyond a reasonable doubt that [Appellant] fired the shot that killed Mr. Gilmore."
When the evidence is taken in a light most favorable to the State, the evidence showed that early...
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