State v. Thompson

• Decision Date: 06 May 2009
• Docket Number: No. E2006-02093-SC-R11-CD.,E2006-02093-SC-R11-CD.
• Citation: 285 S.W.3d 840
• Parties: STATE of Tennessee v. Joey Dewayne THOMPSON.
• Court: Tennessee Supreme Court

285 S.W.3d 840

STATE of Tennessee v. Joey Dewayne THOMPSON.

No. E2006-02093-SC-R11-CD.

Supreme Court of Tennessee, at Knoxville.

January 7, 2009 Session.

May 6, 2009.

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Joey Dewayne Thompson.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe and Cameron L. Hyder, Assistant Attorneys General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

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

The defendant was initially charged with premeditated first degree murder and felony murder of one victim (Counts I and II in the indictment) and the attempted first degree murder of a second victim (Count III). He was found guilty of the lesser-included offense of second degree murder on the first count, a mistrial resulted on the second count, and, as to the third count, the jury acquitted the defendant on the primary charge but returned a guilty verdict of attempted second degree murder, a lesser-included offense. On direct appeal, the Court of Criminal Appeals, because of error in the instructions to the jury, reversed the convictions on Counts I and III and remanded for a new trial. Prior to the second trial, the State voluntarily dismissed Count III, the attempted second degree murder charge, and prosecuted the defendant only on Count I, for second degree murder, and Count II, for felony murder, both of the first victim. After the jury returned verdicts for the lesser-included offenses of voluntary manslaughter on Count I and second degree murder on Count II, the trial court imposed sentence and merged the two convictions. The defendant appealed, contending that because the prior jury had in effect returned a verdict of acquittal on the attempted first degree murder of the second victim, and because the alleged attempted first degree murder was the only possible predicate offense to support the felony murder charge in the retrial, the trial court had erred by allowing the felony murder charge to go to trial. The Court of Criminal Appeals affirmed the conviction. Because collateral estoppel, as a corollary in criminal cases of the constitutional protection against double jeopardy, precludes a guilty verdict on the requisite predicate offense for felony murder, we must reverse and dismiss the second degree murder conviction as a lesser-included offense of the improper primary charge. Otherwise, the judgment of the Court of Criminal Appeals upholding the conviction and sentence for voluntary manslaughter is affirmed.

On June 23, 2001, Latoya Robinson ("Robinson"), was shot and killed, and her boyfriend, Travis Burgins ("Burgins"), was seriously injured. While driving a Buick LaSabre on McPherson Street in Knoxville near its intersection with Texas Avenue, Robinson suffered two bullet wounds to her lower right leg, one to her right forearm, and one to her right thigh. The fatal shot, however, passed through her upper right arm and into the chest, breaking ribs and piercing the heart and both lungs before passing through the left side of her body. Burgins sustained one gunshot wound to his left leg, which fractured his thigh, and four wounds to his right leg.

Procedural and Factual History

A detailed summary of the procedural and factual history of the case is in order. Joey Dewayne Thompson (the "Defendant") was initially charged with the premeditated first degree murder of Robinson and the attempted first degree murder of Burgins. Later, the State also charged the Defendant with the first degree felony murder of Robinson, a charge predicated upon the attempt to commit the first degree murder of Burgins. The Defendant was tried in April of 2002 and convicted of two crimes: the second degree murder of Robinson, as a lesser-included offense to the charge of premeditated first degree murder (Count I); and the attempted second degree murder of Burgins, as a lesser-included offense to the charge of attempted first degree murder (Count III). Because the jury was unable to reach a verdict on the first degree felony murder charge (Count II), a mistrial was declared.

On the direct appeal of the two convictions, the Court of Criminal Appeals reversed, finding that the trial court had failed to provide adequate instructions to the jury by completely omitting a portion of the statutory definition of "knowing," an essential element as to each of the crimes.¹ See Tenn.Code Ann. § 39-11-106(a)(20) (1997); State v. Ducker, 27 S.W.3d 889, 896 (Tenn.2000). A new trial was ordered. State v. Thompson, No. E2003-00569-CCA-R3-CD, 2004 WL 1592817 (Tenn. Crim.App. July 16, 2004). The State did not file an application for permission to appeal.

After the remand to the trial court, the Defendant filed a motion to strike the pending first degree felony murder count from the indictment. The Defendant contended that because the conviction on the lesser charge of attempted second degree murder of Burgins served as an acquittal on the primary charge of attempted first degree murder of Burgins, and because attempted second degree murder was not among the statutory list of predicate felonies necessary for a charge of felony murder,² the State was barred by collateral estoppel and principles of double jeopardy from prosecuting on that count in the indictment. Although the trial court denied the motion to strike the felony murder count, the State, on the eve of the second trial, filed a nolle prosequi on the attempted second degree murder of Burgins. Thus, the State prosecuted on two counts: Count I, for the second degree murder of Robinson and Count II, for her felony murder.

Carol Wright Pfefferle, a dispatcher at the 911 center, was the first witness for the State in the second trial. She testified that at approximately 5:00 p.m. on June 23, 2001, she received a telephone call from an unidentified caller reporting a shooting. The audiotape of the conversation was played for the jury. The caller reported that a black man had thrown his hands up, pulled a weapon from his shorts pocket, and "unloaded his gun" into a vehicle.

Julian Dixon, who lived on Texas Avenue near the scene of the crime, was also a State witness. On the afternoon of the shooting, he noticed a small black car come to a stop on McPherson Street near its intersection with Texas Avenue. When a second car approached from behind the black car, he saw the Defendant, whom he had known "all his life," step from the curb into the street and trot in the direction of the second vehicle. According to Dixon, the Defendant had "a pistol down at his thigh." As the black car was driven away, the Defendant began to fire shots into the passenger side of the second vehicle. Dixon testified that the vehicle lurched forward and the Defendant followed alongside, firing seven to ten shots from three to four feet away. The shooting stopped when the car traveled beyond Dixon's range of vision, but the Defendant, who was still on foot, returned into view and then went "back across Texas [Avenue]."

At the time of the shooting, Shirley King, who was with her husband and three grandchildren on the porch of her residence at the corner of McPherson Street and Ohio Avenue, heard gunshots, pushed her grandchildren inside, and telephoned the police. When she looked out of her window, she observed the car occupied by the two victims traveling slowly toward her yard. The man inside used his left hand to push the woman off the steering wheel in order to stop the vehicle. King, still on her cordless telephone with the police, hurriedly went outside with her husband. When she asked Burgins who had fired the shots, he answered, "Thug shot me." King, who was unfamiliar with the name "Thug," did not see any weapons inside the car at the time. She testified that Robinson, who had wounds to her side, her legs, and her arm, was unable to talk and apparently died before the ambulance arrived.

Dr. Brian Daley, a specialist in general surgery in the critical care unit at the University of Tennessee Medical Center, treated Burgins upon his arrival at the hospital. He found four wounds on the outside of Burgins' right leg with matching "marks" on the inside of the right leg and one wound just above the left knee. According to Dr. Daley, Burgins, who was able to communicate during the course of his treatment, initially identified himself as Tyran Begin. None of Burgins' wounds were life threatening.

Dr. Sandra Elkins, the chief medical examiner for Knox County, performed an autopsy on Robinson. She testified that Robinson was shot five times and grazed by a sixth bullet. One of the bullets, which caused the most serious of the wounds, entered her upper right arm and passed through the arm and into her chest just below the armpit, fracturing one rib on the right side and one on the left. The bullet passed through the right lung, the heart, and the left lung before exiting the left side of the body. According to Dr. Elkins, a second shot fractured the right forearm the third shot entered the right thigh and lodged in the soft tissue behind the lower spine causing a fracture of the right pelvis. Two other gunshot wounds were to the right leg below the knee.

Knoxville Police Officer Gerald Smith, who investigated the crime scene within minutes of the shooting, discovered nine spent 9 mm cartridges, all of which were later determined to have been fired from the same weapon. The cartridges were located on McPherson Street at Texas Avenue over a distance of some 240 square feet. The passenger side window of the victims' Buick LeSabre, which was partially rolled down, was shattered by a single bullet. While investigating the scene, Officer Smith did not notice a weapon in the...