State v. Toles

Decision Date17 May 2019
Docket NumberNo. W2018-01175-CCA-R3-CD,W2018-01175-CCA-R3-CD
PartiesSTATE OF TENNESSEE v. TELVIN TOLES
CourtTennessee Court of Criminal Appeals

Appeal from the Criminal Court for Shelby County

No. 16-03687

Lee V. Coffee, Judge

Defendant, Telvin Toles, was convicted by a Shelby County jury of one count of felony murder. On appeal, Defendant argues that the trial court erred by refusing to instruct the jury on self-defense and voluntary manslaughter; that the evidence is insufficient to support his conviction; that the trial court abused its discretion in ruling on the admissibility of certain photographs; that the trial court erred by allowing additional security officers to sit behind Defendant throughout the trial; that the trial court erred in overruling Defendant's objections to certain questions asked by the State; and that the trial court erred in allowing expert testimony when the full ballistics report had not been produced during discovery. Upon our review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Josie S. Holland (on appeal); Jason Ballenger and Benjamin Israel (at trial), Memphis, Tennessee, for the appellant, Telvin Toles.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; Chris Lareau and Carla Taylor, Assistant District Attorney Generals, for the appellee, State of Tennessee.

OPINION
Factual and Procedural Background

On June 9, 2016, Defendant was indicted for one count of first degree felony murder and two counts of aggravated robbery. The murder charge was severed from the robbery charges and tried before a sequestered jury in April 2018.1

At trial, Tracy Simpson testified that the victim, Charles Davis, was 63 years old in December 2015. Though her mother and the victim were not legally married, Ms. Simpson considered the victim to be her stepfather because he had been with her mother for over 25 years. Ms. Simpson described the victim as "[v]ery calm, very patient, loving. Would do anything for anybody[.]" Ms. Simpson did not know the victim to be violent, to carry a gun, or to use drugs. Ms. Simpson stated that the victim was not the kind of person who would flag down a random car of people he did not know.

Juilie Juarez testified that on the afternoon of December 1, 2015, she was at home in her living room. She was watching television and using her cell phone when she heard a gunshot. She got up, looked out the front window, and saw three men fighting. Two men appeared to be holding down the third man and were beating him. One of the men was thin and was wearing a striped jacket. The other was "big, buff" and was wearing a black jacket. The victim appeared to be blocking blows from the assailants but was not hitting back. Ms. Juarez stated that one of the men stepped back and shot the victim three times. The two men then quickly got into a white Maxima and fled, leaving the victim on the ground. Ms. Juarez got her father's attention and called 911. Ms. Juarez testified that she recognized the victim from the neighborhood and that her father referred to him as a friend. Ms. Juarez had never seen the victim be mean or violent towards anyone. Ms. Juarez did not recall seeing the victim with a gun and testified that the shooter still had the gun when he got into the car. On cross-examination, Ms. Juarez agreed that she did not see the beginning of the fight, did not know who started it, and did not see who fired the first shot that initially got her attention. Ms. Juarez testified that she did not see either men take anything from the victim.

Pedro Juarez, Ms. Juarez's father, testified through an interpreter that he was at home on December 1, 2015. He was sitting at a table using his phone when he heard the first gunshot. His daughter went to the window and told him that people were fighting outside. Mr. Juarez ran to the window and saw three people fighting. The victim was on the ground. One of the men had a weapon, and he got up and shot the victim while the other man was holding the victim from behind. Mr. Juarez testified that the shooter then searched the victim's pockets before both assailants ran to the car and drove off. Mr. Juarez went outside to see if he could help the victim, but the victim could not talk. Mr. Juarez knew the victim because he used to walk around the neighborhood every day. Mr.Juarez testified that the victim was friendly and that they often talked to each other, even though there was a language barrier. Mr. Juarez testified that he had never seen the victim be violent or carry a gun. On cross-examination, Mr. Juarez reiterated that one of the men shot the victim and then searched his pockets, though he agreed that he could not see if the man actually took anything. Mr. Juarez also agreed that he did not see the fight start or who started it, and he did not know to whom the gun belonged. Mr. Juarez admitted that he had been convicted of aggravated assault in 2015.

Officer Namika Johnson of the Memphis Police Department responded to a shots fired call and arrived on the scene around 4:25 p.m. She observed the victim lying face down on top of a storm drain. She rolled him over onto his back. Blood was coming from his mouth, but Officer Johnson could not see any gunshot wounds. The victim did not have a pulse, so Officer Johnson began performing CPR.

Sergeant Christopher Slaughter processed the scene after the victim had been taken to the hospital. He did not find any bullets or shell casings at the scene. A hat and an empty bottle were found on the ground near the storm drain, but Sergeant Slaughter did not remove the grate over the storm drain to search for more evidence. Sergeant Slaughter received from another officer the victim's personal property, which included the victim's wallet with his identification and social security card, a cross pendant, a lottery ticket, $12.74 in cash and coins, a cell phone, and a lanyard with two pocket knives.

Dr. Paul Benson, a forensic pathologist with the West Tennessee Regional Forensic Center, performed the autopsy of the victim. Dr. Benson testified that the victim's cause of death was multiple gunshot wounds. One gunshot wound entered the victim's right armpit, perforated his lung, injured his jugular vein and carotid artery, and fractured his ribs. The bullet did not exit and was able to be recovered from the victim's left shoulder. This wound was fatal. The victim had another gunshot entrance wound to his left buttock. The bullet hit his bladder and small intestine before exiting his right front pelvis. The victim had a third gunshot wound to his left thigh. The bullet penetrated less than an inch but was lost before the autopsy. Dr. Benson explained, "It may have fallen out if there was manipulation of the clothing somewhere between where the shooting occurred and the Medical Examiner's office." As to the depth of the wound, Dr. Benson explained that it "probably could be a ricochet from something, or it could have hit something else first before it hit the thigh. It only went in a very superficial amount[.]" The victim also had blunt force injuries to his head, knees, and hands. A toxicology report showed that the victim did not have drugs or alcohol in his system.

Kimyata McWilliams testified that Defendant rented a room from her for five or six months in 2015. Defendant drove a white Maxima. On December 1, 2015, Defendant came by the house a couple of times. The second occasion, sometime after themurder, Ms. McWilliams noticed that someone else was driving Defendant's car. Defendant got out of the car, went across the street to the back of his mother's house, came back around to the front, handed something to a person in a red pickup truck, and then the person driving Defendant's car came back and picked him up. Ms. McWilliams knew the driver of the car as "P" and was able to identify him in a photographic lineup as Richard Leach, the indicted codefendant. Ms. McWilliams also identified Leach in a photograph from Facebook of "Telvin and his friend."

Defendant did not come back to Ms. McWilliams's house after December 1, but he called a couple of times about getting his child's coat that he had left after Ms. McWilliams had put him out of the house. After he did not show up, Defendant called and "said he had gotten into something, and couldn't come around there because he was hiding[.]" Defendant did not tell Ms. McWilliams what he had gotten into at first. Ms. McWilliams testified that Defendant later told her that someone had tried to rob him. Ms. McWilliams testified that she gave a statement to police on December 4, 2015, and that she "[b]asically" told the police the following:

He called me, and he was telling me that he couldn't come to the house because he was hiding from police. He got into it with the old man. The old man tried to rob him. It was self-defense. And he had to get the old man - - I don't know. I know it was about some weed.

The State presented Ms. McWilliams her statement to refresh her recollection. Ms. McWilliams then testified that Defendant "said he f***ed up. The old man tried to rob him, so he had to get him." She then agreed that she told police that Defendant said, "I f***ed up. I tried to rob the old man in the neighborhood behind us." Ms. McWilliams explained, "Telvin told me that the old man tried to rob him, but I know the old man wasn't trying to rob him for no weed," so she "told the police that Telvin robbed the old man." When the police presented Ms. McWilliams with a photographic lineup, she wrote the following under Defendant's picture:

This is Telvin Toles. He told me that he couldn't come get his child's coat because he was hiding out, staying away from the house. Police
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