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06/25/93 STATE TENNESSEE v. AMOS CURTIS COPENNY

June 25, 1993

STATE OF TENNESSEE, APPELLEE,
v.
AMOS CURTIS COPENNY, APPELLANT



Hamilton County. Hon. Stephen M. Bevil, Judge. (Murder, Second Degree)

Summers, Tipton, White

The opinion of the court was delivered by: Summers

The appellant, Amos Curtis Copenny, was indicted for first-degree murder. A jury of his peers convicted appellant of second-degree murder, a Class A felony. The trial court sentenced him to sixty (60) years as a career offender. Appellant presents an appeal as of right, contesting the following issues:

I. Whether the trial court erred in refusing to admit into evidence proof of the victim's propensities for violence and drug abuse.

II. Whether the trial court erred in admitting into evidence the testimony of Lawanda Hughley concerning a prior shooting at the victim.

III. Whether the trial court erred in failing to grant a motion for judgment of acquittal.

IV. Whether the trial court erred in admitting into evidence an altercation between the appellant and Janie Jones.

V. Whether the trial court erred in sentencing the appellant.

FACTS

On the morning of September 4, 1990, the victim, Bobby Wilson, was shot to death near the corner of Sixteenth Street and Market Street in Hamilton County. No one witnessed the shooting.

The defense presented the only witness to the events immediately preceding the shooting. Anthony Robinson testified that on the morning of September 4 he was on his way to work. While waiting for a bus on the corner of Sixteenth and Market, Robinson saw a car turn onto Sixteenth Street. As soon as it turned, the car began backing up, until it was parked perpendicularly in the middle of Sixteenth. Robinson turned around to look for the bus when he heard the sound of three or four gunshots coming from the direction of the car. He ran for cover and, looking back, saw the car still parked in the middle of Sixteenth and a smaller vehicle about twenty-five feet farther down the street. He thought that he saw the victim kneeling behind the opened, passenger-side door of the vehicle.

The state introduced testimony from individuals at the J. Telford Freeman Brake Service, a business located on the corner of Sixteenth and Market. Witnesses there heard between one and four shots. Some of the witnesses stated that the last shot was louder than the others. Soon after the gunfire ended, a man ran into the Brake Service building and dropped a .44 caliber pistol on the floor. Clutching his chest, he shouted, "Call the ambulance. I've been shot."

Bill Dickson, owner of the Brake Service, saw two cars on Sixteenth Street. One was parked in the middle of the street, perpendicular to the curb, with its rear end in the Brake Service parking lot and its driver-side door open. The other car was driving backward, up Sixteenth Street, away from the parked car.

William Gilliam of the Chattanooga Police Department was at the Erlanger Hospital Emergency Room when the victim was brought in with a gunshot wound to his chest. Officer Gilliam asked the victim what had happened, and he informed the officer that "Purenie Copenny--Amos Copenny" had shot him. The victim later died at the hospital.

Police found a Smith & Wesson .44 caliber pistol on the floor of the brake company. Outside, a 1978 Chevrolet Caprice was parked perpendicular to Sixteenth Street. An investigation of the vehicle revealed two .44 caliber live rounds in the front seat. A projectile appeared to have struck the trunk area. Metal protruded up at an angle indicating that the vehicle was struck by someone firing from behind. An examination of the revolver dropped by the victim revealed six shells in the chamber, only one of which had been expended. The shells had brass jackets, and the hole in the trunk of the vehicle contained residue of a lead projectile and a brass jacket. A short distance from the rear of the vehicle, police found a lead nosed projectile lying in the parking lot. The police identified the projectile as a .38 caliber bullet.

While investigating the appellant's residence, Officer Lynn Bible of the Chattanooga police Department received a .38 caliber pistol from appellant's mother. Police determined that the .38 caliber projectile found in the parking lot matched the .38 caliber gun appellant's mother gave to the police. Police compared the sounds made by firing a .44 caliber weapon and a .38 caliber weapon. They concluded that a .44 weapon would be louder.

Dr. Frank King, the Hamilton County Medical Examiner, testified that the victim died from a single gunshot wound to the chest. The appearance of the victim's wound was consistent with a distant gunshot wound--two feet or greater from the body at the time the shot was fired.

Lovelle Johnson, appellant's brother-in-law, knew that appellant and the victim were having problems. He stated that one day appellant came to his house with a .38 caliber pistol and fired it in his backyard. Appellant informed Johnson that he was going to shoot the victim.

The victim had spent the weekend before the shooting with Lawanda Hughley. That weekend, the victim and Ms. Hughley were walking to their car when someone called the victim's name. He walked to the rear of the vehicle to investigate when gunshots struck the car's back window and its right rear section. Ms. Hughley stated that at the time of the incident the victim was not carrying a gun nor had she ever known him to carry a gun. She stated that after the incident he purchased a gun.

Janie Jones testified that she has a child by the appellant. They lived together for some time before appellant left town. When he came back, she was seeing the victim. She stated that on one occasion she was in the victim's vehicle when appellant walked up to her and told her to get out of the car. She refused and started to drive away when appellant said, "Bitch, . . . if I want to get to you, I could get to you." He then broke her driver-side window. At a later time, he told Ms. Jones to tell the victim that, "I've got something for him." He also said, "Tell your friend that I am going to get him." As a result of these threats, she and the victim decided to end their romance. She stated that she had never known the victim to carry a weapon.

Testifying for the appellant, Aliscia Patillo stated that she and appellant were at Larry's Lounge about four weeks before the shooting when the victim came in and told appellant, "You and your bitch can go down." The victim then left and appellant followed him out the door. Ms. Patillo watched appellant walk towards his car and saw the victim run past him with a gun. Two other men surrounded the appellant with guns. Appellant tried to get into his car, but the victim began to fight with him. One of the other men hit appellant in the head with the butt of a pistol, and the gun discharged.

Sabryna McClendon testified that she spent the weekend before the shooting with appellant. They were together from the time he got off work on Friday until Sunday night around ten o'clock. She also saw appellant the morning of September 4, when she became sick and called appellant. He came to her residence and drove her to her grandmother's house. They spent the night there, and he left in the morning.

Appellant's sister, Brenda Johnson, also testified for the defense. She has been married to Lovelle Johnson for three years. Lovelle Johnson informed her that he was going to damage appellant's case because another of the appellant's sisters had stolen his car.

I.

In his first issue, appellant contends that the trial court erred in not admitting into evidence proof of the victim's propensities for violence and drug usage. In particular, appellant wanted to offer proof of: (1) the victim's convictions for drug offenses and drug offenses pending against the victim at the time of his death; (2) the presence of cocaine in the victim's blood stream; (3) a small amount of marijuana found in the victim's pocket at the time of his death; and (4) ...


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