Appeal from the Criminal Court for Davidson County. No. 2007-C-1912 Monte Watkins, Judge.
The Defendants, brothers Elvin Hubie Pearson and Marcus Anthony Pearson,*fn1 were each charged with the first degree premeditated murder of Kenneth Scott, the felony murder of Scott while attempting the first degree murder of Frank Newsom, the felony murder of Scott while attempting the first degree murder of Lamarco Comer, the attempted first degree premeditated murder of Newsom, and the attempted first degree murder of Comer. Following a jury trial, Elvin was found guilty of the attempted voluntary manslaughter of Scott, and Marcus was found guilty of the first degree premeditated murder of Scott. Additionally, both were found guilty of both counts of felony murder and both counts of attempted first degree murder. Elvin received a sentence of life in the Department of Correction for the felony murder of Scott while attempting the first degree murder of Newsom, a conviction into which his attempted voluntary manslaughter conviction as well as his other felony murder conviction were merged. Marcus received a sentence of life in the Department of Correction for the first degree murder of Scott, a conviction into which both of his felony murder convictions were merged. Both Elvin and Marcus also received twenty years in the Department of Correction for each of their two attempted first degree murder convictions, those sentences to be served concurrently with each other but consecutively to their life sentences. In this direct appeal, both Elvin and Marcus contend that: (1) the State presented insufficient evidence of premeditation; and (2) the State committed prosecutorial misconduct in recalling a certain witness, Karen Carney. Elvin additionally contends that the trial court erred because it: (1) denied his motion to suppress Newsom's out-of-court identification; (2) denied his motion to suppress Comer's in-court identification; (3) did not allow Comer to be properly impeached regarding his prior juvenile convictions; (4) did not allow Newsom to be properly impeached regarding his prior felony convictions; (5) allowed the State to play a portion of one of his phone calls from jail; (6) failed to strike certain improper statements in the State's closing argument; (7) allowed the State to improperly impeach by transcript; (8) ordered consecutive sentences; and (9) considered irrelevant issues at sentencing. Finally, Marcus also contends that the trial court erred in failing to grant his severance motion. After our review, we affirm both the Defendants' convictions but remand their cases for resentencing on the issue of their consecutive sentences.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Remanded.
The opinion of the court was delivered by: David H. Welles, Judge
DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T. WOODALL, JJ., joined.
We will first summarize the evidence presented at trial: at about 11:00 a.m. on April 15, 2006, one of the victims, Kenneth Scott, left the house in which he lived with his parents. At about 2:00 p.m., Scott's father called Scott's cell phone to inquire whether Scott needed to be picked up and taken to work. Scott replied that he did not because he was riding with Frank Newsom, another one of the victims. At some point, Newsom and Scott picked up the third victim, Lamarco Comer, who needed help transporting his mother's broken-down car to the repair shop. After taking the car to the shop, Newsom, Scott, and Comer drove to Knoll Crest Apartments ("Knoll Crest").
Newsom had spoken earlier in the day to Andrew Shute, who had told Newsom that he had agreed to sell $600 to $700 of marijuana to one of the Defendants, Marcus Pearson. Shute had also told Newsom that he planned to "slick" Marcus out of the money, meaning that he planned to take the money from Marcus and leave without delivering any marijuana. Scott and Comer had no knowledge of this plan. Shute saw Newsom's car as it pulled into Knoll Crest; he called Newsom's cell phone and told Newsom to meet him at the top of the apartment complex. Newsom did so. Shute got into Newsom's car with Newsom, Scott, and Comer. Shute then called Marcus, told him he was coming to Knoll Crest, and instructed Marcus to park at a particular place for their meeting. Shute instructed Newsom to drive him to that place.
Upon their arrival, Shute saw Marcus' gold Dodge Stratus in a parking space at the appointed location. Newsom parked in an adjacent space. Shute exited Newsom's vehicle and got into the backseat of Marcus' vehicle. Marcus was in the driver's seat and his younger brother, Ronald Ettienne, was in the front passenger seat. Marcus was parked in front of a building with a breezeway running through its center; Shute told Marcus that the he had the marijuana in the breezeway and that he would return with it if Marcus gave him the money. Marcus did so. Shute exited Marcus' car, walked into the breezeway and, after turning around to make sure he was out of sight, ran to a waiting friend's car. They left.
Newsom, Scott, and Comer, drove away immediately after Shute entered Marcus' vehicle. They went to a nearby convenience store, returning to Knoll Crest between fifteen and sixty minutes later, intending to visit Newsom's sister's apartment in Knoll Crest's building F. As they parked in front of building F and exited the vehicle, Marcus' car and another unidentified car pulled up to the right. Elvin Pearson exited the unidentified car and walked toward Marcus' driver's side door, at which point Marcus exited the car.
Newsom, Scott, and Comer now faced the parking lot, with their backs to the entrance of a two-sided breezeway running away from them and through building F. Comer stood between Newsom and Scott; Scott stood on Comer's left and Newsom stood on Comer's right. Elvin and Marcus walked toward them. Elvin stood in front of Newsom, and Marcus stood in front of Scott. Elvin asked Newsom, "where your boy at?" Newsom, assuming he was referring to Shute, responded that he did not know. Elvin and Marcus each pulled out a gun; Marcus' gun was black and Elvin's gun was silver and black. Elvin pointed his gun at Newsom's face and chest. He then grabbed Newsom by the shirt and demanded Marcus' money. Newsom responded that he could call Shute and produced Scott's cell phone, which he had been holding. Newsom dialed Shute's number and handed the phone to Elvin.
Elvin put the phone to his ear for a few moments and then angrily hung up. It is not clear whether he spoke to anyone or heard a voicemail message. After hanging up, he grabbed Newsom again. At that moment, a car drove by through the parking lot and a woman yelled, "Hey, there's Booty Man" from inside. "Booty Man" is Newsom's nickname. Hearing this, Elvin and Marcus turned toward the parking lot. Seeing an opportunity for escape, Newsom pulled away from Elvin, turned around, and ran through the left side of the breezeway. Newsom heard shots after he had taken about two steps and saw Comer running through the right side of the breezeway. As Newsom rounded the corner at the end of the breezeway he saw Elvin shooting at him. He then continued to run into the grass field behind building F. Newsom was not hit and did not see any bullets hit Comer or Scott.
As Comer began running through the breezeway, he saw Scott try to run around the building. Comer also saw Elvin shooting at him. A bullet hit Comer in the leg; as he tried to get up Elvin shot him two more times in the same leg. At about the time Elvin fired the third shot into Comer's leg, Comer saw Marcus shoot Scott in the back. Comer heard about fifteen total shots. Police later found eight .40 caliber cartridge casings, five of which were clustered at the right entrance to the breezeway near where Marcus had been. The other three fell near the left entrance. Police also found five 9mm cartridge casings at the left entrance, near where Elvin had been. Comer was shot with 9mm bullets, and Scott with .40 caliber bullets.
Newsom turned around when the shots stopped and saw Comer crawling out of the breezeway. He also saw Scott running through the field holding his stomach. Scott then fell down. He then saw a policeman run onto the field and check both Comer and Scott before going to the front of the building. Newsom then ran over to Comer, who was still talking. He told Comer to hold on. He then ran over to Scott, who was lying face down in the grass. Newsom intended to roll Scott over, but he was told not to by a member of the crowd that had gathered. Newsom stayed in the field with Scott and Comer until paramedics arrived.
Karen Carney, another Knoll Crest resident, lived in building G, the building immediately next to building F. Just before the shooting, she went out onto her back porch with her son. She then saw a neighbor named Carlos with whom she had experienced problems in the past. As a result, she went back inside. She then heard shots coming from outside. After putting her son under the kitchen table, she looked out her front window and saw three black males, each carrying a gun, get into separate cars and drive away. Two wore baseball caps and all three had braided hair. She looked out her back window and saw Comer and Scott lying in the field.
Officer Edward Draves of the Metro Nashville Police Department responded first to the incident. He had been at building R on another call when he heard ten to fifteen shots coming from the vicinity of building F, about fifty to seventy yards away. Later testimony established that the shooting occurred at about 4:50 p.m. As he reached the field behind building F, Officer Draves saw two black males, later identified as Comer and Scott. Comer was running toward Officer Draves, while Scott ran away from him. Officer Draves drew his weapon on Comer and told him to lay on the ground. Comer told Officer Draves that he had been shot. After patting down Comer and calling for backup, Officer Draves ran over to Scott, who had fallen down. Officer Draves ordered Scott to put his hands out, but he received no response. Officer Draves saw a bullet entry wound underneath Scott's left shoulder. After confirming that Scott had no weapons, Officer Draves rolled him over and observed a bullet exit wound above Scott's heart.
Officer Draves went to the front of building F. He found some casings on the ground and bullet strikes on the walls. He then returned to Scott and Comer. Other officers arrived about one minute later, and the first ambulance arrived three or four minutes later. A large crowd had gathered, and the ten or so total officers that had arrived worked to put tape around the crime scene.
Upon their arrival, paramedics cut Scott's clothes off and transported him by ambulance to Skyline Hospital. Other paramedics cut Comer's clothes off and transported him by ambulance to Vanderbilt Hospital. Newsom, still in the area, did not talk to police. Detective James Bledsoe of the Metro Nashville Police Department arrived on the scene at about 5:20 p.m. and began speaking to witnesses and supervising the area. After viewing Comer and Scott's bloody clothes in the field behind building F and learning which hospitals they had been transported to, Det. Bledsoe instructed another detective, Harold Burke, to go to Skyline Hospital and check on Scott. Detective Burke later called Det. Bledsoe to inform him that Scott had never regained consciousness and had died at the hospital. Detective Burke also informed Det. Bledsoe that he had spoken to Scott's father at Skyline, who gave him a note that said "The Shooter" and listed Marcus' phone number. Scott's father had apparently received that note from Newsom's stepfather. Burke also spoke to Newsom and learned of Marcus' potential involvement in the shooting. Newsom's mother then insisted that he stop talking to the police.
The next day, April 16, 2006, Det. Bledsoe and Det. Burke visited Comer at Vanderbilt Hospital. Although he was drugged with pain medication, Comer's nurses and both detectives concluded Comer was lucid enough to speak to them. Comer testified at trial that he was "hallucinating" at the time and that he had no memory of Det. Bledsoe visiting him on April 16. Based on Newsom's information, Det. Bledsoe asked Comer to look at a series of six photographs. Upon reaching Marcus' photograph, the third in the series, Det. Burke saw Comer nodding his head. Comer said, "I think that's him." Detective Bledsoe then showed Comer the remaining photographs, followed by the first, second, and third photographs again. Upon reaching the third photograph for the second time, Comer said, "that's the one with the black gun." Comer also described the shooting to Det. Bledsoe and said that the second shooter was either Marcus' brother or cousin.
Detective Bledsoe spoke to Comer again on April 20, 2006. On that day, he brought another series of six photographs, one of which depicted Elvin. When Comer reached Elvin's picture he said, "That might be him but his hair is different." Comer went through the rest of the series and started over, as he had with the first lineup. When he reached Elvin's picture the second time, he reiterated his non-positive identification, saying that the person depicted could have been the second shooter but that his hair was too different in the picture to say for sure; the shooter had braids, whereas the pictures showed men with short hair. Comer did, however, positively identify both Elvin and Marcus as the shooters at trial. Comer had never met Elvin or Marcus before the shooting.
Later that day, Det. Bledsoe talked to Carney, whose name he had received from Officer Draves. She gave her account of what had happened but was unable to identify any of the perpetrators using Det. Bledsoe's lineups. Carney, who was "terrified" during her testimony at trial, explained that she recognized Elvin as one of the men she saw running from the crime scene. Detective Bledsoe explained that he took into account Carney's claim that a third man, her neighbor Carlos, was involved in the shooting, but he disregarded him as a suspect after speaking to Newsom and Comer.
Detective Bledsoe did not speak to Newsom until April 26, 2006. Newsom explained that his mother had made him talk to a lawyer before speaking with the police. His lawyer recommended that he go to the police department and tell his story. During his conversation with Det. Bledsoe, Newsom positively identified both Elvin and Marcus using the same photographic lineups Comer had examined. Newsom had not spoken to Comer. Newsom also identified both Elvin and Marcus as the shooters at trial. He knew Marcus before the shooting because they had both worked at UPS for a short time; he had not known Elvin.
The State introduced records from Cingular Wireless showing calling activity from Marcus' cell phone. Marcus' cell called Shute's cell a number of times between 2:43 p.m. and 4:44 p.m. on April 15, 2006. The State also introduced records from Bellsouth showing calls made from the land line in Elvin's residence on that day. Elvin did not own a cell phone. Calls were made from Elvin's land line to Marcus' cell at 4:23 and 4:24 p.m. Another call was made from Elvin's land line to another number at 5:34 p.m. A call was made to Marcus' cell again at 8:07 p.m. No other calls were made on the line during that time.
Scott's autopsy revealed that he had been shot twice. One bullet entered his back and damaged his left lung and his heart; the other entered his abdomen and damaged his small bowel. These wounds caused his death and were not survivable, but they were also not necessarily immediately disabling. Marijuana was found in Scott's system, but the quantity or exact time of use could not be determined.
The police did not recover any gun connected to the shooting. The State also did not present any physical evidence directly linking either Elvin or Marcus to the shooting.
Elvin and Marcus both chose to put on proof. Elvin's first witness, John Graves, worked at B & R Auto Sales ("B & R") on April 15, 2006. He received and processed car payments as part of his duties. He testified that Elvin came to B & R around 5:00 p.m. on the day of the shooting to make a car payment. He remembered the time because he usually counted the day's payments around then in order to deliver them to the bank by 6:00 p.m. Graves introduced a receipt given to Elvin with Graves' signature on it; it did not contain Elvin's signature. The receipt was marked "4/15/06" and included Elvin's name, but it did not have a time stamp. Graves was not one hundred percent sure Elvin was the one who made the payment, but he believed it was him; he had no association with Elvin besides periodically receiving his car payments. He had never met Marcus. Graves did not see if Elvin had anyone with him. On cross-examination, Graves agreed with the State that, at a previous hearing, he had testified that Elvin came in "after 5:00" and before 6:00 p.m.
Elvin chose to testify and gave his account of the events of April 15, 2006. He woke up around 10:00 a.m. and did some household chores. He took a nap from 1:00 to 4:20 p.m. He then called Marcus, who said the family was planning to attend a church play that evening. Elvin could hear in Marcus' voice that something was wrong; Marcus then told Elvin he had given money to someone for marijuana and that he thought the person had stolen the money. Marcus had been waiting for an hour for the person to come back. Elvin told Marcus he was stupid and that he should leave.
After hanging up, Elvin told his girlfriend, Dianne Reid, to dress their baby and get ready to leave for B & R, which Elvin wanted to reach before its closing time at 5:00 p.m. Elvin, Reid, and their child left the house before 5:00 p.m.; Elvin believed they reached B & R about that time. Elvin and Reid next planned to stop at the beauty supply store. On their way there, Elvin stopped at a gas station to get gas and cigarettes; when there, he realized he did not have his driver's license. Reid also told Elvin she needed a refill for their child's bottle.
They therefore returned to their residence. Elvin went to the bathroom, made a call to a friend, and retrieved his driver's license and a bottle refill. He and Reid then drove to the beauty supply store, where they remained for forty-five to sixty minutes while Reid tried on wigs. They left the store at about 6:41 p.m.; Elvin could say so with specificity because they had been given a receipt that said 5:41 p.m., and Reid had commented that the time was an hour early. Elvin had lost the receipt, however, and therefore could not introduce it. Elvin and Reid next went to Wal-Mart for about forty-five minutes. They then got cigarettes and gas and returned home. They arrived "after 8:00." Elvin then called Marcus and asked him about the church play.
Elvin heard two days later that Marcus had a warrant out for his arrest. Elvin realized it was a murder warrant when he saw the story on the news. He was shocked. Elvin was arrested on April 28, 2006. He had never met Scott, Comer, or Newsom, and had nothing to do with the shooting.
Marcus chose not to testify but called two witnesses. The first, Det. Willie Middleton of the Metro Nashville Police Department, testified that he helped investigate the shooting. During the course of his duties, he spoke to Comer and Comer's mother. At about 5:30 p.m. on April 15, 2006, Comer's mother had given him the name of Carlos Hart as her son's possible assailant, the same Carlos with whom Carney had experienced problems in the past and who Det. Bledsoe chose not to pursue as a suspect.
Marcus' and Elvin's mother, Cornelia Logan, also testified about her recollection of the events of April 15, 2006. Marcus had been at home when she woke up. She went to church at about 10:00 a.m. with her youngest son, Ronald Ettienne, and her eight-year-old daughter, Leah. She returned at about 1:30 p.m. to find Marcus still in the house. Because she planned to attend a church play later that evening, she took a nap from 3:00 to 5:00 p.m. When she woke up, she yelled for everyone to get ready for the play but received no response. Marcus' cell record reflected that he called Logan's cell at 5:15 p.m.; he told Logan that he and Ettienne had gone outside. They then walked into the house through the front door.
Marcus was convicted and sentenced for the first degree murder of Scott and the attempted first degree murders of Comer and Newsom. Elvin was also convicted and sentenced for the attempted first degree murders of Comer and Newsom, as well as for one count of felony murder. They now appeal.
I. Sufficiency of the ...