Assigned on Briefs June 3, 2014
Appeal from the Criminal Court for Shelby County No. 12-02182 James Lammey, Jr., Judge
Stephen C. Bush, Shelby County Public Defender; Barry W. Kuhn, Assistant Shelby County Public Defender (on appeal); and Coleman Garrett (at trial), Memphis, Tennessee, for the appellant, Stevie Gibson.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Chris West and Sam Winnig, Assistant District Attorneys General, for the appellee, State of Tennessee.
Jeffrey S. Bivins, Sp. J., delivered the opinion of the Court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
JEFFREY S. BIVINS, SPECIAL JUDGE
Factual and Procedural Background
The Defendant was charged in May 2012 with the first degree premeditated murder and, alternatively, the first degree felony murder of the victim, Joshua Martin, committed in November 2011. The Defendant also was charged with the aggravated robbery of the victim. At the Defendant's ensuing jury trial, conducted in April 2013, the following proof was adduced:
Betty Zieba testified that the victim, Joshua Martin, was her son. At the time of his death, he worked as a department manager at Dillard's. The victim drove a black Camaro convertible. Zieba had been in the victim's car recently and knew that one of her debit cards was in its glove box. She also knew that the victim carried his driver's licenses,  his work keys, and his debit card in the car's console.
On cross-examination, Zieba stated that she was aware of her son's homosexuality. She had no knowledge of him arranging dates online.
James Dinkins testified that he lived in the apartment next door to the Defendant's. On November 7, 2011, Dinkins arrived home at about 11:15 p.m. At about 11:45 p.m., as he was watching television, Dinkins heard some "screaming." He opened his door to check on the commotion, and when he opened his door, he "heard the next door slam hard, boom. Just like that." Dinkins heard nothing further and did not call the police.
When Dinkins opened his door at about 7:00 a.m. the next morning, he saw the police and a body "laying at the door." He told the police about the noise that he had heard the night before.
Maurice Ingram, the Defendant's brother, testified that the Defendant called him at about 3:20 a.m. on November 8, 2011. The Defendant told him that something was wrong and asked him to come over. Ingram, who lived across the street from the Defendant, got dressed and walked over to the Defendant's apartment. The Defendant was standing outside and told Ingram that he had met someone online. This man came over to the Defendant's apartment, and they had sex. The man then asked to use the bathroom. After the man came out of the bathroom, the man walked into the kitchen, grabbed a knife, and tried to rob the Defendant. A struggle over the knife ensued, and the Defendant stabbed his visitor. Ingram asked the Defendant if the visitor was dead, and the Defendant stated that he did not know. Ingram called their father and sister and told them what had happened. After their father and sister came over, they called the police. Also at the apartment before the police arrived were Ingram's other brother, his mother, and his step-mother.
Ingram went into the apartment after he realized that his "three little cousins" were inside. Before the police arrived, Ingram and another of his brothers got the children and took them to Ingram's house. Ingram then returned to the Defendant's apartment. By that time, the police had arrived.
Ingram saw the victim's body when he went into the apartment. He stated that the body was on the floor, partially covered with a blanket. The body was unclothed. He did not move or otherwise disturb the body.
On cross-examination, Ingram described the Defendant as a "great big brother." He stated that the Defendant had been the choir director at church and had attended college for two or three years. Ingram knew that the Defendant was homosexual. He described the Defendant as "cool, calm, and collective [sic]." On the night in question, Ingram saw a cut in the palm of the Defendant's right hand. When he asked the Defendant about it, the Defendant told him that, "when he was tussling with [the victim] with the knife he grabbed it to keep from sticking him and they tussled over the knife and that's how he got the cut on his hand." Ingram also noticed that a vase of flowers had been knocked to the floor.
On re-direct examination, Ingram stated that he was not aware that the Defendant had a conviction for resisting official detention. He also stated that he was not aware of whether the Defendant used crack cocaine.
Kirsty Kirby testified that she was the store manager of the Dillard's where the victim had worked. She promoted him from a sales associate to a sales manager in 2008. She explained that the victim had prior management experience and a college degree. The victim's annual salary at the time of his death was $42, 000.
Kirby testified that the victim closed the store on the evening of November 7, 2011. She explained that the store closed at 9:00 p.m., and it generally took thirty minutes to close the store. Because the victim sometimes closed the store, he had a set of the store keys. Those keys were returned to her after the victim's death.
On cross-examination, Kirby stated that the victim had been the sales manager of the cosmetics department. Kirby did not socialize with the victim outside of the workplace.
Officer Gregory Patrick of the Memphis Police Department ("MPD") responded with Officer Benjamin Huff to the scene at about 4:30 a.m. November 8, 2011. In the front doorway of the Defendant's apartment, they found a body laying face down, "half covered in a sheet." After the Defendant told Officer Huff that he had stabbed the victim, Officer Patrick told Officer Huff to handcuff the Defendant and place him in their patrol car. They later took the Defendant to the police station.
Officer Benjamin Huff of the MPD testified that, while he and Officer Patrick were on the scene, the Defendant told him that he had stabbed the victim. After he took the Defendant into custody and was preparing his report, the Defendant told him that "it was self-defense." The Defendant told Officer Huff that he had met the victim online and that, after the victim came over, the victim tried to rob him.
Officer Huff described the scene: "the body was wrapped from the head to the mid-torso lying face down. The rest of it was nude. We walked through the apartment. Just a lot of blood just, I mean, all around the apartment." He added that the Defendant had been wearing clean clothes when they took him into custody.
On cross-examination, Officer Huff reviewed his report and then recalled that the Defendant had told him that he and the victim had had sex and that the victim then tried to rob him. He told Officer Huff that the victim had a knife, they struggled over it, and the Defendant took the knife from the victim and stabbed him. The Defendant kept telling Officer Huff that it was self-defense.
On re-direct examination, Officer Huff stated that he did not recall the Defendant having any injuries. On re-cross examination, Officer Huff stated that the Defendant did not advise them that he was injured.
Officer Charles Cathey of the MPD stated that he worked in the crime scene investigation division. He responded to the scene and took photographs. Some of the photographs admitted into evidence depicted the victim's body, wrapped in bedclothes, lying next to a large plastic bin. According to Officer Cathey, there was a white bag in the bin that appeared to have blood on it.
In the kitchen, Officer Cathey found a knife in the kitchen sink. The knife appeared to have blood on it. He also found some credit cards and a driver's license on a windowsill in the kitchen. One of the credit cards had the victim's name on it. In the kitchen trash can, he found clothes that appeared to have blood on them. On the kitchen table, he found a set of keys that had earlier been identified as the victim's work keys. He also found another set of keys, which belonged to the victim's car. In the bathroom, the shower curtain appeared to have blood on it.
Sergeant Joe Stark of the MPD testified that he searched the victim's car at the crime scene. The car was locked and he opened it with the keys that had been found on the Defendant's kitchen table. He opened the glove box and found it empty except for "a couple of pieces of paper." He found the car's owner's manual in the front passenger seat. He found this "kind of strange, kind of like somebody had been through the car." He did not notice any blood in the car.
Officer Anthony Barbarotto of the MPD testified that he reported to the crime scene on November 10, 2011, to assist in the collection of evidence. He collected from the Defendant's apartment a shipping box with a label addressed to the victim.
Lieutenant Anthony Mullins of the MPD testified as an expert in blood stain pattern analysis. He examined the crime scene, including bloody clothes that were found there. He testified that his observations and examinations led him to the following conclusions:
The conclusions that I reached at the overall crime scene is [sic] that it appears to me that the assault started in the kitchen and moved into the living room and into the entryway. I can't say for certain if the victim made it all the way to the front door to try and get out or not. There is blood evidence there that suggests that it came from a bleeding source in the entryway. Those big round stains, they don't necessarily come from holding something with blood on it. It comes from a source that's resupplying, a bleeding source. There's transfer blood stains on the light switch and doorknob of that door but that could come from either the victim trying to get out with blood on his hands or a suspect moving around with blood on his hands or her hands.
Regardless, all the circles and squares and all you saw [in photographs depicting bloodstains he marked at the crime scene] are indications that an assault took place there and you can see a couple of different areas so there's movement and the victim is up and moving when the assaults occur. That's why you have them higher on the wall and lower on the wall. If the victim was on the floor and being beaten or stabbed repeatedly you would see that type of thing just above the floor and going upward from there. But the ones that we showed you are going downward from an upper point.
And most of the stains were 4 to 5 feet up on the wall. So that seems to me the victim was moving through the living room and being assaulted as he's moving. Was he trying to escape? I can't say. Was he trying to go get help or get a weapon? I can't say what he was doing. I just can tell you that it appears the victim is moving through the apartment and being assaulted as he's moving but he never – it does not appear he ever got out of the apartment.
As to the bloody pants that were found at the scene, Lt. Mullins testified that blood stains indicated that someone's fingers had gone into the back pockets. Also, some of the victim's driver's licenses and credit/debit cards "had what appeared to be bloody thumbprints or fingerprints or transfers." He added that the pants had been found in the kitchen at some distance from the victim.
On cross-examination, Lt. Mullins stated that he did not know if the victim was wearing the pants at the time someone reached into the pockets or if it was the victim or someone else who reached into the pockets. He testified, "The thing I can tell you is that somebody with bloody, at least bloody fingers, went into those pockets. Now what they did and what they found, that I can't tell you." He also acknowledged that he did not know if the victim's driver's licenses and credit/debit cards had been in the pockets or if they had been picked up with bloody fingers from another location. Lt. Mullins also acknowledged that people other than police officers had been in the apartment before the police arrived and could have been responsible for some of the transfer bloodstains. Moreover, the transfer bloodstains he found at the entryway indicated that someone had left the apartment after the stabbing took place.
On re-direct examination, Lt. Mullins stated that there was evidence that blood on the scene had ...