Assigned on Briefs July 8, 2014
Appeal from the Criminal Court for Shelby County No. 12-02348 Mark Ward, Judge
Lance R. Chism, Memphis, Tennessee (on appeal), Arthur E. Horne and Kendra Tidwell, Memphis, Tennessee (at trial) for the appellant, Willie Duncan.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Amy P. Weirich, District Attorney General; Meghan Fowler, Assistant District Attorney General; and Betsy Wiseman, Assistant District Attorney General, for the appellee, State of Tennessee.
Jerry L. Smith, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.
JERRY L. SMITH, JUDGE
On May 8, 2012, a Shelby County grand jury indicted Appellant, along with co-defendants Jamar Cobbins and Calvion Morrison, for especially aggravated kidnapping with a deadly weapon, especially aggravated robbery, aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony. Appellant was tried by a jury in August of 2013.
At trial, Roderick Gladney testified that on the evening of December 6, 2011, he met his friend Nycholas Shields at a hotel room at the Governor's Inn rented by Mr. Shields. The two men, along with a third person named Juan, began smoking marijuana. Sometime that night, Appellant called Mr. Shields' phone, which Mr. Gladney answered. Appellant asked to buy some marijuana. Mr. Gladney met Appellant in the hallway of the hotel and sold him approximately thirty dollars worth of "couch" marijuana, which is a high grade of marijuana. Mr. Gladney testified that he met Appellant through Mr. Shields and had known him for a few months.
After making the sale, Mr. Gladney returned to the hotel room and fell asleep. Around 6:00 or 7:00 the next morning, Mr. Gladney received a phone call from Mr. Cobbins. Mr. Gladney knew Mr. Cobbins because they had attended the same high school. Mr. Cobbins told Mr. Gladney that Appellant had given him Mr. Gladney's phone number. Mr. Cobbins wanted to buy some marijuana. Mr. Gladney met Mr. Cobbins in the hallway of the hotel. Then Appellant and another young man entered the hallway through a back door of the hotel. Appellant was wearing a mask and carrying a pistol. Mr. Cobbins, Appellant, and the other young man then forced Mr. Gladney back into the hotel room.
Upon entering the hotel room, Appellant pointed the gun at Mr. Shields and demanded money and drugs. Mr. Shields retrieved money from his pockets and threw it on the floor. The young man picked the money up off of the floor. Appellant shot Mr. Gladney in the stomach. After being shot, Mr. Gladney threw money out of his pocket. The young man retrieved the money from the floor, then the three perpetrators ran from the room. Mr. Gladney testified that the young man was laughing as the perpetrators ran. Juan fled the room before the police or paramedics arrived, and Mr. Gladney has not heard from him since.
Mr. Gladney was taken to the hospital by paramedics. The bullet pierced his bladder and he had to receive forty-three staples in his stomach, leaving an extensive scar. Mr. Gladney remained in the hospital for seven days. On December 8, 2011, while still in the hospital, Mr. Gladney identified Appellant in a police photo spread. Mr. Gladney testified at trial that he was able to identify Appellant by the sound of his voice.
Mr. Shields testified that on December 6, 2011, he and a friend named Juan rented a room at the Governor's Inn. Around 8:00 that evening, Mr. Gladney arrived. The three men smoked marijuana and shot dice inside the hotel room. At some point, Mr. Gladney stepped outside to sell marijuana to somebody. At approximately 1:00 a.m. on December 7th, Mr. Shields fell asleep. He was awakened around 6:00 a.m. when he heard Mr. Gladney's phone ringing and Mr. Gladney stepped out of the room. Mr. Shields testified that he heard arguing and commotion in the hallway. Mr. Gladney entered the room, screaming that someone was trying to rob him. Then three men entered the hotel, two of whom Mr. Shields recognized as Mr. Cobbins and Mr. Morris. The third man was holding a pistol and wearing a mask. The gunman pointed the pistol at Mr. Shields and demanded money and drugs. Mr. Shields threw approximately one hundred dollars toward the gunman.
Mr. Shields testified that the gunman then pointed the pistol at Mr. Gladney while Mr. Cobbins and Mr. Morris rummaged through Mr. Gladney's pockets. The gunman shot Mr. Gladney in the stomach and Mr. Gladney fell to the ground. The perpetrators ran from the room and fled the scene in a white car. Mr. Morris was laughing as they ran. Mr. Shields called 911. Juan fled the scene with the rest of the marijuana. When the police arrived, Mr. Shields was given a misdemeanor citation for possession of drug paraphernalia because of a digital scale found in his possession.
Mr. Shields testified that after the perpetrators fled the scene, Mr. Gladney told Mr. Shields that the gunman was the person who had called his phone earlier. Mr. Shields went through the phone and saw Appellant's phone number. Mr. Shields then realized that Appellant was the gunman. Mr. Shields identified a picture of Appellant that the police showed him on the afternoon of December 7, 2011.
Jonathan Hall testified that during the early morning hours of December 7, 2011, he was sitting in his car outside of the back door of the Governor's Inn. He saw three men enter the back door of the hotel. After about five minutes, they exited out of the same back door. The police took a statement from Mr. Hall later that same morning, which Mr. Hall signed. While testifying, Mr. Hall stated that he did not recall telling the police that two men wearing black hoods walked into the hotel and then three men, one of whom was carrying a gray handgun, ran out of the hotel. The statement was entered into evidence, but Mr. Hall testified that the words in the statement were not his words.
Officer Kenneth Walcott of the Memphis Police Department testified that he responded to a disturbance call at the Governor's Inn at 8:25 a.m. on December 7, 2011. When he arrived, Mr. Hall told Officer Walcott that he saw two black men run into the hotel and three run out. Mr. Hall directed Officer Walcott to the room where the shooting had occurred. Officer Walcott knocked on the door, and Mr. Shields answered. The room and hallway had a strong smell of marijuana. Officer Walcott saw Mr. Gladney lying on the bed moaning. Officer Walcott lifted Mr. Gladney's shirt, determined that he had been shot in the stomach, and called for an ambulance.
Sergeant Andre Pruitt arrived at the Governor's Inn and took a type-written statement from Mr. Hall. Mr. Hall told Sergeant Pruitt that he assumed the three men were involved in a robbery because he saw them running away. Sergeant Pruitt testified that Mr. Hall signed the statement and that it was an accurate depiction of Mr. Hall's version of events.
Sergeant Glenn Barber was assigned as the case coordinator. Sergeant Barber took statements from both Mr. Shields and Mr. Gladney. Neither victim ever mentioned Juan. Sergeant Barber testified that Mr. Shields positively identified a photograph of Appellant, and Mr. Gladney identified Appellant in a photographic lineup.
On the afternoon of December 7, 2011, Appellant was arrested and taken to the police station. Sergeant Barber and Sergeant Pruitt advised Appellant of his Miranda rights, and Appellant signed a waiver of rights form. Appellant indicated that he was not under the influence of any drugs. Appellant stated that his mother drove him to the hotel around 3:00 in the morning and he bought drugs. Appellant stated that someone called him and asked where they could buy some marijuana. Two people then picked up Appellant and drove him to the hotel to purchase more marijuana. Appellant stated that he never went inside the hotel room and that he did not shoot anyone. Sergeant Barber testified that he did not reduce this statement to writing because of several inconsistencies in the story.
On December 9, 2011, Sergeant Barber questioned Appellant a second time. Appellant was again advised of his Miranda rights and signed a waiver of rights form. Appellant gave a statement admitting to his participation in the robbery. Appellant stated that he called "Nick's cousin" in order to buy some marijuana. Around 3:00 in the morning, he asked his mom for a ride to the hotel. He met Mr. Gladney in the hallway and purchased a gram of marijuana. He then went home, smoked some marijuana, and fell asleep. He then got a call from a man known as Kitchen Chris, later identified as Chris Crawford, who was asking where he could buy some marijuana. Appellant got into a white Impala with Mr. Crawford, Mr. Morris, and Mr. Cobbins. While driving to the hotel, Mr. Crawford stated, "I ain't buying shit, let's go take it." Appellant was concerned that the victims might identify him since they knew him and had just seen him. Mr. Cobbins offered some stockings from the arm rest of the car. Appellant had a gun that Mr. Crawford had given him.
Appellant stated that Mr. Cobbins entered through the back door of the hotel to meet Mr. Gladney in the hallway. Appellant saw Mr. Cobbins hit Mr. Gladney, then he, Mr. Morris, and Mr. Crawford ran in through the back door. Appellant admitted pointing a gun at Mr. Gladney, then Mr. Cobbins pushed him into the room. Mr. Shields woke up, saw the gun, and started screaming and throwing his money. Appellant claimed that he set the gun down while he was picking some marijuana up off of the floor. Mr. Gladney charged him as he went to pick the gun back up, and the gun went off. Then Appellant and the others drove off and split up the money and marijuana that had been taken. Appellant received forty dollars and a gram of marijuana. Appellant told Sergeant Barber that he did not want to participate in the robbery, that he did not mean for anyone to get hurt, and that he did not mean to shoot Mr. Gladney.
At the conclusion of the trial, the jury found Appellant guilty of especially aggravated kidnapping, especially aggravated robbery, aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony.
On September 10, 2013, the trial court held a sentencing hearing. Appellant testified that he used illegal drugs daily from the time he was fourteen until he was arrested on the present offenses. Appellant claimed that the statement to the police from December 9th "wasn't really [his] statement, " and that he did not rob or shoot anyone. Appellant admitted he was present in the hotel room when Mr. Gladney was shot. Appellant claimed that he was just purchasing marijuana and that he was not the shooter.
The presentence report indicates that Appellant dropped out of high school after repeating the eleventh grade. Appellant had several juvenile arrests for arson, trespass, gambling, possession of a weapon, and assault; however, Appellant did not have any delinquency adjudications. Appellant reported that he first smoked marijuana at age fourteen and continued to smoke it on a daily basis until his arrest in December, 2011. Appellant reported using Lortab and Xanax daily since the age of sixteen and drinking alcohol occasionally since eighteen. Appellant completed a Drug and Alcohol program and a Life Skills program while awaiting trial on the present charges.
The trial court sentenced Appellant to twenty-three years for especially aggravated kidnapping, twenty-three years for especially aggravated robbery, ten years for aggravated robbery, five years for aggravated burglary, and six years for employing a firearm during the commission of a dangerous felony. The trial court ordered that the sentences for especially aggravated kidnapping and especially aggravated robbery run concurrent to each other but consecutive to the sentences for aggravated robbery and aggravated burglary, which would also run concurrent to each other. By statute, the sentence for employing a firearm during the commission of a dangerous felony is required to be served consecutively to the sentence for the underlying felony. Appellant was sentenced to a total effective sentence of thirty-nine years.
On October 4, 2013, Appellant filed a timely motion for a new trial. On October 8, 2013, a hearing was held and the trial court entered an order denying the motion. Appellant filed a timely notice of appeal on November 1, 2013.
On appeal, Appellant raises several issues: 1) the indictment for the charge of employing a firearm during the commission of a dangerous felony is defective for failing to name the underlying felony; 2) the jury instructions on the charge of employing a firearm during the commission of a dangerous felony were improper; 3) the evidence presented at trial was insufficient to support the convictions; 4) a statement about Appellant's juvenile record requires a new trial under plain error review; 5) the trial court abused its discretion by imposing excessive sentences; and 6) the trial court abused its discretion by imposing partially consecutive sentences. We will address each issue in turn.
I. Employing a Firearm During the Commission of a Dangerous Felony
Appellant raises two issues with regard to the charge of employing a firearm during the commission of a dangerous felony. First, he alleges that the indictment failed to name the predicate felony and is thereby void. Second, he alleges that the trial judge improperly instructed the jury that it could consider especially aggravated kidnapping with a deadly weapon as one of two underlying felonies to support a conviction. The ...