Assigned on Briefs July 8, 2014
Appeal from the Criminal Court for Shelby County No. 09-07493 Chris Craft, Judge
Paul K. Guibao (on appeal) and Larry E. Copeland (at trial), Memphis, Tennessee, for the appellant, Kenneth Kirkwood.
Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Marriane Bell, 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
The crime from which this appeal arose occurred on the morning of April 28, 2009. According to the testimony of the victim, Arnedra Taylor, she left her home in Memphis that morning to go to the Family Dollar store to pick up some household items. Her husband was at work, and her three children were at school. Ms. Taylor had a small business selling candy and snacks from her home to neighborhood children, and was locally known as "the candy lady." At about 11:00 a.m., Ms. Taylor returned from Family Dollar and was sitting in her parked car in her driveway. Her car door was open while she talked on her cell phone with her sister's boyfriend.
As she sat there, she noticed a gold Chevy Trailblazer SUV pull up in front of her house. A man she did not recognize at the time, but later identified as Appellant, stepped out of the vehicle and walked across her front yard. She described the man to the jury as "a darker skin male, low haircut, wavy hair, and he had on a black dicky short set." She also testified that he was about five feet and five or six inches in height and had a medium build. As the man approached the driver's door of Ms. Taylor's car, he yelled back to the driver in the Trailblazer, "I'm going to see if they still sell soft drinks." Ms. Taylor thought that strange, because the man could have purchased a soda at a nearby store, and she usually only sold her candy and drinks to children, not adults.
The man walked directly up to the car door and asked Ms. Taylor if she still sold drinks. She said she did, but didn't have any at the moment. The man then pulled a black handgun out of his waistband, pointed it at Ms. Taylor, and said "you already know what this is." He asked who was inside the house, and Ms. Taylor replied, "no one." Appellant then said, "let's go in the house." Ms. Taylor was still on her cell phone, and she was repeating what Appellant was saying to the person on the other end, hoping he would realize that she was in danger. But her sister's boyfriend never stopped talking and never realized that something was wrong.
Appellant grabbed Ms. Taylor's key ring, grabbed her arm, and ordered her into the house. He took the phone out of her hand, turned it off, and put it in his pocket. At that point, she noticed the driver of the Trailblazer stepping out of the vehicle. Appellant did not know which of the keys opened the front door, so he gave them back to Ms. Taylor, holding his gun to her back as she unlocked the door. Ms. Taylor's bulldog was sleeping on the couch when the door was opened. Appellant asked what the dog was going to do. Ms. Taylor told him that the dog wouldn't bother them if they didn't bother him, and she sent the dog to a back room for its own safety.
Once inside, Appellant kept asking for money, and Ms. Taylor told him she didn't have any. Then she thought about a jar in her bedroom where she kept her "candy lady" money and she told him about it. He walked her to the bedroom, his gun still in her back. Following his orders, she retrieved the jar from the top shelf of her closet and placed it on a night stand. It contained about forty dollars in one dollar bills and "a lot of change." Appellant became agitated because of the small amount of money in the jar, and he said to Ms. Taylor, "oh bitch, you think I'm playing." She replied that if she had anything left to give they would have had it already so they could leave her home.
The driver of the Trailblazer was also in the house by that time. He was later charged as Appellant's co-defendant. Ms. Taylor described him as "kind of tall, lighter skin than the first male, big round hazel-colored eyes." He was wearing an oversize ball cap, dark color t-shirt and dark jeans. He carried a black automatic pistol in his left hand and his right hand was wrapped in a towel or t-shirt. Appellant nudged Ms. Taylor onto the bed and the two men walked around the bedroom, looking in drawers, on top of the dresser, and lifting the corners of the mattress. As they explored the bedroom, the second man kept reminding Appellant not to touch anything.
Ms. Taylor, who remained on the bed, then told the intruders to check a Planter's Peanut can on top of the television set in the bedroom "because sometimes my husband would keep a little money in there." The second man picked up the jar and carried it into the hallway. Ms. Taylor testified that her husband later told her that there had been about $200 in the can. Appellant kept insisting that he knew Ms. Taylor had more money, that she thought he was playing, and he said that he was going to shoot her in the face. He waved his gun in her face, and she pushed it aside, telling him that "I had three kids coming home from school in a couple of hours and they couldn't come home to find me shot over a few dollars."
This appeared to enrage Appellant, because he "cocked his gun back to get ready to shoot me but it jammed." Appellant tried to get the gun unjammed four or five times, but without success. He then said to the other intruder, "hey cuz, let me see yours." The two men switched guns. Appellant grabbed a decorative pillow from the bed, put it against Ms. Taylor's left hip and fired. The bullet entered Ms. Taylor's left hip, exited her left inner thigh, re-entered the right inner thigh and came out of the back of the right thigh. Ms. Taylor reported that the shot felt like fire, a painful and numbing tingling from the waist down. She subsequently suffered medical complications from the injury that left her disabled.
The men then left, taking the money with them. They also took Ms. Taylor's oldest son's laptop computer from the front room as they exited. After she heard the front door close, Ms. Taylor, bleeding heavily from her wounds, crawled across the bed to try to get to the bedroom window so she could get the tag number of the intruders' vehicle. But it was already gone by the time she reached the window. She then crawled to the living room to get her cordless phone, pulling herself by her arms, and she called 911.
A Fire Department EMT arrived shortly thereafter. He cut Ms. Taylor's jeans off, stopped the bleeding and began an IV line. When police officers arrived, Ms. Taylor told them what happened and described the two perpetrators. An ambulance followed, and transported the victim to the MED trauma center for further treatment. A crime scene officer from the Memphis Police Department arrived after the ambulance carrying the victim left. She took photos of the crime scene, some of which showed smears of blood on the blankets and the ...