Assigned on Briefs May 6, 2014
Appeal from the Criminal Court for Shelby County No. 01-13118 Paula Skahan, Judge
James E. Thomas, Memphis, Tennessee (on appeal); and James Arnold, Germantown, Tennessee (at hearing), for the appellant, Tyree Robinson.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Jennifer Morris, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Joseph M. Tipton, P.J., and Camille R. McMullen, J., joined.
ALAN E. GLENN, JUDGE
This court's opinion on the petitioner's second direct appeal provides the following summary of the evidence introduced at his trial:
This case arises out of the April 2001 murder of the victim, O'Neil Cornish, for which the [petitioner] was indicted and convicted of first degree premeditated murder, felony murder, and especially aggravated robbery. On direct appeal, this court reversed the judgments of the trial court and remanded for a new trial, concluding that the trial court erred in failing to instruct the jury, in response to its question, that accomplices cannot corroborate each other. State v. Robinson, 239 S.W.3d 211 (Tenn. Crim. App. 2006). The second trial was conducted from January 28 to February 1, 2008.
Sergeant Eric Freeman with the Memphis Police Department testified that he was working as a crime scene officer on April 10, 2001 and responded to a "D O A unknown" call near Shepherds Tree Street and Kilarney Avenue. The scene was a dead-end street that had been cleared for development, but was being used as a dumping ground. At the scene, he found a young black male with a gunshot wound lying in the street and a large amount of blood around the body. He also found several .380 shell casings, a bullet fragment, loose tobacco, a cigar tip, blood-stained tissue paper, a sales receipt, a troweling or cutting wheel, and a Waffle House identification card with the name Jennifer. Sergeant Freeman noted that the victim had twenty-five dollars in his sock.
Percy Alexander, retired battalion chief with the Memphis Fire Department, testified that he was driving around searching for his lost dog on the morning of April 10, 2001, in the area of Shepherds Tree Street and Kilarney Avenue. As he looked into a cove, Alexander saw the motionless victim lying on the ground, got out of his car, and approached the victim. He saw a stream of blood and noticed that the victim had a wound to his head and was deceased. Alexander returned to his car, called 911, and waited for the police to arrive.
Seku Teamer, the best friend of the victim, testified that he and the victim were at Wing City, a nightclub, in the early morning hours of April 10, 2001, when the victim received a phone call. The voice on the phone appeared to be that of a male. The two left the nightclub approximately fifteen minutes after the victim received the phone call. The victim dropped Teamer off at the home they shared, saying he was going to the Loft Apartments "to have intercourse with Takisha Brown and he was going to join in with [the petitioner]." The victim then drove away in his Blazer with relatively new, flashy rims.
Ilyas Morris, also known as "Big E, " testified that in April 2001 he lived with the [petitioner], Cortney Perry,  Takisha Brown, Terrance Scott, and Willie Rosser at the Loft Apartments. On April 10, 2001, Morris was trying to sleep downstairs in the apartment when he heard the [petitioner], Brown, and Perry talking upstairs, but he could not recall the nature of their conversation. He then heard the three leave the apartment.
Morris said that he subsequently was awakened by Mieko Saulsberry, one of the [petitioner]'s friends, who wanted Morris to go with him to meet the [petitioner] at Club on the Green, another apartment complex. The two drove Morris' van to Club on the Green, but the [petitioner] was not there so they waited. As they were getting ready to leave, a green truck with custom rims pulled in flashing its lights. Morris saw that the [petitioner] was driving the truck and that Brown and Perry were with him. Morris had never seen the truck before and knew it did not belong to the [petitioner]. Everyone got out of the truck, and the [petitioner] removed all of his clothes except his underwear. Morris looked inside the truck and saw "[a] lot" of blood on the driver's seat. He also saw a VCR on the passenger's side, which he took and put in his van.
Morris testified that they all left in his van and went back to the Loft Apartments to look for a floor jack to remove the rims from the green truck, but they were unable to find one. The [petitioner] then directed Morris to where the victim's body was located to make sure the victim was dead. When they got to the body, the [petitioner] told Perry to shoot the victim again. Perry grabbed a gun off the floorboard of Morris' van, got out, and shot the victim two to four times. Morris said the gun did not belong to him and described it as a small silver .380. There was also another gun on the floorboard – a larger .380 with the safety missing, which Morris knew belonged to the [petitioner]. After Perry shot the victim, the group returned to the Loft Apartments to look again for a floor jack.
Morris recalled that he drove the group to a gas station, and they purchased a gallon of gas in a Jungle Juice container. They drove back to the victim's truck at Club on the Green, and Saulsberry and Perry threw the gas on the truck and burned it. Saulsberry received second degree burns in the process. After burning the truck, everyone got back into the van and returned to the Loft Apartments. Morris said that approximately a week later, the police questioned him, the [petitioner], and Perry about Saulsberry's burns. Morris told the police that he did not know anything about the burns. Morris said he met the [petitioner] and Perry afterwards to dispose of the guns and drove them to the [petitioner]'s mother's house where the [petitioner] retrieved the guns. Morris then drove the [petitioner] and Perry to Coro Lake where they threw the guns into the water. Morris was later arrested and told the police everything that had happened and helped them locate the guns. Morris said he pled guilty to accessory after the fact due to his involvement.
On cross-examination, Morris acknowledged that when he was arrested, he was informed that he could be charged with murder. He admitted that in his statement to police approximately two weeks after the murder, he said it was the [petitioner], not Saulsberry, who awakened him and told him to go to Club on the Green. He testified that he could not remember who it was that actually woke him that night. Morris acknowledged that he overheard the [petitioner], Brown, and Perry talking about robbing the victim, but said he did not think the [petitioner] was serious. He admitted that by picking the [petitioner] up afterwards, he was, in effect, acting as the getaway driver. On redirect, Morris said that he was the only one in the household who had a vehicle, and he drove where the [petitioner] told him.
Mieko Saulsberry testified that he, Cortney Perry, Ilyas Morris, and others lived with the [petitioner] at the Loft Apartments in April 2001. At the time, the [petitioner] had an entertainment company called "In Town Entertainment, " and Saulsberry worked security and played instruments for him. During the early morning hours of April 10, 2001, Saulsberry was asleep in the [petitioner]'s room when the [petitioner] woke him and told him to get in Morris' van. Morris, Perry, and Brown were already in the van, and they drove to a gas station and purchased gas in a milk or Jungle Juice jug. Saulsberry stated that he asked the [petitioner] what was happening, and the [petitioner] told him the less he knew the better. They then drove to the location of the victim's body.
Saulsberry said that when they arrived at the victim's body, the [petitioner] told Perry to get out of the van. Perry got out and shot the victim twice. They then drove to Club on the Green Apartments and proceeded to the back of the complex where a truck with "high profile . . . chrome rims" was parked. The [petitioner], Perry, and Brown "wip[ed] down the truck, " tried to remove the rims and radio, and poured gasoline on the truck. Because they had spilled gasoline on themselves, the [petitioner] asked Saulsberry to light the fire, which he did. The truck exploded, and Saulsberry was severely burned. Saulsberry's girlfriend eventually took him to the hospital where he was questioned by the police and told them a fabricated story. However, he later told the police the truth and pled guilty to the offense of burning personal property.
Takisha Brown testified that she was dating Cortney Perry's brother, Corey, at the time of the murder. At that time, Cortney, Corey, Mieko Saulsberry, and the [petitioner] lived together at the Loft Apartments, and Ilyas Morris stayed there occasionally. Brown said that she sometimes stayed there with Corey but actually lived with her mother. On the evening of April 9 or 10, Brown returned to the Loft Apartments after seeing a movie with a friend and recalled that the [petitioner], Cortney, Corey, Morris, and possibly Saulsberry were there when she arrived. The [petitioner] and Cortney were discussing "[w]hat was getting ready to happen, " and the [petitioner] asked Brown if she would tell the victim that she would have sex with him in an effort to get him to drive over quickly so the [petitioner] could rob him. Brown agreed because she had been using drugs all day and was not "thinking."
Brown said that the [petitioner] called the victim and that she told the victim she would go along with him and the [petitioner]. When the victim arrived, Brown, Cortney Perry, and the [petitioner] went outside and got into the victim's vehicle. The victim was driving, Perry was in the passenger's seat, Brown was seated behind Perry, and the [petitioner] was seated behind the victim. They went to a gas station to get a cigar to fill with marijuana, then drove to an undeveloped area to smoke the marijuana. While they smoked, the victim started talking about his .380 handgun and pulled it out of the glovebox to show the [petitioner].
Brown recalled that the [petitioner] asked to see the victim's gun and, after denying that he owned a gun, pulled out his gun and shot the victim. The [petitioner] got out and opened the driver's door, causing the victim to fall out on the ground. The [petitioner] then got in the driver's seat and drove to the Club on the Green Apartments where Saulsberry and Morris were waiting. Brown got into Morris' van, while the men donned gloves and searched the victim's truck. Brown saw the [petitioner] take off his clothes that were covered in blood, and everyone got into Morris' van.
Brown testified that the [petitioner] directed Morris to drive back to the victim's body. The [petitioner] tried to shoot the victim, but his gun jammed so he told Perry to shoot the victim with another gun. They drove back to the Loft Apartments, and she went inside and told Corey what had happened. The [petitioner], Perry, Saulsberry, and Morris left again, but returned later with Saulsberry screaming that he had ...