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State v. McClain

Court of Criminal Appeals of Tennessee, Jackson

September 24, 2014

STATE OF TENNESSEE
v.
CHARLES McCLAIN, LAVINO HORNE, and LETERPA MOSLEY

Session March 5, 2014

Direct Appeal from the Criminal Court for Shelby County No. 10-00509 James C. Beasley, Jr., Judge

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant Charles McCain; Mark Mesler, Memphis, Tennessee, for the appellant, Lavino Horne; and Paul J. Springer, Memphis, Tennessee, for the appellant, Leterpa Mosley.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; Muriel Malone, Assistant District Attorney General, for the appellee, the State of Tennessee.

Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Roger A. Page, JJ., joined.

OPINION

THOMAS T. WOODALL, JUDGE

Facts

On November 11, 2009, Tederrial Hancock, a student at the University of Memphis, was shot inside his car outside the Hollywood Public Library. Quintel Stubbs, who was also charged in the indictment, testified for the State in hopes of receiving favorable consideration as to his pending charges for his testimony. Stubbs testified that he had been coming from the Hollywood Public Library earlier that day when he saw Charles McClain. McClain told Stubbs that he and Leterpa "Terpa" Mosley were planning to rob Hancock because, McClain said, Hancock had robbed one of McClain's friends. McClain told Stubbs that Hancock "kept a whole lot of money on him." McClain told Stubbs that Mosley was going to rob Hancock, and McClain was going to kill him. McClain showed Stubbs the gun he was carrying. McClain and Stubbs exchanged phone numbers, and Stubbs told McClain "to be careful."

Later that day, McClain called Stubbs and told him to meet him and Mosley. McClain said that Hancock would be at the library, and they were going to rob him. They went to the area of the library where McClain expected Hancock to be, but Hancock was not there. Stubbs then went home and fell asleep. When he woke up, he called Lavino "Vino" Horne, and they went to "Hollywood." At around 8:30 p.m., McClain called Stubbs again and told Stubbs and Horne to meet McClain and Mosley at the library.

Stubbs and Horne met up with McClain and Mosley across the street from the library. McClain told them that the Hancock was at the library, but he "couldn't go up there because if [Hancock saw McClain's] face he's going to know what's up." McClain gave the gun to Horne. Stubbs, Horne, and Mosley then proceeded to walk towards the library. They did not see Hancock's car at the library, so Stubbs texted McClain. McClain texted Stubbs that Hancock's car was on the other side of the library. Stubbs, Horne, and Mosley walked around the library. They approached Hancock's car and spoke to him. Mosley asked to use Hancock's phone. Stubbs testified that he walked away, and he heard gunshots. He looked back and saw Horne and Mosley running away from the car, and he began to run. A video surveillance recording from the library was presented at trial, in which Stubbs identified Horne walking behind him and Mosley towards the victim's car.

Russell Potts was living in an apartment complex across from the library. On November 11, 2009, at around 9:00 p.m., he was watching television with his mother when he heard several gunshots. He looked to see what was happening, and he saw a car with its lights on and two men running across the parking lot. He could not see the men's faces.

After the shooting, Stubbs, Mosley, and Horne met up with McClain on Oakwood. Horne returned the gun to McClain, and Mosley gave McClain the victim's cell phone. Following an investigation, the four men were arrested. Stubbs testified that he initially told police that Mosley was the shooter because he "ain't want to put it on Vino [Horne]" because they were "like brothers." Stubbs also told investigators that Mosley had admitted to shooting the victim. Investigators showed Stubbs the library surveillance video, and Stubbs saw in the video that Mosley was the last person running away from the victim's car.

During a subsequent interview with the police, Stubbs and Horne were in adjacent interview rooms. Stubbs told Horne through the wall that they needed "to tell [the police] the truth, " and Horne responded, "no way, cuz, no way in hell." Stubbs did not tell police that the four men met up on Oakwood after the shooting. He told police that he ran to his home. He told police that Mosley was wearing a black shirt. At trial, Stubbs identified Mosley in the video as wearing a white shirt. Stubbs wrote a letter to Mosley in jail apologizing for "putting him as the shooter."

On cross-examination, Stubbs acknowledged that cell phone records indicated that he called Mosley at 8:51 p.m. and 8:53 p.m. Stubbs called Mosley again at 9:14 p.m. and 9:19 p.m. When asked why he would have called Mosley if he was standing beside him, Stubbs responded, "I can't answer that. I don't know. He must have split up and that's when he went to the car. I probably called him. No telling what I called him for."

Officer Stephen Moore of the Memphis Police Department responded to the scene at approximately 9:00 p.m. He found Hancock deceased in the driver's seat of his car and observed several gunshot wounds to the victim. Forensic analysis concluded that Hancock had been shot by someone using a .380 caliber handgun. An autopsy revealed that Hancock had been shot seven times. The medical examiner estimated that he had been shot from intermediate range, which he explained is between six inches and four feet.

Kandace Turley and Tederrial Hancock had a son together. At the time of the shooting, Hancock had custody of their son. Ms. Turley had been dating McClain, and they were living at McClain's grandmother's house. When Hancock was awarded custody of Ms. Turley's son in October, 2009, she moved in with Hancock's mother to be closer to her son and "[t]o move away from Charles [McClain]."

On the day of the shooting, Ms. Turley saw Hancock (the victim) at a hospital where Hancock's mother was being treated after she suffered a stroke. Hancock asked Ms. Turley about a cell phone he had given to her. Hancock wanted to sell the phone to a friend. Ms. Turley had given the cell phone to McClain. McClain told Ms. Turley that he had texted Hancock that day and posed as someone named "Diamond." Justin Freeman, who went to the hospital with Hancock on the day of the shooting to visit Hancock's mother, intended to buy the cell phone. He testified that Hancock received a text from a female named "Diamond." Freeman and Hancock left the hospital together and went to the library. Hancock left the library at around 8:00 p.m. and walked back to his room on campus.

Sergeant Joe Stark of the Memphis Police Department was the lead investigator in the case. He interviewed Leterpa Mosley. Mosley told Sergeant Stark that he had been shopping at Best Buy at 9:00 p.m. on the date of the shooting. Sergeant Stark and Sergeant J.T. Max left Mosley in the interview room to gather additional information about the shooting. They returned and confronted Mosley with the information, and Mosley admitted that he was present when the victim was killed.

Lieutenant Eric Freeman of the Memphis Police Department took a statement from Lavino Horne on November 18, 2009. Horne told Lieutenant Freeman that he was present when the victim was killed but that he was not the shooter. Horne stated that he was walking away from the victim's car when the victim was shot three to five ...


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