Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs September 9, 2014
Appeal from the Criminal Court for Davidson County No. CC 4610 Monte Watkins, Judge
Dawn Deaner, District Public Defender; Emma Rae Tennent (on appeal), Aimee Solway and Dave Kieley (at trial), Assistant Public Defenders, Nashville, Tennessee, for the appellant, Robert Brian King.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Hugh Ammerman, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
On November 27, 2012, Officer Corey Adkerson of the Metropolitan Nashville ("Metro") Police Department was dispatched to Sir Pizza in Bellevue on a "fight call." When he arrived on the scene he made contact with John Michael Shaver, the victim. Officer Adkerson observed the victim had "injuries about his neck and face." According to several witnesses on the scene, the perpetrators left the area before the authorities arrived. The witnesses on the scene spoke with Officer Adkerson. Their stories "coincided."
Several days later, Detective Steven Bowers of the Metro Police Department interviewed the victim. As a result of that interview, two suspects were identified: Damion Whitehead and Defendant. A warrant was issued for Defendant's arrest for assault.
At trial, the victim testified that he and his girlfriend, Amanda Seekell, went to Sir Pizza on Tuesday, November 27, 2012, to take advantage of the buy one pizza, get one pizza free special. The two lived together, along with Amanda's younger sister, Ericha Seekell.
The trio sat in a booth near the ordering counter to wait on their dinner. The victim saw Ryan Shamsaie and Travis Smith enter the restaurant. The victim was acquainted with both men and carried on a short conversation with them while waiting on the pizzas. Both Mr. Shamsaie and Mr. Smith were sitting at a table with Mr. Smith's girlfriend, Michelle Wilson, Defendant, and Mr. Whitehead. When the victim returned to his table, he noticed both Defendant and Mr. Whitehead were facing him. The victim described that the men were looking at him and that he felt uncomfortable, like something was not quite right. The victim noticed that Mr. Whitehead kept looking at him and "rubbing his hands" together.
When the victim, Ericha, and Amanda were getting ready to leave the restaurant, the victim saw Mr. Whitehead and Defendant go outside. Around that same time, Melissa Edwards entered the restaurant. Ms. Edwards worked with Amanda. When she approached their table, the three women started talking about "hair." The victim excused himself to the restroom. When he returned to the table, he received a telephone call. He stepped outside to take the call while Amanda and Ericha continued to talk to Ms. Edwards.
According to the victim, "[Mr. Whitehead] struck [him] in the back of the head" as he walked out the door of the restaurant. The victim tried to put his hand in his jacket but was hit again. The victim saw Defendant run out the door of the restaurant, then he blacked out. The victim "woke up to [Mr. Whitehead] kicking [him] in the face and abdomen." According to the victim, Defendant also kicked him in the face. The victim was somehow able to "jump" up to his feet during the attack, resulting in both Mr. Whitehead and Defendant retreating to Defendant's green Chevrolet Silverado. The victim asked Mr. Whitehead why he was attacked and Mr. Whitehead claimed it was, "for calling me a bitch in middle school."
Prior to that evening, Amanda did not know Defendant but was acquainted with Mr. Whitehead, having met him at a party earlier that year in Bellevue. She met Mr. Whitehead at a time when she and the victim were broken up. Mr. Whitehead wanted her telephone number. She gave him a false number. Mr. Whitehead then sent Amanda a Facebook message. She eventually gave Mr. Whitehead her real telephone number and the two talked and texted several times. According to Amanda, they did not date each other.
Amanda recalled that on the night of the incident, as the victim exited the restaurant, "before the door could even close [Defendant] and [Mr. Whitehead] went outside." She saw Mr. Whitehead's fist go up and the victim fall to the ground. Amanda ran outside during the attack. She described the scene as follows: "[Mr. Whitehead] was behind and [Defendant] was in front. And they were both beating and kicking." When she got outside, she somehow managed to push the men off of the victim briefly before Defendant came back and kicked the victim "really hard."
Ms. Edwards recalled while she and Amanda were talking, Amanda exclaimed, "Oh my God" before running out the front door of the restaurant. Ms. Edwards followed Amanda outside and saw the victim on the ground with both Mr. Whitehead and Defendant kicking him. Mr. Shamsaie, Mr. Smith, and Ms. Wilson emerged from the restaurant after the attack.
Amanda called 911. During the call she reported that there was only one assailant. At trial, she explained that she was "not sure why [she] didn't say both [men] were involved in the attack." When the call to 911 was made, Defendant and Mr. Whitehead fled in Defendant's truck. Amanda called 911 again forty minutes later because authorities had not arrived.
Prior to trial, Mr. Whitehead pled guilty to assault. Part of the agreement with the State required him to testify in a hearing that was held involving Defendant. This hearing took place prior to the trial. At trial, Mr. Whitehead insisted that he alone was responsible for the assault on the victim. He claimed that he attacked the victim because he was "talking trash" and calling him both the "N word" and the "B word." He acknowledged, however, that Defendant was his best friend. Mr. Whitehead admitted that he never personally heard the victim say these things about him but that he heard them via a third person. The State objected to this testimony on the basis of hearsay, and the trial court sustained the objection. Mr. Whitehead also testified ...