Assigned on Briefs June 3, 2014
Appeal from the Criminal Court for Shelby County Nos. 11-002623 & 11-007432 Lee V. Coffee, Judge
Juni S. Ganguli (on appeal), and Errol Harmon and Rhonda Hooks (at trial), Memphis, Tennessee, for the appellant, Kenneth Brown.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Theresa McCusker and Alycia Carter, Assistant District Attorneys General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Alan E. Glen and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE
This case concerns a July 3, 2010 shooting on Northmeade in Memphis, Tennessee, at the house of Sonja Watkins and Felix Williams. One victim, Kimberly Jamerson, died, and another victim, Lamarcus Moore, was shot in the leg but survived. Eleven others were named as victims of attempted murder and aggravated assault; another six people were named in one count as victims of reckless endangerment. Appellant, Devon Brown, and David Richardson were indicted in case number 11-007432 for first degree premeditated murder and in case number 11-002623 for thirteen counts of attempted first degree murder, thirteen counts of aggravated assault, reckless endangerment, and employment of a firearm during a dangerous felony. Count thirteen (attempted murder) and count twenty-six (aggravated assault) were dismissed prior to trial. Appellant was tried separately from his co-defendants, and his case proceeded to trial in October 2012.
At trial, Kimberly Jamerson's mother, Willie Brooks-Howze, testified that Ms. Jamerson was twenty-four years old when she died. Ms. Jamerson had been visiting her aunt, Sonja Watkins, when she was shot.
Robrecus Braxton, Sonja Watkins' son, testified that in July 2010 he lived at the house on Northmeade along with his mother, stepfather Felix Williams, two brothers, and two sisters. Robrecus Braxton said that there were several people at his house on July 3, 2010, preparing for the Fourth of July holiday. He specifically named Bianca Nevels, Lashanna Jones, Deangelo Smith, Kenneth Baker, Rodney Davenport, Mark Chambers, Steven Chambers, Felix Williams, Christopher Braxton, and Nakia Greer. On the evening of July 3, he was standing on the sidewalk outside of his house talking with Felix Williams and Nakia Greer when a green Chevrolet Lumina stopped nearby. Two men exited the car and approached them. One of the men told Mr. Greer, "'You owe me.'" Robrecus Braxton testified that he was confused about what was happening, and the man told him that someone had taken "weed" from him. Felix Williams told the man that he would look into the situation. The two men returned to the Lumina and drove away. They returned to Northmeade with a third person ten to fifteen minutes later. The three men approached again, and one of them began "talking reckless[ly], " demanding payment. Robrecus Braxton testified that Felix Williams gave the man $5. Robrecus Braxton identified appellant in the courtroom as the man to whom Felix Williams gave the money.
Robrecus Braxton testified that the three men returned to the Lumina. He said that the Lumina almost "clipped" him as it was driving away. He explained that the Lumina would have hit him if he had not reacted to get away. In response, he threw a beer can into the open passenger window of the Lumina. The Lumina stopped, and the three men returned. Robrecus Braxton testified that he, Christopher Braxton, and Kenneth Baker fought with the three men from the Lumina. He said that none of the six participants in the fight had weapons and that it was a "fist fight." When the fight broke up (Robrecus Braxton did not explain how the fight was broken up), the three men returned to the Lumina. As they left, they said, "'All right, that's what up.'" Robrecus Braxton said that he understood the men to mean, "We'll be back, " but he admitted that they did not actually use that phrase.
Robrecus Braxton further testified that after the men left in the green Lumina, he and his friends and family continued to "hang out." He said that he was under the carport when he thought he saw and heard fireworks. He then heard what he believed to be gunshots. He ran to the backyard because he "was scared." Robrecus Braxton said that he heard one of his friends yell, "'Kim's been shot.'" He explained that "Kim" was his cousin, Kimberly Jamerson. Robrecus Braxton said that he continued to hear gunshots and that he saw Mark Chambers shooting back. Robrecus Braxton believed that Mark Chambers' action in firing back "made them stop shooting."
Robrecus Braxton said that once the gunfire ended, he went to the front of the house. He saw Lamarcus Moore being carried to a car, and he saw Kimberly Jamerson lying on the sidewalk. Robrecus Braxton heard someone say that Ms. Jamerson had been shot in the head. He said that he left the house in a car and drove until he saw "undercover police." He told the police officers that his cousin had been shot, and the police went to his house. Robrecus Braxton estimated that he heard at least sixty shots and said that the gunfire hit houses and cars in the area. He believed that the gunfire occurred two to three hours after the fist fight. Robrecus Braxton testified that he identified appellant in a photographic lineup the following day.
On cross-examination, Robrecus Braxton testified that the can he threw into appellant's passenger window was full. He said that ten or eleven other people were in the yard during the fist fight. He recalled seeing the green Lumina once after the fight, driving on a nearby road. Robrecus Braxton said that he knew the men in the Lumina lived in the neighborhood but did not know their addresses. Robrecus Braxton agreed that he saw Mark Chambers shooting and stated that Mark Chambers was known to carry two guns. He did not recall seeing Steven Chambers with a gun.
Felix Williams testified that on July 3, 2010, while his family was making preparations for a Fourth of July celebration, his sister-in-law, Dena Watkins, tried to purchase a $5 bag of marijuana. Nakia Greer flagged down appellant, who was driving by in a Lumina, to inquire about purchasing marijuana. Appellant drove away and then returned. When appellant returned, he and Dena Watkins stepped away for a few minutes. Then, appellant drove away, and Ms. Watkins left separately to go to a store. Fifteen to twenty minutes later, appellant returned and confronted Mr. Greer with an accusation that Ms. Watkins had taken some of appellant's marijuana without paying for it. Mr. Williams testified that appellant said his "half-ounce [was] a gram short" and that he wanted Mr. Greer to pay for the missing marijuana. Mr. Williams told appellant to come back later. Mr. Williams testified that he intended to find out what happened to the marijuana when Ms. Watkins returned. According to Mr. Williams, Ms. Watkins denied having taken the marijuana. Mr. Williams said that when appellant returned, he gave appellant $5 and asked him to leave. Appellant and his two co-defendants returned to the their car and began driving away. However, in the process of driving away, appellant "almost pinned Robrecus Braxton in between" appellant's car and the car beside which Mr. Braxton was standing. Mr. Williams recalled seeing Mr. Braxton throw a beer into appellant's car. Appellant stopped his vehicle, and he and the two men with him approached Mr. Braxton. They began fighting, and Mr. Williams and Mr. Greer tried to break up the fight. Eventually, the men stopped fighting, and appellant and his co-defendants left. Mr. Williams testified that one of the men said, "'We'll be back.'" Mr. Williams also recalled "hearing a window bust." Mr. Williams said that he saw appellant's car again later but did not "think anything of it because [they] all stay in the same neighborhood."
Mr. Williams testified that some time later, he was walking his niece, Kimberly Jamerson, to her car when someone shot bottle rockets at him. He said that one bottle rocket "flew in front of" him and one hit him in the arm. Mr. Williams stated that the gunshots began approximately thirty seconds later. He went to the backyard and then into his house. He saw a blood trail inside and learned that Lamarcus Moore had been shot. He testified that he was scared during the gunfire. Mr. Williams said that he called 9-1-1 from a neighbor's house. The following day, he identified appellant in a photographic lineup, noting on the lineup form, "Killed my niece. He is the driver."
On cross-examination, Mr. Williams said he did not know from what direction the gunshots came. He said that he heard assault rifles, a handgun, and a shotgun. He testified that he did not see who shot Kimberly Jamerson.
Kenneth Baker testified that he was at the house on Northmeade on July 3, 2010, and participated in the fist fight. He recalled seeing appellant and appellant's brother, Devon Brown, outside during what he believed was the attempted sale of marijuana to Dena Watkins. He saw appellant and Devon Brown again later, with a third man. Mr. Baker said that the men accused his aunt of stealing some of their marijuana. Mr. Baker heard Felix Williams offer to "pay them some money to leave, to keep the commotion down." He said that one of his cousins heard one of the individuals with appellant say, "'These py a** n don't want it.'" Mr. Baker said that he and his cousins then began fighting the three men, "three on three." He further said that Felix Williams tried to break up the fight. Mr. Baker testified that the fight ended "[w]ith them saying they'll be back. And they came back over for the shooting." Mr. Baker said that later that night, he was in the front yard when he saw "infrared lights on [his] shirt, green and red lights on [his] shirt." He described the lights as being "[l]ike what's on a gun, what you aim it with, to hit your target with." He did not think anything of the lights until he heard gunshots. Mr. Baker said that he heard fireworks first and then gunshots. He ran under the carport when the gunfire began. He testified that he was "scared [and] [i]n fear for [his] life." After the gunfire ended, he found Kimberly Jamerson lying on the concrete.
On cross-examination, Mr. Baker testified that there were approximately thirty people at the Northmeade house on July 3. He agreed that some of the people were drinking alcohol and some, including himself, were smoking marijuana. Mr. Baker said that the comment, "'These py a** n don't want it, '" was said by appellant as he was leaving in his car before the fight and that after the comment was made, Robrecus Braxton threw a beer can into appellant's car. Mr. Baker testified that the driver stopped the vehicle and was the first to exit the car but that he could not recall whether appellant was the driver. He agreed that there were many people in the yard during the fight but could only recall two others besides himself actually fighting. He further agreed that his group "got the best of" appellant's group during the fight. When shown a picture of appellant taken by the police on July 6, 2010, Mr. Baker identified appellant as "[t]he enemy, " pointed him out in the courtroom, and agreed that the picture represented appellant's appearance after the fight. He testified that he knew the back window of appellant's car was broken after the fight but that he did not know how it was broken. Mr. Baker said that he saw the lights on his shirt fifteen to thirty minutes after the fight. He agreed that he made the assumption that appellant fired on his family because of the fight. Mr. Baker also identified photographs of Steven Chambers and Mark Chambers. He explained that the police showed him their photographs when he was giving his statement. During the police interview, he wrote on the bottom of the photograph of Steven Chambers "fired back" and on the bottom of Mark Chambers' photograph, "returned fire back." Mr. Baker testified that the Chambers were the only people at the Northmeade house whom he saw with guns.
Mark Chambers testified that he visited the Northmeade house on July 3, 2010. His nephew, Lamarcus Moore, accompanied him, and his brother, Steven Chambers, arrived later. He said that after dark, he was eating under the carport when he heard fireworks and saw people running. At first, he believed that they were "playing, " but someone told him that Mr. Moore had been shot. He ran to the front yard to look for Mr. Moore, but when he realized bullets were hitting the house and vehicles parked outside, he "ran back behind the wall." He returned to the front yard to again look for Mr. Moore, but this time, he began firing both of his guns — a .9mm Smith and Wesson and a .9mm Ruger — in the direction from which the gunfire came. Mark Chambers testified that the gunfire was coming from a hill several houses down the street from the Northmeade house and that he could see light flashing from the gunfire. He heard more than fifty gunshots and said that the gunfire lasted six or seven minutes. He said that he fired seven to ten times from each of his guns and that he then ran all around the Northmeade house. He found Mr. Moore inside the house and took him to a hospital. Mark Chambers said that he knew his brother had one of his guns at some point but that both guns "ended up" in Mark Chambers' car, a maroon Buick Roadmaster. Both of his guns were entered as exhibits to the trial.
During cross-examination, when asked whether a truck next door was in his line of sight while he was shooting, Mark Chambers agreed that he saw a truck next door but never confirmed that it was in his line of sight while shooting.
Steven Chambers testified that he arrived at the Northmeade house during the afternoon of July 3, 2010. He recalled that after dark, he was standing around with several other guests behind a truck parked in the driveway when he heard what he thought were firecrackers. He realized that he was hearing gunshots when he saw bullets striking the truck. He and the other guests ran to the backyard. When he was in the backyard, he heard that Kimberly Jamerson had been shot. Steven Chambers testified that he had seen her walking to her vehicle before the gunfire began. Steven Chambers said that while the gunfire continued, he went into the Northmeade house and found his nephew, Lamarcus Moore, lying in the floor and learned that Mr. Moore had been shot. When his brother, Mark Chambers, entered the house, Mark Chambers and "Cleotha" began helping Mr. Moore to Mark Chambers' car. Steven Chambers testified that Mark Chambers dropped one of his guns, so he picked it up and fired a couple of shots to cover Mark Chambers, Cleotha, and Mr. Moore as they moved across the yard. Once they all got in Mark Chambers' car, Steven Chambers drove them to the Regional Medical Center because Mark Chambers did not know the way. He returned his brother's gun to him while they were in the car. Steven Chambers estimated that he heard approximately fifty rounds being fired that evening and agreed that he had been afraid for his life.
Memphis Police Sergeant Kevin Lundy testified that he participated in the investigation of the shooting at the Northmeade house. He was responsible for collecting two guns from a maroon Buick Roadmaster and transporting the guns to the police department's property room.
On cross-examination, Sergeant Lundy agreed that Mark Chambers had been originally charged with Kimberly Jamerson's murder but was later cleared. He testified that Mark Chambers gave him a statement in which he said that he "was looking at a truck at the house next-door and their car down the street on the hill towards Rangeline" when he fired his weapon.
Memphis Police Sergeant Marlon Wright testified that he was a crime scene investigator at the time of the incident in question and responded to the crime scene the night of July 3, 2010. He said that the police discovered sixty-one shell casings fired from a high- powered rifle in the yard of a house on the corner of Helmwood and Northmeade (hereinafter "Helmwood"), which was over 233 feet from the crime scene. He explained that the Helmwood location was on a steep hill overlooking Northmeade, and he testified that from Helmwood, a person could see all of Northmeade. Conversely, a person at the Northmeade crime scene would not have been able to see anyone at the Helmwood location due to the angle of incline and the trees in the yard at Helmwood. Sergeant Wright further testified that the police found "fifteen or so" casings at the Northmeade crime scene. The Northmeade house, mailbox, and vehicles parked outside had all been struck by bullets.
On cross-examination, Sergeant Wright agreed that a truck parked at the Northmeade crime scene obstructed the view of the Helmwood location from the crime scene.
Inga Yancey testified that she lived at the house at the Helmwood location. She was at home but asleep the night of July 3, 2010. Ms. Yancey testified that she was awakened shortly after midnight by what she believed were firecrackers. She checked on her dog in the backyard and returned to sleep. Ms. Yancey said that she did not see anything in her yard that night. She testified that when she did yard work earlier that week, she did not see shell casings in her yard.
Dena Watkins testified that she visited her sister's family at the house on Northmeade July 3, 2010, to prepare for the Fourth of July. She arrived at 10:30 a.m., and the other people at the house at that time were Sonja Watkins, Felix Williams, Christopher Braxton, Robrecus Braxton, Angel Henderson, Veronique Watkins, and Lantrivia Watkins. Later that day, after dark, she asked Felix Williams' friend, who went by the nickname "Face, " whether he knew anyone who could sell her marijuana. "Face" flagged down a green Lumina and asked the driver for marijuana. Dena Watkins testified that there were two men in the Lumina. The two men returned with marijuana for her, but she decided not to accept it after she inspected the bag. She said that she held up the bag to look at the marijuana, that she never opened the bag, and that another person told her that he could find better marijuana for her. She said that she returned the bag to the men from the Lumina and left in search of better marijuana. Dena Watkins testified that when she returned, she learned that the men from the Lumina had accused her of stealing a gram of marijuana. She said that she had not but offered to give them $5 anyway. She waited for the men to return but left after having waited thirty minutes. When she returned, Felix Williams told her that the men had come back and that he had given them $5. Dena Watkins said that some time after that, she saw the Lumina return. She testified that the Lumina drove very close to some men standing on the street, "almost like they [ran] over their feet." The Lumina stopped, and three men exited the car and began fighting the Northmeade group. Felix Williams broke up the fight, and the men from the Lumina left. Dena Watkins said that she could not identify any of the men from the Lumina because it was dark. She testified that she was not at the Northmeade house when the shooting occurred but arrived immediately after learning that Kimberly Jamerson had been shot.
On cross-examination, Dena Watkins identified several cars that were on the street and in the driveway at the Northmeade house. In particular, she identified Jalon Baker's car, Sonja Watkins' car, a vehicle on which Felix Williams was working, and Travis Britton's truck. She recalled ...