Assigned on Briefs September 3, 2014
Appeal from the Criminal Court for Shelby County No. 06-00017 Paula Skahan, Judge
Rosalind Elizabeth Brown, Memphis, Tennessee, for the appellant, Tarrence Parham.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, 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 Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.
ALAN E. GLENN, JUDGE
The petitioner was convicted of the attempted second degree murder and reckless aggravated assault of an eight-year-old girl and sentenced to an effective term of twenty years in the Department of Correction. State v. Tarrence Parham, No. W2009-00709-CCA-R3-CD, 2010 WL 2898785, at *1 (Tenn. Crim. App. July 26, 2010), perm. app. denied (Tenn. Nov. 10, 2010). On direct appeal, this court affirmed the judgments of the trial court after modifying to reflect that the petitioner's conviction for reckless aggravated assault was merged into his conviction for attempted second degree murder. Id. The Tennessee Supreme Court denied his application for permission to appeal. Id.
The underlying facts were recited by this court on direct appeal as follows:
Shamika Nabors testified that on September 5, 2005, Labor Day, she was among a group of people congregating outside their apartments at the Barron Brook Apartments in the Orange Mound neighborhood of Memphis, Tennessee. The [petitioner], whom she called "Black, " was also outside, and she heard him say that he was going to kill "these weak ho's and b----es[.]" At first she thought he was speaking to himself, but as she watched him, she realized that he was looking at a man named Philemon, who was sitting in a windowsill in the breezeway. Ms. Nabors pulled Philemon into her apartment and told him what the [petitioner] had said. Then, they returned outside, and Philemon resumed his seat on the windowsill. Five to ten minutes after she and Philemon returned, the [petitioner] walked away and then returned. He raised a silver revolver and fired one shot down the breezeway and two shots in the park area nearby. Ms. Nabors saw Philemon run down the breezeway towards the laundromat and leave the apartments. Ms. Nabors testified that the [petitioner] fired the first shot toward a utility box. She later learned that her two-year-old daughter had been near the box when the [petitioner] began shooting. Ms. Nabors testified that she froze when the [petitioner] began shooting. After the last shot, the [petitioner] left the apartments, and [the victim] ran for her mother. Ms. Nabors saw that the [petitioner] had shot [the victim] in the leg. She did not know where [the victim] was when she was shot, but she identified pictures of the green box with blood on it. She identified the [petitioner] as the shooter in a photographic lineup when she gave her statement to police and in the courtroom during her testimony.
Ms. Nabors testified that she did not see or hear anyone threaten or fight with the [petitioner] prior to the shooting. She did not see anyone else with a gun nor did she see anyone "raise up their shirt at [the petitioner]." Ms. Nabors said that Philemon was neither facing the [petitioner] nor did he have his back to the [petitioner] when the [petitioner] began firing, but after the first shot, Philemon ran away. She did not see a young man give the [petitioner] a gun. Ms. Nabors testified that no one shot back at the [petitioner]. She recalled that several of the men in the group were smoking marijuana, including Philemon, but she did not hear the [petitioner] say anything about the marijuana.
On cross-examination, Ms. Nabors testified that there were approximately fifteen people outside that day. She said that she had seen the [petitioner] and Philemon together before. She saw the [petitioner] in a wheelchair several days before the shooting, but she said he was not in a wheelchair that day. His leg was bandaged, and it was difficult for him to run. Ms. Nabors testified that the [petitioner] ran in the same direction as Philemon. She said that Philemon did not live in the apartment complex.
On re-direct examination, Ms. Nabors testified that she believed the [petitioner] was shooting at Philemon.
Tosha Keller testified that on September 5, 2005, she and her family and friends were gathered outside of her apartment preparing for a barbecue. A man named Philemon was sitting in the window of an apartment unit, rolling a marijuana cigarette, when the [petitioner] approached him. Ms. Keller said that the [petitioner] "said some things to Philemon. Philemon just kept on doing what he was doing." She heard another man tell the [petitioner] "that he couldn't smoke the marijuana cigar." Ms. Keller did not see anyone threaten or yell at the [petitioner]. The [petitioner] walked down to the end of the apartment unit, but three to five seconds later, he returned and began shooting. Ms. Keller was standing five feet away from Philemon, and she believed that the [petitioner] aimed at him. She testified that the [petitioner] fired one shot before Philemon began running away. The [petitioner] chased after him and fired two more shots. After Philemon and the [petitioner] ran out of her sight, she heard two more shots. Ms. Keller testified that the [petitioner] fired a total of five shots, three that she saw and two that she heard. Ms. Keller assumed that the [petitioner] fired the shots that she heard because no one was returning fire. She said that she did not see anyone else with a gun that day. Ms. Keller testified that she remembered the gun being black, but she agreed that her memory was better on the day of the shooting when she gave a statement to the police that the gun was a chrome revolver.
Ms. Keller testified that after the shooting, she and her neighbors were trying to find the children that had been playing near the laundromat. She had seen [the victim] running when the shooting began, but [the victim] went back to get Ms. Nabors's two-year-old daughter, with whom she had been playing. When the shooting was over, Ms. Keller saw [the victim] walking towards her carrying the two-year-old. [The victim] said that she was hurting, and Ms. Keller realized that she had been shot in the leg.
Ms. Keller testified that the [petitioner] moved into the apartment complex two to three months prior to the shooting. She said that "it was chaos" after he moved in. She recalled seeing him in a wheelchair, with casts on his legs, for a period of approximately two weeks. Ms. Keller testified that on September 5, the [petitioner] did not have casts and appeared able-bodied. She said that she knew that someone had shot at the [petitioner]'s apartment because she saw the bullet holes in the door the next day, but she did not testify as to what exact day she saw the bullet holes.
On cross-examination, Ms. Keller testified that she could not remember the color of the gun. She remembered telling the police that she saw the [petitioner] shoot once and then heard another shot, but she believed that he shot more than twice. Ms. Keller said that she saw another man walking with the [petitioner], but she did not know him. She said that the man was not [the victim]'s uncle. Ms. Keller clarified that she saw the bullet holes in the [petitioner]'s apartment door on September 6, 2005, the day after the shooting. She recalled that there were seven to eight adults outside on September 5, and she did not remember how many children were on the playground nearby.
Sharon Williams testified that the [petitioner], whose nickname was "Black, " moved into the Barron Brook apartment complex two to three months before the shooting on September 5, 2005. On that day, she was outside with her neighbors when she heard the [petitioner] say "he [was tired] of them and he [was] going to kill him a mother f---ing n----r" as he was walking towards the end of the apartment unit. Less than a minute later, the [petitioner] turned around and began shooting. Ms. Williams testified that he fired once, chased after a young man, and fired twice more. She said the gun was a silver revolver. Ms. Williams did not see anyone threaten the [petitioner] nor did she see the young man who the [petitioner] chased ever lift up his shirt or draw a weapon.
Ms. Williams said that someone shot at the apartment where the [petitioner] was staying one to two weeks before September 5, 2005. She heard him say that "[h]e had got into it with some guys over there[, ] and they had shot somebody else's apartment up looking for him." A couple of nights before the September 5 shooting, the [petitioner] was in a wheelchair with soft casts on his feet. Ms. Williams had heard that the [petitioner] was injured when he jumped from a second story. Ms. Williams testified that the [petitioner] said that he did not care who he shot, "[h]e [would] kill your momma, your grandmomma, babies and kids, because they don't even have no [sic] business in the way whatsoever." Ms. Williams testified that on September 5, there were five to six people outside. She said that if Philemon had drawn a weapon, she would have seen it.
Kathy Smith testified that on September 5, 2005, she was standing in her doorway while her neighbors were barbecuing outside. The [petitioner] asked her for a cigarette. She gave him one, which he lit. As he walked away, he said, "I'm sick of these b---h a---ed n ----- s. I'm going to kill me somebody today." The [petitioner] turned around and started shooting as he walked by her. Ms. Smith told him to stop shooting because of all the children outside. She started calling for her daughter. When she saw [the victim], she was bleeding. [The victim] said, "[M]omma, I don't want to die."
Ms. Smith testified that her brother, Travis, was not at the apartment complex when the [petitioner] began shooting. He came later that day, after [the victim] was in an ambulance. She said that she did not see anyone threaten the [petitioner], raise up their shirts, or shoot back at the [petitioner]. Ms. Smith went to the hospital with [the victim], where the doctors performed surgery to remove a bullet from her left leg.
On cross-examination, Ms. Smith testified that she did not know where the [petitioner] had gotten the gun. She said that he did not go into an apartment when he was walking away from the crowd nor was he walking with anyone else. She saw the [petitioner] fire two shots ...