Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County No. 12-03720 James M. Lammey, Jr., Judge
Andrew R. E. Plunk (at trial and on appeal) and Claiborne H. Ferguson (at trial), Memphis, Tennessee, for the appellant, Derek Horne.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jennifer Nichols and Eric Christensen, Assistant District Attorneys General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Roger A. Page, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
In August 2013, the Shelby County Criminal Court grand jury charged the defendant with one count each of aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony. The trial court conducted a jury trial in September 2013.
The State's proof at trial showed that on March 29, 2012, the defendant contacted his cousin, Edarious Hill, and asked Mr. Hill to drive him to an area near the University of Memphis campus. Mr. Hill arrived at the defendant's house in the late afternoon, and the defendant, who was carrying a backpack, got into Mr. Hill's vehicle and directed Mr. Hill to a street near Reece Street. The defendant got out of the car with his backpack, and Mr. Hill watched him disappear between two houses. Mr. Hill was aware that the defendant intended to commit a burglary, but Mr. Hill did not know which house was the defendant's intended target. A few minutes later, the defendant called Mr. Hill's cellular telephone and informed Mr. Hill that he was "around the corner" on "Reece" street. Approximately 10 to 15 minutes later, Mr. Hill moved his vehicle to a different street because he became uncomfortable "just sitting in one spot."
Mr. Hill called the defendant and urged him to hurry. The defendant then called Mr. Hill and informed him that "[t]hey done pulled up." When Mr. Hill asked who the defendant meant, the defendant replied, "The people." The defendant asked Mr. Hill to wait a moment, and Mr. Hill then heard a young woman scream. Mr. Hill asked the defendant who had screamed, and the defendant stated, "The lady." When Mr. Hill asked the defendant what he was doing, the defendant replied, "Nothing, " and he ended the call.
A few minutes earlier at 4:30 p.m., Kayla Grace, a nursing student at the University of Memphis, finished her classes for the day and proceeded to her residence at 480 South Reece Street, which she shared with two roommates. While en route, Ms. Grace spoke to her friend, Natalie Smith, by telephone, and the two discussed meeting for dinner later that evening. When Ms. Grace reached her residence, she unlocked the door, entered the house, set down her backpack, and realized that the interior lights were not working. Ms. Grace mentioned to Ms. Smith that the power must be out. As Ms. Grace was attempting to turn on a light in the hallway, "someone spun [her] around, and they held a gun to [her] and said . . ., 'Give me all your money.'" Ms. Grace screamed and dropped her telephone, causing the call with Ms. Smith to end abruptly. Ms. Grace recalled that the gun wielded by the defendant was "a small silver handgun." Ms. Grace immediately gave the man, whom she identified in court as the defendant, her wallet.
The defendant then asked Ms. Grace "where the Mac Book computer was." Although the computer was inside Ms. Grace's backpack, Ms. Grace told the defendant that she did not have it with her because she had all of her nursing work in her backpack. The defendant then demanded to know to whom Ms. Grace had been talking and insisted that Ms. Grace return the call to tell Ms. Smith that everything was alright. The defendant threatened to kill both Ms. Grace and Ms. Smith if Ms. Smith arrived at the house to check on her well-being. Just then, Ms. Smith called Ms. Grace's telephone. With the defendant pointing his gun at her, Ms. Grace told Ms. Smith that she had tripped on an air vent and fallen but that she was alright. Ms. Smith inquired if Ms. Grace was being held hostage, and Ms. Grace insisted that she was fine and that she would meet Ms. Smith later. Ms. Grace ended the call, and the defendant took her telephone.
The defendant instructed Ms. Grace to go upstairs, but Ms. Grace refused. The defendant then forced Ms. Grace to "get on [her] hands and knees on the kitchen floor" while he retrieved two computers from outside the house and placed them in his backpack. The defendant walked Ms. Grace into her room and kicked her backpack, asking what was inside. Ms. Grace told him it was only nursing books, but the defendant forced her to open the backpack, revealing Ms. Grace's Mac Book laptop computer. Ms. Grace apologized, and the defendant forced Ms. Grace at gunpoint to give the computer to him. Ms. Grace testified at trial that, with the exception of a 10-second time period in which the defendant placed the gun in his pocket to retrieve the computers he left outside, the defendant kept the handgun out "the whole time."
While the defendant ransacked Ms. Grace's room searching for other items to steal, the defendant's cellular telephone continued to ring. The defendant finally answered the telephone and told the caller, "'I'm almost ready – I'm almost done.'" The defendant told Ms. Grace to get back onto her hands and knees. He informed her that he would return in one hour and that, if he saw a police car at the house, "he wasn't even going to wait until tomorrow; that he was going to kill [her] in [her] sleep that night." He also instructed Ms. Grace to tell people that a white man had robbed her. The defendant left the room but returned a moment later, saying, "'I'm sorry I have to do this, but I just can't trust you.'" The defendant then put the gun to Ms. Grace's head and cocked it before fleeing from the house.
When the defendant returned to Mr. Hill's vehicle, Mr. Hill noticed that the defendant's backpack contained three laptop computers, a cellular telephone that Mr. Hill knew did not belong to the defendant, and a small handgun. Later that evening, Mr. Hill drove the defendant to a fast food restaurant where the defendant sold one of the computers. The defendant paid Mr. Hill $50 for his ...