Assigned on Briefs November 4, 2014
Appeal from the Criminal Court for Shelby County No. 12-00036 Chris Craft, Judge
Robert Parris, Memphis, Tennessee, for the appellant, Nico Farmer.
Herbert H. Slatery, III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
ALAN E. GLENN, JUDGE
Early on the morning of October 6, 2011, the murder victim, Antonio Pierce, was walking home from a Memphis nightclub with his friends, Nicole Farmer and Tommy Ray Williams, when he and Farmer were accosted by two men, one of whom demanded money and then fired multiple gunshots at Pierce, who died of his injuries. A neighbor who was looking out his window at the time identified the gunman as the defendant. The Shelby County Grand Jury subsequently returned a two-count indictment charging the defendant and a co-defendant, Terry Johnson, with the first degree felony murder of Pierce and the attempted aggravated robbery of Farmer. The co-defendant died sometime after the indictment was returned, and the defendant proceeded to trial alone in October 2013.
Arbory Pierce, the father of Antonio Pierce, identified a photograph of the victim and testified that he passed away on October 6, 2011.
Nicole Farmer testified that at approximately 3:00 a.m. on October 6, 2011, she was walking home from a neighborhood nightclub, "Hey Baby, " with Antonio Pierce and Tommy Ray Williams. Williams had just separated from her and Pierce to continue on his separate way home when two men came up behind her and Pierce and said, "Y'all know what it is, " which, she said, meant that it was a robbery. She said she turned around, began backing up, and said to one of the two men who had a gun, "Baby, I ain't got nothing." She stated that the gunman was approximately 5'6" or 5'7" tall, had a reddish, light-skinned complexion, and was taller than the second, dark-skinned, unarmed man. Both men were dressed all in black and had their faces and heads covered so that only their eyes were visible. The gunman pointed his gun directly at her for several seconds and then turned to Pierce and shot him.
Farmer testified that she froze after the gunman shot Pierce but that Williams, who had been crossing the street, ran back and grabbed her and the two of them fled together toward a store on Eldridge Street. She said she started to call the police on her phone, but they arrived before she could make the call. She heard more gunshots and looked back to see Pierce getting up from the ground and running toward an apartment complex with the two assailants chasing him. She heard multiple additional gunshots as she continued her flight from the area. She later returned to the apartment complex, saw the victim lying on the ground with his shirt covered in blood, held his hand, and asked him who had done this to him. The victim replied, "Nicky, I know who did it because they tried to rob me once before."
Tommy Ray Williams testified that when he, Pierce, and Farmer reached the corner of Hunter and Springdale on their walk home from the nightclub, he crossed the street to head toward Hyde Park while Pierce and Farmer started toward the apartment complex. Just before he stepped up onto the opposite curb, he heard gunshots and looked back to see Farmer standing frozen in place as if in shock. He ran back across the street and grabbed Farmer by the arm to pull her away from the area. Pierce was lying on the ground at first but then got up and started running, chased by the individuals who had been shooting. Williams said he heard three or four gunshots while Pierce was still on the ground and five or six additional gunshots after he got up and began running away. It was dark in the area, and he was unable to see the shooters. He said that neither he nor his two companions, Farmer and Pierce, had a gun. He stated that the police arrived just as Farmer was about to call them. At that point, Farmer walked back to the apartment complex area and, after hesitating "for a little bit, " he followed her. By the time he arrived, the victim was already in an ambulance.
Officer Eric Hutchison of the Memphis Police Department's Crime Scene Unit identified photographs he had taken of the crime scene, including one from a balcony overlooking the area where some blood and a number of shell casings were located. He said the area at the entrance to the apartments, including the scene from the balcony, was "well-illuminated" by "fixed lighting from the apartment complex."
Oscar Ellis, a resident of the Cypress Garden Apartments, testified that he worked at a neighborhood grocery on Springdale and was familiar with both the victim and the defendant as customers of the store. He said that he was watching television in the living room of his second floor apartment at about 3:00 a.m. on October 6, 2011, when he heard several gunshots, looked out his front window, and saw two people running. He also heard someone yelling for help. When the first figure reached the light, he recognized the victim fleeing down the driveway. He then saw a second running man slow to a stop, step off a curb, and fire two or three shots at the victim. Ellis testified that the gunman initially had his shirt pulled up over his mouth and a "hoodie" pulled down over his head but that the hood came partially off as he ran, exposing his "dreds, " and that his shirt dropped from his mouth when he stopped to shoot. The area was well-lit, and he had "no trouble at all" recognizing the gunman as the defendant, whom he had seen on at least four or five previous occasions. Ellis testified that he saw a third individual who went "the other way" from the victim and the defendant, staying behind some bushes. Because of the obstructed view, all he could tell about that person was that his or her complexion was darker than the defendant's.
Ellis testified that he got dressed, called 911, and went outside to wait for the officers. He said he saw Farmer talking to the victim, who was lying in the road, and overheard the victim say, "I'm going to get them. I know them. I'm going to get them." Ellis stated that the police later contacted him and took him downtown to view a photographic array, from which he identified the defendant as the shooter. He explained that he wrote on the array that he was ninety percent sure that the defendant was the shooter, despite the fact that he was actually one hundred percent certain, because he lived in a rough neighborhood, was scared, and "didn't want to get involved." However, there was "no doubt" in his mind that it was the defendant he saw that night. On cross-examination, Ellis reiterated that he was absolutely certain of his identification.
Officer George Cave of the Memphis Police Department's Felony Response Unit testified that he was sent to the city hospital, "The Med, " in the early morning hours of October 6, 2011, in connection with the investigation of a gunshot victim, Terry Johnson, who had shown up at the hospital at about the same time that the victim arrived. He stated that Johnson, who had a medium to dark complexion, appeared to have sustained a "through-and-through gunshot wound" to the leg. He said that Johnson was transported to the Homicide Bureau, where he was photographed. He identified photographs of Johnson, including one depicting that Johnson had a tattoo of the name "Duke" on his left arm.
Raphael Ellis, who said he was no relation to Oscar Ellis, testified that he turned himself into the police on October 11, 2011, because he had five warrants, including ones for aggravated assault, theft of property, and violation of probation. On October 14, 2011, he pled guilty to violation of probation, was sentenced to the Shelby County Correctional Center, and left the jail the next morning. He did not know the defendant before October 11 when he entered the jail and had not seen him again after he left the jail on October 15 until the date of the trial.
However, during the time that he was in the Shelby County Jail, he and the defendant were housed close to each other and struck up an acquaintance. Over the course of several conversations, the defendant divulged to him that he was being held on a first degree murder charge and related what had happened. According to the witness, the defendant told him that he and his "charge partner, " "Duke, " had been at Club Hey Baby, where "Duke" had spotted the victim. "Duke" told the defendant that the victim had a lot of money and asked the defendant if he wanted to rob the victim. The defendant eventually agreed, and he and "Duke" trailed the victim when he left the club. When they reached the corner, the defendant pulled his gun on the victim and demanded his money. The victim, who was larger than the defendant, began grabbing at the defendant and the defendant got scared, stepped back, and began firing. In the process, the defendant shot not only the victim but also "Duke, " who had been standing beside the victim trying to get his money out of his pockets. "Duke, " who had been shot in the leg, began yelling, and two of the defendant's other "partners, " "Jessie and Arli, " pulled up in a vehicle. The defendant told "Arli" to take "Duke" to the hospital, and he and "Jessie" ran around the corner to someone's house.
The witness testified that the defendant also told him that a gun the police recovered when they arrested him was not the gun he used in the robbery. According to the witness, the defendant told him that he had destroyed with a hammer the gun that he used to shoot the victim. The witness testified that he had asked for his probation to be reinstated in exchange for his testimony against the defendant and identified a "memorandum of understanding" between himself and the assistant district attorney, which stated that he agreed to provide truthful testimony in exchange for the State's taking his cooperation into consideration in determining the proposed disposition of any pending charges and not opposing his request to have the remainder of his sentence suspended.
On cross-examination, the witness acknowledged that he had been "desperate" to get out of jail at the time he spoke to the prosecutors about what the defendant had divulged. He further acknowledged that he had been granted probation very shortly after he spoke with the prosecutor. He explained that, in his extensive jail experience, it was common for inmates to talk to each other about their pending charges and cases and to seek advice ...