Session November 4, 2014
Appeal from the Criminal Court for Shelby County No. 10-06283 Chris Craft, Judge
Paul K. Guibao (at sentencing and on appeal) and Rebecca Gardner Coffee (at trial), Memphis, Tennessee, for the appellant, Larry Futrell.
Robert Hardy, Jr. (on appeal) and Jake E. Erwin (at trial), Memphis, Tennessee, for the appellant, Terrell L. Smith.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel; Amy P. Weirich, District Attorney General; and Marianne Bell, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
I. Factual and Procedural Background
In October 2010, the Shelby County Grand Jury indicted the Defendants, Larry Futrell ("Mr. Futrell") and Terrell Smith ("Mr. Smith"), for aggravated robbery. Following a trial in June 2012, a jury convicted both men as charged. The trial court sentenced Mr. Futrell, as a Range II multiple offender, to a term of 17 years and Mr. Smith, as a Range III persistent offender, to 26 years in the Department of Correction. Following a hearing, the trial court denied Mr. Futrell's motion for new trial on April 30, 2013, and Mr. Smith's motion for new trial on June 28, 2013. The Defendants subsequently filed timely notices of appeal. Thereafter, this Court entered an order consolidating the Defendants' appeals.
Marcus Long testified that, in March 2009, he lived by himself in a three-bedroom house on Kitty Lee Lane in Memphis. He worked part-time at a retail store and attended school for computer programming. On March 28, 2009, Mr. Long's cousin, Martine Fields, asked him if she and her son could stay at his house. Ms. Fields explained that she and her son had been in a car wreck and needed a place to stay until she received an insurance check from the accident. Mr. Long agreed that Ms. Fields and her son could stay in one of his spare bedrooms.
When Ms. Fields arrived at his house on the morning of March 29, Mr. Long gave her a key to the residence and then left with his girlfriend to go shopping. When he returned home later that evening, Ms. Fields told Mr. Long that someone had broken into the house. Mr. Long testified that he did not call police because he looked through the house and found nothing missing. Mr. Long stated that there were no signs of forced entry and he believed that the intruder had entered through a back window that had been broken out in a previous burglary.
Mr. Long testified that, later that same evening, Mr. Smith called his cell phone and asked to speak to Ms. Fields. Mr. Long did not know Mr. Smith, who identified himself only as "Terrell." Mr. Long stood outside on the porch as Ms. Fields spoke to Mr. Smith inside the house. About 10 minutes later, she brought the phone to Mr. Long and said that Mr. Smith wanted to talk to him. Mr. Smith told Mr. Long that Ms. Fields was related to Mr. Smith's girlfriend. Mr. Smith said that "a whole lot of drugs" had "c[o]me up missing, " and he asked if Mr. Long thought Ms. Fields could have stolen the drugs and whether she had been "acting funny." Mr. Long told Mr. Smith that he did not know anything about the missing drugs and that he did not think Ms. Fields would have taken them. Mr. Smith said that he did not know who to believe or what had happened but "he could be in a lot of trouble about it . . . ." Mr. Smith then requested to speak to Ms. Fields again.
That same evening at approximately 9:00 p.m., Mr. Long was sitting on his porch when a black car pulled up, and a man, whom Ms. Fields later introduced as Mr. Smith, asked to speak to Ms. Fields. Mr. Long talked to Mr. Smith for about 15 minutes inside his carport.
Mr. Smith repeated what he had said to Mr. Long over the phone and told Mr. Long that Ms. Fields had moved the drugs from another house to Mr. Long's house. Mr. Smith said that "he knew it had been over to [Mr. Long's] house and it just came up missing so he knows somebody had to have something to do with it." However, Mr. Smith was not aggressive towards Mr. Long and did not blame Mr. Long. Mr. Smith again said that he was going to be in "a lot of trouble" and that it was "his head on the line." Mr. Long told Mr. Smith that he did not know anything and had been away from the house all day.
After Mr. Smith left, Mr. Long spoke to Ms. Fields and asked her what was going on. Mr. Long explained that he did not call police because:
I had felt like at the time I was just going to tell [Ms. Fields] to leave and go and like I said, when I talked with [Mr. Smith], he wasn't violent toward me, he wasn't accusing me, you did this or you did that or anything. Like I said, the whole time we were talking the conversation was calm . . . .
Mr. Long did not tell Ms. Fields to leave that night because she had her son with her, and he was bruised and bandaged from the car accident. Ms. Fields told Mr. Long that she would get her check in a week or so, and he decided to let her stay until then.
Mr. Long left for school at 8:00 a.m. the following morning. Around 11:00 a.m., Mr. Long received a call from Ms. Fields, asking him "come to the house real quick" because they needed to talk. Mr. Long testified that, when he got home, Mr. Smith's black car was parked in his yard and Ms. Fields was in the living room with Mr. Smith. Mr. Smith began talking about the missing drugs again. He said, "[M]an, it was in this house, somebody had to do something with it, you know, it need [sic] to come up."
Mr. Long testified that, about ten minutes later, two "[t]all, dark, skinny guys with dreads" came into the residence through the front door. Mr. Long stated that the two men looked like brothers but one man had longer hair and a skinnier face than the other man. Mr. Smith told Mr. Long "they're with [me]." The two men stood behind the couch as Mr. Long and Mr. Smith continued to talk. One man, whom Mr. Long identified as Mr. Futrell, asked if he could use the restroom. As Mr. Futrell walked towards the restroom, he turned around and pulled out a silver, automatic handgun and came towards Mr. Long, pointing the gun at his face. Mr. Futrell ordered Mr. Long to get down on the ground and said, "I know you know where the drugs [sic] at. All we want is the drugs." The other man with dreadlocks pushed Mr. Long ...