Assigned on Briefs December 2, 2014
Appeal from the Criminal Court for Shelby County No. 11-07211 Chris B. Craft, Judge
Robert Todd Mosley (on appeal), Waynesville, North Carolina; and Coleman W. Garrett (at trial), Memphis, Tennessee, for the appellant, Terrance Johnson.
Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Stephanie Zander Johnson, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
This case concerns the shooting death of Lewis Oliver at his home in Memphis, Tennessee, on May 30, 2011. Appellant was accused of murdering the victim using a firearm that he stole from his uncle's vehicle; therefore, he was indicted for second degree murder, employing a firearm during the commission of a dangerous felony, and burglary of an automobile. The indictment did not specify the dangerous felony underlying the firearm charge. Because the arguments presented to this court on appeal are questions of law, not of fact, we will limit our recitation of the testimony presented at appellant's trial to a brief summary.
At trial, two of the victim's grandchildren testified that they found the victim deceased in the yard of his home on May 30, 2011, Memorial Day. The medical examiner testified that the victim had been shot a total of three times - in his chest, in his back, and in his right leg. The medical examiner characterized the back wound as a contact wound, meaning that the muzzle of the gun was against the victim's body. The other two wounds were inflicted from an indeterminate range.
Police officers testified that they found two shell casings and one spent bullet. The shell casings were Winchester .25 caliber automatic and the spent bullet was consistent with being .25 caliber. During their investigation, the police learned that appellant's uncle, Alfred Johnson, had accused appellant of stealing a .25 caliber semiautomatic pistol from his vehicle. Other information gathered in the investigation implicated appellant in the victim's murder, and he was arrested on June 3, 2011.
The police officer who interrogated appellant testified that appellant initially denied any involvement but later admitted that he had stolen his uncle's gun and that he had shot the victim. Appellant told the police that on the day of the murder, someone told him that the victim had been beating appellant's mother, Freddie Johnson. Appellant went to the victim's house and heard the victim and Ms. Johnson arguing. Appellant confronted the victim, and the victim cursed at him, made vulgar comments about Ms. Johnson, and threw a vodka bottle at him. Appellant said that the bottle hit his arm and that he responded by shooting the victim. Appellant claimed that he was approximately five feet away from the victim when he shot the victim. Appellant told the police that his friend Cedric Matthews was with him when he stole the gun and when he shot the victim. He said that he gave Mr. Matthews permission to sell the gun afterwards and that Mr. Matthews sold the gun to "Marcus."
Ms. Johnson testified that she had been at the victim's house the night before his death but that she was at the rooming house where she lived all day on May 30, moving furniture and other items. She learned about the victim's death from her landlord. She said that the victim was never abusive towards her. Her landlord testified that he was in and out of the rooming house during the day on May 30, that Ms. Johnson was at the rooming house every time that he was there, and that the tenants were cleaning the house that day.
Alfred Johnson testified that he noticed his handgun was missing from his vehicle on May 29, a Sunday, and that he confronted appellant about it right away. When appellant denied having the handgun, Mr. Johnson reported the incident to the police. Marcus Thomas testified that appellant sold him the handgun on Tuesday, May 31. Mr. Thomas said he threw the gun into the Wolf River because of information he received about the gun later.
Appellant, testifying on his own behalf, stated that he stole the handgun on May 30 with the intent to sell it. While he and Cedric Matthews were walking around their neighborhood looking for someone to buy the gun, a man named Willie told him that the victim was beating up Ms. Johnson. Appellant said that he went to the victim's house, and Ms. Johnson was "coming off the porch." Appellant testified that she had a swollen eye and disheveled hair. Appellant claimed that he asked the victim "what was going on." Appellant testified that the victim was belligerent and threw a vodka bottle at him. Appellant said, "I pulled out the gun, he grabbed my arm and tried to ...