Assigned on Briefs October 7, 2014
Appeal from the Circuit Court for Madison County No. 13-239 Roy B. Morgan, Jr., Judge.
Sheila B. Stevenson, Nashville, Tennessee, for the Defendant-Appellant, Jameca M. Tipler.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; James G. Woodall, District Attorney General; and Rolf G. Hazlehurst, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.
CAMILLE R. McMULLEN, JUDGE
Trial. Michael Moncher, a deputy with the Madison County Sheriff's Office, testified that on December 1, 2012, at approximately 11:00 p.m., he heard a series of gunshots as he was driving on Whitehall Street on his way to work. He could tell that the shots were coming from a black sport utility vehicle (SUV) approximately fifty to seventy-five feet in front of him. He observed several muzzle flashes coming from the passenger side of the vehicle and heard "several [gunshots]" before "it stopped for a second and then it started back." He estimated that the total number of gunshots was fifteen to twenty. He was unable to determine whether the shots were being fired from the front passenger seat or the back passenger seat of the SUV.
Deputy Moncher activated his blue lights and siren and approached the SUV. The SUV immediately began traveling at a high rate of speed, somewhere between sixty and sixty-five miles per hour, through the residential area. The SUV then made several sudden stops as if it were going to pull over, and then increased its speed in an effort to elude Deputy Moncher. During one of these stops, Deputy Moncher saw two people get out of the SUV and run away. Deputy Moncher was unsure whether these two people were ever located.
After the two individuals exited the car, the SUV sped off and continued to travel at a high rate of speed through the residential area until it pulled into a steeply inclined driveway at either 117 or 119 Lockwood Drive. Deputy Moncher pulled in behind the SUV to prevent it from backing out. As the SUV came to a stop, the driver and a passenger exited the vehicle and ran in different directions. At the time, Deputy Moncher had already exited his patrol car and was using his door as a shield in case the suspects fired at him. Once the two men jumped out of the vehicle and fled, the abandoned SUV rolled backward down the incline, hitting the front of the patrol car. As the patrol car was pushed backward, the open driver's side door of the patrol car hit Deputy Moncher's shoulder and leg. The damage to the patrol car as a result of this collision was just over $500. Deputy Moncher identified Tipler at trial as the driver of the SUV. He acknowledged that he did not know if Tipler intentionally allowed the SUV to roll backward onto his patrol car; however, he said, "[M]ost people usually put their vehicle in park when they get out of it[, ] and it won't roll back." He said a tracking dog quickly followed Tipler's trail, and Tipler was arrested a few minutes later. Deputy Moncher said the passengers in the car were never found.
Brandon Moss, a sergeant with the canine unit of the Jackson Police Department, testified that his dog tracked Tipler for thirty to forty yards through thick underbrush. When his dog got close to Tipler, Officer Moss heard Tipler say, "I give up. You caught me[.]" He said that no weapons were recovered from Tipler's person. He also said a second canine officer was unable to apprehend the passenger who exited the SUV with Tipler.
Prior to the victim, Roderick Gladney, taking the stand, the State informed the trial court in a hearing outside the presence of the jury that the victim would be invoking his Fifth Amendment privilege against self-incrimination during his testimony, even though the State did not believe he had standing to do so. The trial court asked whether the victim would be making statements that could result in his prosecution for a criminal offense, and the State responded, "Not that I'm aware of. That's why I say I question his standing to do that. I don't see how it would." During the jury out hearing, the trial court informed the victim that he had the right to invoke his Fifth Amendment privilege if his response to any question incriminated him. However, the court explained that the victim was not allowed to invoke his Fifth Amendment privilege simply because he did not want to answer a particular question. In the presence of the jury, the victim subsequently testified that on December 1, 2012, he lived at 811 Whitehall Street in Jackson, Tennessee, and was shot in the chest. The victim stated that he did not want to testify in this case and did not recall anything else that happened on December 1, 2012. He said he did not know who shot him and did not know Tipler.
Dawanica McClellan testified that she was present when the victim was shot at his home at 811 Whitehall Street. Shortly after she arrived at the victim's home, the victim received a phone call and walked out onto the front porch. An instant later, she heard shots and got down on the floor. She identified photographs of bullet holes in the home's door, floor, and roof from the shooting incident. When the shooting stopped, McClellan exited the home and saw the victim lying on the ground in a pool of blood. She admitted that the victim had told her to leave his home for her own safety when she had been at his house earlier that day. McClellan stated that she did not know who had shot the victim.
Lebresee Jeter testified that she was inside the home at 811 Whitehall Street when the shooting began and that she heard approximately thirty shots fired during the incident. The shooting began immediately after the victim walked out onto the front porch. After the shooting, Jeter saw the victim lying on the ground with blood pooled around him. Jeter never saw who shot the victim. She identified photographs depicting bullet holes in the victim's home.
John Reese, an officer with the Jackson Police Department, testified that he responded to the call regarding the shooting at 811 Whitehall Street. Upon arriving at the scene, he observed the victim with a chest wound. He bandaged the victim's wound in an attempt to keep the victim's lung from collapsing. Officer Reese saw "multiple shell casings just strewn in the road . . . along Whitehall Street." He said several rounds had hit the victim's home near where the victim had been standing. Officer Reese identified photographs showing the trail of fifteen shell casings along the road in front of the victim's home. He recalled that two different shell casings were recovered from the scene. Although most of the shell casings were nine millimeter, there was also a .45 caliber shell casing that was recovered, which meant that at least two different weapons had been fired at the scene. Officer Reese stated that the victim was wearing a generic holster on his hip but that no gun was in the holster. He did not recall finding shell casings on the front porch near the victim.
David Evans, another officer with the Jackson Police Department, testified that he collected the victim's bloody shirt and hat, the shell casings, and other evidence at the crime scene. He collected some of the shell casings from the front porch but could not remember the kind or number of these casings. He also collected some shell casings from the street in front of the victim's home.
Alberto Colon, a sergeant in the violent crimes unit of the Jackson Police Department, testified that when he saw the victim at the hospital in Jackson, he was doing so poorly that they were not sure whether he would survive. He said the victim was later airlifted to the Regional Medical Center at Memphis. Sergeant Colon stated that when he arrived at the crime scene, he saw the victim's shirt, hat, and T-shirt lying on the porch. He also observed several shell casings on the porch as well as "a path of [shell casings] just running down" Whitehall Street going toward North Hays Avenue. He stated that nineteen or twenty shell casings were collected from the scene.
Sergeant Colon stated that Tipler, after being advised of his Miranda rights, gave a statement to him at the criminal justice complex. In this statement, Tipler said that two men at the gas station on Whitehall Street asked him for a ride to Lane College in exchange for fifteen dollars. Tipler said that at the time, he had a woman with him named Simone, whom he had met the day before. The men gave Tipler fifteen dollars, and one of the men got in the front passenger seat while the other man sat in the back seat with Simone. Tipler said that when he drove down Whitehall Street near the Eastgate Liquor Store, "the dude in the passenger's seat told me to slow down, so I did, and then they started shooting." The man on the front porch started shooting, and the two men in his car returned fire. Tipler said an officer immediately began pursuing him, and he was scared. He never got the names of the two men in his car. Tipler said the man in the front seat had a dark complexion, weighed between 165 and 170 pounds, was five feet ten or eleven inches tall, had a mustache, and was wearing black jeans and a black shirt. The man in the back seat was five feet eight or nine inches tall, had facial hair, sideburns, little twists in his hair, weighed around 180 pounds, had a medium complexion, and was dressed in dark clothing. Tipler said Simone and the man in the back seat jumped out of his car around the area of Lincoln Circle. Tipler said he drove to the house on the other side of Lincoln Circle and jumped out of the vehicle without thinking about the passenger and ran because he was scared.
Sergeant Colon said he tried to obtain the video recording from the gas station on Whitehall Street but its video recording system was not functioning the night of the shooting. He said the police department received a couple of tips regarding the men in Tipler's car during the shooting incident, but none of the tips provided any leads. Sergeant Colon was unsure whether a canine unit had gone to the Lincoln Circle area to locate the suspects that exited the car first. Although he remembered seeing shell casings on the victim's front porch, which indicated that shots had been fired from the porch, he did not recall the type of these shell casings. However, he said that the shell casings on the street were nine millimeter, which caught his eye because these shell casings formed "a yellow track running down [the street]." Sergeant Colon said no guns were recovered from the scene. He acknowledged that the police were never able to develop Tipler's motive for the shooting. He also acknowledged that the victim had told him that he did not know Tipler and that he was unable to give a description of the vehicle from which the shots were fired. Sergeant Colon said he never presented Tipler with a photospread to try to identify the two men in his car. When asked if he believed the case was closed when Tipler was arrested, Sergeant Colon said he knew Tipler was the driver during the incident and that "we didn't have our shooter." While at the crime scene, Sergeant Colon collected the victim's phone and determined that the victim was talking to his girlfriend at the time he was shot. The defense later recalled Sergeant Colon, who acknowledged that the police received one tip on the Crimestoppers line indicating that Tipler was "believed to have been set up . . . by the two men [who] managed to escape by running from the scene."
I. Sufficiency of the ...