Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs September 16, 2014 at Knoxville
Direct Appeal from the Circuit Court for Montgomery County No. 41300310 John H. Gasaway, III, Judge
Roger E. Nell, Shelby Stack Silvey, and Michael Tyler Howard (on appeal) and Charles S. Bloodworth, Sr. (at trial), Clarksville, Tennessee, for the appellant, James Antonio Bagwell.
Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and John Finklea, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Roger A. Page, and Robert H. Montgomery, Jr., JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
In March 2013, the Montgomery County Grand Jury indicted the appellant, Detarius Curry, and "one other unknown black male" for count 1, attempted second degree murder of Tammy Earp; count 2, attempted second degree murder of Evan Hickey; count 3, reckless endangerment by discharging a weapon into the habitation of Shemeka Winters; count 4, aggravated assault of Tammy Earp while acting in concert with two or more other persons; and count 5, aggravated assault of Evan Hickey while acting in concert with two or more other persons. Curry pled guilty to one count of aggravated assault and reckless endangerment, and the appellant proceeded to trial.
At trial, Teresa Zoppe testified that she lived on Barkwood Drive in Clarksville. About 5:30 p.m. on September 24, 2012, Zoppe was doing yard work in front of her house when she heard "some arguing going on." At first, Zoppe thought people were "goofing off and playing around." However, she then heard a man say, "[Y]ou know, go on back home because I'm not going to argue with a child." Zoppe saw a blonde-haired woman make a telephone call. The woman was "[a] little angry, " but Zoppe did not see with whom the woman was arguing. After the woman made the call, a car arrived and stopped behind another vehicle that was "sitting on the street." Zoppe said that seven or eight people were standing on the street and that she heard gunshots. Zoppe grabbed her grandchildren, took them inside, and called 911.
On cross-examination, Zoppe testified that she did not see who fired the gun. She acknowledged that a house was for sale on Barkwood Drive at the time of the incident and that she had seen a helium balloon on the "for sale" sign.
The parties stipulated to three 911 calls related to the incident, and the State played the calls for the jury. In the first call, made by Zoppe at 5:39:18 p.m., Zoppe reported that "they're shooting guns at each other." She said that fifteen or twenty people were on Barkwood Drive and that "they're going crazy." In the second call, which was made by Shemeka Winters at 5:40:25 p.m., Winters said that she and her children were in her kitchen and that she was cooking when someone shot out her window. She said that a Chrysler 300 was in a ditch, that she saw a "gold-looking" older car, and that "this gold car come back up the street and shot at them again after my window was broke out." In the third call, which was made by an unidentified female at 5:40:43 p.m., the caller reported the shooting and stated that she saw teenagers arguing "up the street."
Detarius Curry testified that about 5:30 p.m. on September 24, 2012, he and the appellant were at Curry's brother's house when Curry received a telephone call from the appellant's girlfriend, Holly Hobbs. Hobbs and the appellant had a young daughter, and Hobbs told Curry that "there was a guy down the street trying to fight our little cousin[, ] Little Man." Curry said he and the appellant left to "go check it out." They got into the appellant's car, a Mercury Cougar, with the appellant driving and Curry sitting in the passenger seat. Curry said that they were less than one mile from their cousin and that it took less than two minutes to get to the incident on Barkwood Drive. When they arrived, Curry saw a lot of people standing on the street and pointing at Tammy Earp's Chrysler 300. Hobbs was in the crowd and arguing. Curry said that Clinton Hunter, also known as "Little Man, " was present but "wasn't really saying anything."
Curry testified that the appellant stopped the Cougar in front of Earp's Chrysler as Earp was getting into the car. Curry and the appellant got out of the Cougar. Curry said that Earp could not move the Chrysler forward because the appellant's car was blocking it and that Earp "[threw the] car in reverse." As Earp began to back up the Chrysler, the appellant started shooting at it. The appellant fired two or three shots and moved "[a] little toward" the Chrysler as he was firing and the car was backing up. The Chrysler went into a ditch, and the appellant stopped shooting. Curry said that he and the appellant got back into the Cougar to leave and that the appellant was driving. As they pulled away, the appellant told Curry to "lean back." Curry leaned back in the passenger seat, and the appellant reached across Curry's chest and "fired a couple more shots." The appellant drove away, dropped off Curry, and said he was going to hide his car. Curry said that he was not mad at the people in the Chrysler at the time of the shooting and that he was in shock when the appellant shot at the car. Curry did not say anything to the appellant or try to stop him. He said he never fired the gun.
On cross-examination, Curry acknowledged that he was a co-defendant in this case but pled guilty to aggravated assault and reckless endangerment. He said he was to be sentenced for the convictions soon but that the State had not promised him anything in exchange for his testimony. When Hobbs telephoned Curry, Hobbs did not say anything about her and the appellant's daughter. Curry said Clinton Hunter was sixteen or seventeen years old and lived on Barkwood Drive. When Curry and the appellant arrived at the scene, Curry thought he saw Evan Hickey in Earp's Chrysler. Defense counsel asked Curry, "[I]f the witnesses testified that the passenger got out [of the Cougar] and started shooting, then that would have had to been you, wouldn't it?" Curry answered, "I mean if that's what they say." He denied that a third person was in the Cougar.
On redirect examination, Curry testified that it may have looked like he fired the shots but that he did not. On recross-examination, Curry acknowledged that he would have defended Hunter and the appellant's daughter against an attack.
Officer Jesse Scott of the Clarksville Police Department (CPD) testified that on September 24, 2012, he responded to a shots-fired call in the area of Barkwood Drive. He said that when he arrived, "[t]here was definitely a lot of excitement and a lot of people running around the area." Officer Scott noticed a Chrysler 300 "off to the side of the road" and backed into a ditch. He began looking for people with weapons but did not find anyone. Officer Scott walked around the Chrysler and saw a bullet hole in the center of the driver's door. He also saw damage on the roof, just above the driver's seat. He said that Earp was "pretty frantic" and upset and that Hickey was upset but "a little more angry."
Danielle Finney testified that on the afternoon of September 24, 2012, she went to Barkwood Drive to meet Tammy Earp about a house that was for sale. Finney parked in the driveway of the home, and Earp arrived about fifteen minutes later and parked on the street in front of the house. Earp's boyfriend, Evan Hickey, was in the car with her, and Earp and Finney went into the home. As they went inside, Earp "comment[ed] that she had put a balloon on the sign the night before." Finney stated that about twenty minutes later, Hickey came into the house and said "that there was some stuff going on outside and that they needed to leave." Finney was confused, and Earp asked Hickey what was going on. Hickey said he "went down there" and "something about that balloon." All of them went outside, and Earp and Hickey hurried to Earp's car, leaving Finney standing at the side of the house. Finney went around the house to her car and noticed "something going on in the street" and "a lot of really angry people."
Finney testified that the people were standing in front of Earp's car and "were yelling, and mad, and calling them racists and saying that the boyfriend had came down and said something inappropriate; everyone was screaming and mad about that." The crowd's anger was directed at Hickey, who was in the Chrysler by that time, and Finney saw a young blonde woman "just as mad as everyone else." Finney said she heard a "general statement" about "somebody was coming and . . . they'll get it when they get here." Earp got into her car. As Earp started backing up the Chrysler, Finney saw a gray car pull up and stop behind the Chrysler. Three men got out of the gray car. Finney said that Earp backed the Chrysler into a ditch and that "the next thing I know I'm standing there watching somebody shooting at her car." Finney said she decided that she "needed to get out of there, " jumped into her car, and "made a donut" in the yard. She said that the gray car passed her as she was leaving and that a few more shots were fired toward the Chrysler. Finney said that she could not see whether the driver or the passenger of the gray car fired the shots but that she "assume[ed] the passenger." The next day, the police showed Finney a six-photograph array, and she identified the shooter. The State asked Finney whom she identified, and she answered, "Well up until this moment I didn't know his name." The State asked Finney, "[D]o you see him in court today?" Finney answered that "it's been a year ago and I'm not sure if that was the same person or not to be perfectly honest." The State showed Finney the array she viewed the day after the crimes, and she said, "Yeah, that was the shooter. I believe."
On cross-examination, Finney testified that about ten to fifteen people were standing on the street. Finney said that the people were angry at Hickey and that she "gathered . . . that he had obviously walked down there and said something he shouldn't have said." She said Hickey was sitting in the passenger seat of the Chrysler and "seemed a bit scared." Finney acknowledged that she gave a statement to police on September 25, 2012. In the statement, she said the following: While she was waiting for Earp to arrive, she saw an older model gray Cougar drive by the house a few times. Later, the car "screeched to a halt, " three African-American males got out, and the men started arguing along with the crowd. Earp told them that she was going to call the police, and one of the males pulled out a pistol and began shooting at Earp as she was backing up the Chrysler. The man continued to shoot at the Chrysler until Earp backed into the ditch. The three males got back into the Cougar and left. However, as the Cougar passed Earp's Chrysler, the passenger in the Cougar "hung out" and fired three more times. Finney said she did not know Detarius Curry and had never seen him before trial.
On redirect examination, the State asked Finney if she was in a position to have seen someone "hanging out the passenger side shooting." Finney answered, "I honestly wouldn't have been in a position to have actually seen someone hanging out of the car because I would have been turning out. I think I just saw the -- like someone hold the gun out and shoot, not necessarily hanging their body out of the car."
Danita Johnson testified that on September 24, 2012, she was driving to visit a friend on Barkwood Court and "came up in the midst" of the altercation. Johnson, who was stopped at a stop sign and facing Barkwood Drive, saw "a lot of people in the road." She said she saw a person shooting at two other people, who were trying to get into a car. A woman got into the car, "slammed" the car into reverse, and lost control, driving the car into a ditch. Meanwhile, the people in the street scattered. Johnson saw a second car drive by and saw the passenger hanging out of the window. The passenger fired three more shots toward the first car. Johnson identified the appellant in court as the person who fired both sets of shots.
On cross-examination, Johnson testified that as she pulled up to the stop sign, she saw a young, white woman. The woman was "irate" and yelling at Earp, who was in the Chrysler. A young African-American male was trying to hold the woman back. Johnson estimated that she was 100 feet from the second car as it drove by with the passenger hanging out of the window. She said that before trial, she looked up the appellant's photograph on the Montgomery County Sheriff Department's website.
Evan Hickey testified that on September 24, 2012, he and his girlfriend, Tammy Earp, went to Barkwood Drive because Earp was trying to sell a house there. When they pulled up to the house, Hickey noticed that the balloon from Earp's sign was missing. Earp went inside the house with Danielle Finney, and Hickey looked down the street and saw the balloon tied to a scooter. The scooter was lying on its side on the street about four or five houses away. Hickey walked to the scooter and tore the balloon string off the handle bar. Two boys were playing basketball nearby, and one of them yelled at Hickey. Hickey told him, "[M]an, I just came down here to get my balloon." The boy told him that "that's our balloon, " and ...