Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 14, 2015
Direct Appeal from the Criminal Court for Davidson County No. 2002-B-1184 Cheryl Blackburn, Judge
A Davidson County jury convicted the Defendant, Samuel L. Giddens, Jr., of reckless homicide, attempted especially aggravated robbery,  and aggravated burglary, and the trial court sentenced him to an effective sentence of fourteen years in prison. The Defendant appealed his conviction and sentence, and this Court affirmed the trial court's judgments. See State v. Samuel L. Giddens, Jr., No. M2005-00691-CCA-R3-CD, 2006 WL 618312, at *1 (Tenn. Crim. App., at Nashville, Mar. 13, 2006), perm. app. denied (Tenn. June 26, 2006). After filing several motions, all of which were dismissed or denied, the Defendant filed a motion pursuant to Tennessee Rule of Appellate Procedure 36.1 seeking to correct an illegal sentence. The trial court denied the Defendant's motion. On appeal, the Defendant contends that the trial court erred because he should be awarded additional pretrial jail credits. He further contends that his sentence for attempted especially aggravated robbery is not constitutional as it violates provisions against Double Jeopardy and that the resulting sentence is, therefore, not authorized. After a thorough review of the record and applicable authorities, we affirm the trial court's judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.
Samuel L. Giddens, Jr., Nashville, Tennessee, pro se.
Herbert H. Slatery, III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Glenn R. Funk, District Attorney General; Kathy Morante, Assistant District Attorney General, for the appellant, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
ROBERT W. WEDEMEYER, JUDGE
I. Facts and Procedural History
This case arises from the burglary and shooting death of the victim, Larry Gamble. The Defendant was indicted for one count of first degree premeditated murder (Count 1), one count of felony murder (Count 2), two counts of especially aggravated robbery (Counts 3 and 4), two counts of attempted first degree murder (Counts 5 and 7), one count of attempted especially aggravated robbery (Count 6), one count of aggravated burglary (Count 8), one count of possession with the intent to sell over .5 grams of a Schedule II substance (Count 9), and one count of unlawful possession of a Schedule VI substance (Count 10).
In our opinion on the Defendant's appeal of the dismissal of his petition for post-conviction relief, this Court provided a brief summary of the evidence presented at trial:
Police responded to a call at an apartment, where they found Kevin Johnson holding a bloody cloth against his stomach. Johnson told officers that he and others had been shot. Officers found in the apartment another man who had been shot in the back, and a third man, Larry Gamble, who was dead, lying on top of the [Defendant], who was still alive.
Johnson testified that he was at the apartment with Charles Duane Thomas, Gamble, his mother, and his two nieces, when he heard a knock at his door. Johnson answered and saw John W. Brewer, III, the [Defendant's] co-defendant, at the door. Brewer asked Johnson for cocaine, and Johnson responded that he did not have any. Johnson admitted that he had previously sold drugs from his apartment. Johnson said he saw the [Defendant] standing in the driveway, and he asked Brewer who was in the driveway. At this point, Brewer pulled out a gun, pointed it at Johnson, and said "get down, . . . you know what this is." Johnson complied, and the [Defendant] came onto the porch displaying a gun. Brewer demanded money, and Johnson gave him the contents of his pockets. Johnson said he informed Brewer and the [Defendant] that the apartment contained multiple people, Brewer told him to be quiet or Brewer would kill everyone. Brewer then put his gun to Johnson's side, the [Defendant] put his gun to the back of Johnson's head, and the three men entered the apartment.
Inside, Brewer asked Johnson for money, pushed him to the floor, and told everyone not to move or he would shoot. Brewer told Johnson to search Thomas, during which time Brewer pointed the gun alternatively at Gamble and Johnson. Gamble jumped across the table in an attempt to take the [Defendant's] gun, and Brewer started shooting. Johnson tried to grab Brewer, and Brewer shot him. Johnson fell back and heard three more gun shots. He assumed Brewer was out of bullets when the shooting stopped, so he tried to grab Brewer, who ran out of the back door. Johnson called 911 and then collapsed.
Thomas, who was sleeping when Brewer and the [Defendant] came into the apartment, was awakened when the [Defendant] told Thomas to get on the ground. Thomas complied and heard two mens' voices and felt someone pat him down and take his wallet. Thomas saw Gamble jump up and grab the [Defendant]. When the two men finished wrestling, Thomas saw the [Defendant's] face and saw a gun on the floor by the [Defendant] and Gamble.
When police arrived, they found the [Defendant] shot and lying underneath Gamble. The [Defendant] was transported to the hospital, where nurses found some crack cocaine and marijuana in his pockets. The [Defendant] told police that he went to Johnson's residence to purchase drugs. While waiting in the driveway, a masked man took them inside the residence at gun point and demanded money. The [Defendant] said he heard gun shots and took out a .357 magnum gun but did not recall whether he fired his weapon. Thomas was also transported to the hospital, and, after he was released, he identified the [Defendant] from a photographic line-up.
The medical examiner retrieved .22 caliber bullets from Gamble's body, and the bullet removed from the [Defendant] was a.38, .357 magnum class. The medical examiner said that both of Gamble's wounds were created by a gun fired from more than two feet away. Gamble had smoked marijuana within several hours of his death. Police did not recover the guns used to shoot Gamble or the [Defendant]. The gun they retrieved from the scene did not fire any of these bullets.
Police found near the apartment a car that looked "suspicious" because no witnesses knew to whom the car belonged and because there was mud smeared all over the license plate. Police used the Vehicle Identification Number to determine the car belonged to the [Defendant]. Both Brewer's and the [Defendant's] fingerprints were found on the trunk of the car.
Samuel L. Giddens, Jr. v. State, No. M2009-00699-CCA-R3-PC, 2010 WL 2787712, at *1-2 (Tenn. Crim. App., at Nashville, July 14, 2010), perm. app. denied (Tenn. Dec. 8, 2010).
At the conclusion of the State's proof, the Defendant moved for a judgment of acquittal as to the charges of especially aggravated robbery because the State failed to produce any evidence at trial that a theft had occurred. See State v. Samuel L. Giddens, Jr., No. M2005-00691-CCA-R3-CD, 2006 WL 618312, at *1-6 (Tenn. Crim. App., at Nashville, Mar. 13, 2006), perm. app. denied (Tenn. June 26, 2006). The trial court granted the Motion for Judgment of Acquittal on the indicted offenses, but it allowed the jury to consider the lesser-included offenses of attempted especially aggravated robbery. Id. The jury found the Defendant guilty of the reckless homicide of Larry Nathaniel Gamble, guilty of the attempted especially aggravated robbery of Charles Duane Thomas, and guilty of the aggravated burglary of the habitation of Kevin Orlando Johnson. Id. at *6.
The Defendant appealed his conviction to this Court contending that: (1) the evidence at trial was insufficient to support the jury's verdict; (2) the trial court improperly instructed the jury on the issue of criminal responsibility; (3) the Defendant's convictions for attempted especially aggravated robbery and aggravated burglary violated principles of double jeopardy; (4) the trial court erred when it allowed a witness to testify as to the alleged statement made by a co-defendant; and (5) the trial court improperly enhanced ...