Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs November 18, 2014
Appeal from the Criminal Court for Knox County No. 98218B Bob R. McGee, Judge
J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Jaron Harris.
Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Charme Allen, District Attorney General; and Ta'Kisha Fitzgerald, Assistant District Attorney General for the Appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which John Everett Williams and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
I. Background and Facts
This case arises from the shooting death of Sawyer Webb ("Victim Webb"), on October 13, 2011. A Knox County grand jury indicted the Defendant and a co-defendant, Devin Jamison, for two counts of especially aggravated kidnapping, two counts of aggravated robbery, four counts of felony murder, one count of first degree premeditated murder, one count of attempted first degree premeditated murder, two counts of employing a firearm during the commission of a dangerous offense, and two counts of aggravated assault.
At a trial on the charges, the parties presented the following evidence: Jessica Lupek testified that, on October 13, 2011, she was visiting her boyfriend, Sean Drewery, at his apartment at the Grand Forest apartment complex. Mr. Drewery shared apartment 107 with three other men, Phillip Gentis, "Cody, " and "Wes." She said that she and Mr. Drewery were outside smoking when she observed a green SUV drive by the apartment complex and return and enter the complex traveling "the wrong way." The green SUV passed Mr. Drewery's building and then stopped. The occupants of the green SUV called Mr. Drewery over to the vehicle and asked if he knew where they could "get any weed." She stated that she thought it was odd for someone to ask a "random person on the street" where to obtain illegal drugs.
Ms. Lupek testified that she observed two men in the front of the SUV and "shadows" moving in the back of the vehicle. After speaking with Mr. Drewery for several minutes the men in the green SUV drove away. Ms. Lupek said that she and Mr. Drewery had taken down the vehicle model, make, and tag number. The two returned inside the apartment and told Mr. Gentis about their interaction with the occupants of the green SUV and then left the apartment again to go to "McKay's." As they left, they noticed that the green SUV had circled back around, and the occupants were now talking to another couple several apartment buildings down.
Ms. Lupek testified that, while at McKay's, Mr. Gentis called to say that "something had happened and [they] needed to get back [to the apartment] as soon as possible." Ms. Lupek said that, after speaking with Mr. Gentis, they left McKay's "immediately." Ms. Lupek identified a photograph of the green SUV that she had seen at Grand Forest apartment complex on October 13, 2011.
Sean Drewery testified that, on October 13, 2011, he and Ms. Lupek planned to go shopping. While still at his apartment he observed a green SUV pull into the complex. The occupants called out to him, and he initially pretended not to hear them. The men continued asking Mr. Drewery to approach the vehicle, and he eventually complied. He described the men as "straightforward, " asking him about where drugs could be purchased. Mr. Drewery said that the men pointed to different buildings indicating that they had been told they could "get stuff" at those locations. Mr. Drewery told the men that, due to a recent outbreak of robberies and burglaries in the complex, "everybody" was on "real high alert." As such, he did not believe that anyone was "doing anything at the time." The men continued to question Mr. Drewery until he terminated the conversation and returned to his apartment. He said that this incident "raised [his] suspicion, " so he notified his roommate of his interaction with the occupants of the green SUV.
Mr. Drewery testified that, as he and Ms. Lupek left the apartment complex to go shopping, he saw the green SUV driving through the complex again. He called his roommate, Mr. Gentis, and asked him to call "all of [their] friends" and warn them to lock their doors. While shopping, Mr. Drewery received a telephone call from Mr. Gentis informing him that investigators were waiting to speak with him at the apartment. Mr. Drewery identified a photograph of the green SUV that he had seen at Grand Forest apartment complex on October 13, 2011.
Philip Gentis testified that, on October 13, 2011, he resided at the Grand Forest Apartments. He stated that he knew the residents of apartment 322 as "Rhett, Nathan, and Sawyer [Webb]." He explained that his roommate, Mr. Drewery, had told him about a green Nissan Xterra that had been in the parking lot the night before and was again in the parking lot "looking for some kind of drug or [m]arijuana." Mr. Gentis said that, when he left his apartment to warn other residents about the suspicious vehicle, he noticed a green Nissan Xterra in the parking lot parked behind a light-colored Tahoe. When he returned from warning others, he noticed that police were present.
Mr. Gentis testified that, before he left his apartment to warn other residents, he spoke with Victim Webb. He said he saw Victim Webb walking through the complex and called him over to the front door of his apartment. Mr. Gentis pointed out the green Nissan Xterra in the parking lot to Victim Webb and then urged him to " [g]o home and be careful, lock your door, don't answer your door." Victim Webb agreed and left. Mr. Gentis then went to two other apartments to warn the residents of the suspicious vehicle. It was after he returned from the other two apartments that he saw the police. Mr. Gentis said that he approached the police and cooperated with the investigation.
On cross-examination, Mr. Gentis testified that he was aware that Victim Webb was a "drug dealer." He denied any involvement in drug dealing. Mr. Gentis said that a white male was the occupant of the Tahoe. He could not describe the occupant or occupants of the green Nissan Xterra due to the "heavily tinted" windows but estimated that there were two to four black men in the SUV.
Michael Mays, a Knox County Emergency Communications District employee, testified that he served as the records manager and identified a copy of a report and an audio-recording of the October 13, 2011, 911 call concerning a shooting at apartment 322 in the Grand Forest Apartments. According to the CAD report, the 911 call was received at 6:05 p.m., and the first police unit arrived at 6:08 p.m. The audio recording was played for the jury. On the audio recording, a female can be heard requesting medical assistance for her neighbor, Victim Webb, who had been shot. She could provide no other information and dispatch requested she find someone who could provide more information. A male voice can be heard on the recording and he identified himself as Victim Webb's roommate. He explains that he was in the shower when he heard gunfire. When he emerged from the bathroom, he found Victim Webb and another man had been shot. He could not identify where Victim Webb had been shot, but he indicated that Victim Webb was in the caller's "friend's closet." The other man had been shot in the leg.
Beth Goodman, a Knoxville Police Department evidence technician, testified that she photographed the crime scene and collected evidence. She identified photographs taken of the apartment. She recalled that Victim Webb was inside a closet in one of the bedrooms when she arrived. Ms. Goodman stated that she photographed bullet holes in a door and a wall of the apartment. Additionally, she collected four shell casings, all the same caliber, and a bullet fragment. A bullet that had traveled through the wall was found lodged in a dresser in the adjoining apartment.
Ms. Goodman testified that after the completion of the autopsy, she collected from the Forensic Medical Center a bullet that was recovered from the Victim Webb's chest and a bullet that was recovered from his back. She also recovered Victim Webb's clothing. Inside the pocket of the pants Victim Webb was wearing at the time of the shooting was a plastic bag containing twenty-four grams of marijuana and a wallet containing $434.00 in cash.
Devin Jamison testified that he was charged with the same crimes as the Defendant. He agreed that, through his attorney, he had reached an agreement with the State as to the disposition of his charges. As part of the agreement with the State, he had agreed to testify truthfully as to the events of October 13, 2011. Mr. Jamison testified that he met up with the Defendant outside the Bi-Lo grocery store. Mr. Jamison got into the Defendant's Xterra and the men drove around for several hours smoking marijuana and listening to music. The Defendant drove, A.D. was in the front passenger seat, and Mr. Jamison sat in the back seat behind the passenger. The Defendant asked Mr. Jamison if he wanted to go "half on another sack." Mr. Jamison agreed to split the cost of an eighth of marijuana with the Defendant. They drove "towards" Grand Forest where they asked "[t]he first people" about buying marijuana. When those persons were unable to help, they drove on.
Mr. Jamison said that, about five or ten minutes later, they approached a Caucasian man in a tan SUV. The man, later identified as Will Roser ("Victim Roser"), initially denied having any marijuana but then instructed the men to follow him. Mr. Jamison said they followed Victim Roser's SUV "to a little spot on Kingston Pike called the Towers." Victim Roser showed Mr. Jamison the marijuana and then said he would go "upstairs" and weigh it, inviting Mr. Jamison to join him. Mr. Jamison explained to Victim Roser that he and the Defendant were both purchasing the marijuana. The Defendant exited the Xterra and examined the marijuana. Mr. Jamison said that Victim Roser seemed "hesitant" when both he and the Defendant were out of the car. After handing the marijuana back to Victim Roser, the Defendant pulled a nine-millimeter black gun out from his pants, pointed it at Victim Roser and stated, "we need everything, we need everything." Victim Roser threw up his hands and told the Defendant he could have the marijuana. He then told the Defendant that he could get more marijuana. Victim Roser got into the front seat of the Xterra with A.D. driving, and the men returned to the Grand Forest Apartments.
Mr. Jamison testified that, once at Grand Forest Apartments, he and the Defendant followed Victim Roser up a set of stairs to an apartment. A man, later identified as Rhett Barragan, answered the door and Victim Roser stated about the Defendant and Mr. Jamison, "they good, they with me." The three men entered the apartment and Mr. Barragan shut the door and locked it behind them. According to Mr. Jamison, all four men went to a back room where they looked at "different weed." They then moved to a different room to weigh the marijuana, and the Defendant pulled his gun out from his pants and said, "We need everything." Mr. Jamison said that he went "for the weed" to "get everything bagged up and make [his] way out."
Mr. Jamison testified that he interpreted the Defendant's statement, "We need everything, " to mean that they were robbing these men. After the Defendant made this statement, Mr. Barragan, the man who had answered the door, stated, "Give them everything." The other men in the room complied, however, Victim Webb "pulled out a gun and cocked it back." Upon seeing Victim Webb with a gun, Mr. Jamison fled the apartment, hearing gunshots as he unlocked the front door. Once they were back in the Xterra, Mr. Jamison asked the Defendant what had happened and the Defendant responded, "it's good, everything good, everything good, like nobody didn't get shot." Mr. Jamison said that he asked to be taken back to his vehicle. After the Defendant switched vehicles with his mother, he returned Mr. Jamison to his car. Mr. Jamison testified that the Defendant took approximately an ounce of marijuana from Victim Roser while they were at the Towers. He said that he smoked the marijuana he took from the apartment. When asked if Victim Roser was free to get out of the Xterra and leave, Mr. Jamison stated, "I mean, I guess not, no. . . . I guess cause he felt like he had a gun at him first." Mr. Jamison said that he was arrested for his involvement in these crimes approximately a week later.
Mr. Jamison testified that he had prior misdemeanor convictions and arrests for driving on a suspended license, unlawful possession of a weapon, simple possession, traffic charges, reckless driving, criminal impersonation, and robbery. Based upon his past experience with the police, Mr. Jamison agreed that he knew that he did not have to speak with police but that he willingly did so and admitted his involvement. He explained that he did so because he "thought [his] name was brung up by somebody else because [he] was on the ...