Appeal from the Criminal Court for Shelby County No. 11-01466 Chris Craft, Judge
Stephen Bush, Shelby County Public Defender; Phyllis Aluko, Assistant Public Defender (on appeal); and William Yonkowski, Assistant Public Defender (at trial), for the appellant, Donnell Tunstall.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy Weirich, District Attorney General; and Marianne Bell, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
TIMOTHY L. EASTER, JUDGE
After a three-day trial, a Shelby County jury found Defendant guilty of attempted second degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault. Before the trial began, the court held a hearing on the State's potential introduction of evidence of other acts, under Tennessee Rule of Evidence 404(b), specifically evidence regarding the previous arrest of Defendant for the murder of the victim's brother. The State argued that this evidence was relevant for identification of Defendant and for Defendant's intent. The State also argued that evidence of the victim's state of mind regarding the prosecution of Defendant for the homicide was relevant to rebut any defense suggesting that the victim fabricated the entire incident for retribution against Defendant. Defendant argued that the State should not be allowed to introduce any evidence that Defendant was previously charged with the murder of the victim's brother because this evidence was impermissible other act evidence and unfairly prejudicial. After much discussion, the court ruled that the State could introduce evidence limited to the fact that Defendant was previously arrested for the homicide of the victim's brother. The court also decided that it would require a limiting instruction, informing the jury that the charge was dismissed by the State and not presented to the grand jury for indictment. The court would not allow the State to introduce any additional details of the homicide.
The State began its case-in-chief with the testimony of the victim, Lawyer Carter. Mr. Carter was an unmarried, thirty-three year-old line operator who lived with his four minor children in Shelby County. He admitted that he was previously convicted of unlawful possession of marijuana with intent to manufacture, sell, or deliver. He was also convicted of theft of property valued over $1, 000. In October 2010, during the events that follow, Mr. Carter was also living with his fiancée, who died prior to the trial.
Mr. Carter testified that on October 8, 2010, he left work and drove home before 6:00 p.m., while it was still light outside. On his way home, at the intersection of Pillow and Ethlyn streets, Mr. Carter saw Defendant and "a few more guys" standing in a group. Mr. Carter observed the group and kept driving home. He denied speaking to or making any gestures to Defendant. Mr. Carter and Defendant had grown up in the same neighborhood. Further, Mr. Carter told the jury during his direct examination that he was familiar with the Defendant because Defendant "was locked up for killing [Mr. Carter's] brother back in '07."
When Mr. Carter got home, his fiancée asked him to go to the store to buy milk and drinks for dinner. He left for the store by himself. While driving down Ethlyn Street, he stopped and spoke to a friend. At mention of Defendant during the conversation, Mr. Carter said, "F-- that n--. I ain't worried about him. He's about to get indicted." He then proceeded to the store. After completing his purchase, he drove around a few corners in the neighborhood before returning home.
According to Mr. Carter, he was driving on Silver Street between 6:30 p.m. and 7:00 p.m., while the sun was going down. During this time, he saw Defendant walking toward the driveway of the place where Defendant's cousin lived. Defendant and his cousin met briefly in the backyard, and then Defendant started walking toward the street. Mr. Carter saw Defendant carrying "a big black automatic gun" in his hand. Mr. Carter could not identify the exact model of the handgun but "it was like a .45 or something." Defendant approached Mr. Carter's vehicle, which was in the middle of the street because there were vehicles parked on both sides of the road that prevented Mr. Carter's vehicle from being completely in one lane at a time. Mr. Carter stopped his vehicle because he did not want to hit Defendant in the street. Defendant cocked the gun and began threatening the victim. Defendant said something to the effect of, "I'll shoot you in the head, " to which the Mr. Carter replied, "If you're that tough, go on and shoot me then." Mr. Carter testified that he was scared. Defendant pulled the trigger, but the gun did not fire, and Mr. Carter drove off.
Expounding on the encounter, Mr. Carter said that when Defendant approached his vehicle, he came within about one and a half feet of the driver's side window. He stated that Defendant "had cocked the gun[, ] talking about he ought to shoot me in the head like he did my brother and all this stuff." Shortly thereafter, Mr. Carter recalled, "He talking about, 'I ought to shoot your bitch ass in the head like I did your brother, ' and he was talking a lot. So I said, 'Well, if you're that tough go on and do it.'" Mr. Carter denied threatening Defendant in any way. Defendant pointed the gun at Mr. Carter's head from approximately eight inches away. The car's window was rolled halfway down. He acknowledged that he was scared and afraid for his life. Defendant had a medium afro hairstyle, glasses, and gold teeth and was wearing a white t-shirt and black pants, the same outfit that Mr. Carter had seen Defendant wearing earlier on his way home from work. Defendant pulled the trigger three or four times before the victim drove away. As he left, Mr. Carter heard Defendant say, "Don't bring your bitch ass around here no more."
After the incident, Mr. Carter drove straight to his house. He first called to speak with the detective who investigated his brother's homicide, but the detective was no longer in that law enforcement division. He then called his aunt, who had adopted him when his mother died. After speaking for three or four minutes, he then called 911 as urged by his aunt. The police went to his house, and he described the incident and Defendant's appearance. The following Monday, Mr. Carter identified Defendant out of a six-photo lineup, which was introduced at trial.
On cross-examination, Mr. Carter admitted that he was a "small time weed seller." At the time of the incident, he was not driving straight back to his house from the store because he was "making blocks" around the neighborhood. He was not looking to sell any marijuana at that time, but he was simply looking to see who all was around the neighborhood. He said he did not think that Defendant would be at the house when he drove by because Defendant was somewhere else when the victim saw him on the way home from work. His cruising speed was between ten and fifteen miles per hour.
When asked why he did not drive away from Defendant immediately when he saw the gun, Mr. Carter said that he did not know what Defendant was going to do with it. Once Defendant approached him on the street, Mr. Carter stopped the vehicle because he "was going to let him shoot" while Defendant's cousin, his cousin's grandmother, and his sisters were all watching. He said that he would rather have Defendant "shoot me face to face" than in the back of the head while driving away.
Mr. Carter testified that, prior to the incident, the detective investigating his brother's death told him that Defendant would be indicted for murder. He denied that he was lying about the incident as his "way of getting even" with Defendant for his brother's murder because "that come with life[.] [P]eople die." Mr. Carter said, "I was mad, but I couldn't do nothing about it because you let the Lord and the law deal with it."
After several rounds of re-direct and re-cross examinations of the victim, the State next called Joyce Flynn, who was Mr. Carter's aunt and adoptive mother. She testified that on the evening of October 8, 2010, Mr. Carter called her on the phone and said, "You remember the guy that killed [my brother][?] [H]e just put a gun to the side of my head. The gun didn't go off. He clicked it a few times and it didn't go off." Ms. Flynn told Mr. Carter, "You know, you're blessed, and you need to call the police." The trial court admitted this testimony, over the objection of defense counsel, as a prior consistent statement of the victim. The trial court gave a limiting instruction to the jury that this testimony could not be used as substantive evidence.
The State then called Officer Ryan Thompson of the Memphis Police Department, who went to Mr. Carter's home at 7:15 p.m. after the 911 call. He recalled the following information from the victim:
He advised he was driving on Silver Street en route to his house. He made it to around the 1500 block and was approached by a male black known to him as Donnell Tunstall. And, Mr. Tunstall was wielding a black handgun and approached his driver's side and advised Mr. Carter that he was going to shoot him like he shot his brother.
Officer Thompson stated that Mr. Carter told Defendant "to go ahead and do it." Mr. Carter also reported that Defendant "attempted to cock the handgun and pulled the trigger, but the handgun didn't fire." Mr. Carter told Officer Thompson that Defendant brandished the handgun "around a foot away . . . from his head" and that he drove away after the gun did not fire. Mr. Carter described Defendant's race, height, weight, appearance, and clothing to Officer Thompson, all of which was consistent with Mr. Carter's testimony at trial. Mr. Carter also gave a description of Defendant's vehicle to Officer Thompson. On cross-examination, Officer Thompson testified that, after interviewing Mr. Carter, he drove to Silver Street but did not find any bullets, shell casings, or a gun in the vicinity.
The State then called Marvin Pender, the 911 records custodian for Memphis Police Communications. Mr. Pender authenticated the recording of the 911 call from Mr. Carter on October 8, 2010, which was then played in its entirety for the jury. During this call, Mr. Carter identified Defendant in connection with the murder of Mr. Carter's brother.
The defense began its case-in-chief with testimony from Defendant's cousin, Gerron Dockery. At the time of trial, Mr. Dockery was serving a twelve-year sentence with the Tennessee Department of Correction for facilitation of aggravated arson. Mr. Dockery also pled guilty to a Class B felony in 2006 for unlawful possession of cocaine with intent to sell. Mr. Dockery said he was outside of his aunt's house on the evening of the incident, along with Defendant, his cousin, some other family members, and kids. He had known Mr. Carter for his entire life because they were from the same neighborhood. Mr. Dockery saw Mr. Carter on the evening of October 8th. He saw Mr. Carter drive by the house slowly without stopping. No words were exchanged. According to Mr. Dockery, Defendant did not pull a gun or get in front of Mr. Carter's vehicle. Mr. Dockery remained at the house until 7:00 or 8:00 p.m. Defendant left the house an hour or two before him. Mr. Dockery stated that he remembered that evening because Mr. Carter did not often drive by the house; the event was unusual.
Defendant did not testify. The jury found him guilty as charged of all counts. The trial court merged the aggravated assault conviction with the attempted second degree murder conviction. After a hearing, the trial court sentenced Defendant to twenty-two years as a persistent offender and sentenced him to ten years for the firearm conviction as a violent offender. The sentences were ordered to be served consecutively. Defendant's subsequent motion for a new trial was denied after a hearing on August 15, 2013. Defendant then timely appealed to this Court.
On appeal, Defendant contends that there is insufficient evidence to support the jury's verdicts and that the trial court erred by admitting evidence of Defendant's prior arrest for the murder of the victim's brother.
A. Sufficiency of the Evidence
Defendant argues that the evidence presented at trial is legally insufficient to support any of his convictions. Specifically, Defendant asserts, without citing any supporting authority, that there was not enough evidence for a rational jury to find that the object pointed at the victim was actually a functional handgun-and not merely a toy gun or an unloaded handgun-beyond a reasonable doubt. The State argues that the evidence, when viewed in the light most favorable to the State, is sufficient to support a finding that the object was in fact a real gun.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A guilty verdict removes the presumption of innocence and replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, "the State is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom." State v. Elkins, 102 S.W.3d 578, 581 (2003). As such, this Court is precluded from re-weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own "inferences for those drawn by the trier of fact from circumstantial evidence." Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). "The standard of review 'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
The jury convicted Defendant of attempted second degree murder. "A knowing killing of another" is second degree murder. T.C.A. § 39-13-210(a)(1). Criminal attempt of an offense may be proven in one of three ways, where an individual:
(1)Intentionally engages in action or causes a result that would constitute an offense, if the circumstances surrounding the conduct were as the person believes them to be;
(2)Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without ...