Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Appeal from the Criminal Court for Davidson County No. 2009B1035 Steve R. Dozier, Judge
Leah R. Wilson, Nashville, Tennessee, for the appellant, Nicholas Short.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Rachel Sombrero, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
The facts adduced at Petitioner's trial were stated in this court's opinion in State v. Nicholas Short, No. M2010-01914-CCA-R3-CD, 2012 WL 1593174 (Tenn. Crim. App., May 7, 2012), perm. to app. denied (Tenn., Sept. 20, 2012). As pertinent to the issues in this appeal, the facts from trial, taken from that opinion, are as follows.
On December 9, 2008, Brandon Petty, a bail bondsman, who was driving in the area of the incident, heard gunshots. He saw two men struggling in a parking lot. He saw the victim on his knees, and a man whom he later identified as Petitioner, behind the victim. Petty testified that the victim looked like he was trying to get away. Petty testified that he saw Petitioner shoot the victim in the back. The victim was lying face down on the ground, and Petitioner was bent over him. Petty saw Petitioner pull down the victim's pants and go through his pockets. Petty got out of his vehicle, drew his weapon, and yelled at Petitioner to drop his gun. Petitioner casually walked away, then dropped his coat at the corner and ran away. Petty got back in his vehicle and drove in front of Petitioner. Petty's coworkers Tony Smith and David Fletcher chased Petitioner on foot. Petitioner stopped, but he did not comply with their commands. Smith shot Petitioner using a Taser gun, and the men apprehended Petitioner.
Smith's and Fletcher's testimony was consistent with Petty's testimony. Fletcher testified that he saw Petitioner "standing there with his arm extended out and fire coming from the front of his arm." He also observed Petitioner "maybe searching [the victim] or going through his pockets." Smith also saw Petitioner "standing over the [victim] firing rounds into the guy's back." He saw Petitioner bent over the victim, but he did not see Petitioner's hands in the victim's pockets. Both witnesses testified on cross-examination that they did not see what happened between Petitioner and the victim before they heard gunshots.
Investigators found a gun in the right sleeve of a jacket found around the corner of a building near the crime scene. The gun was empty and "in lock-back position, " suggesting that it had been fired until empty of ammunition.
Detective Robert Hanson, of the Metro Nashville Police Department, interviewed Petitioner after his arrest. Detective Hanson testified that, based on his familiarity with Petitioner's voice, he recognized Petitioner's voice in phone calls placed from the jail. Portions of the phone calls and transcripts of the calls were admitted as evidence at trial. In the first call, which occurred on December 12, 2008, Petitioner spoke with an unidentified male:
[Petitioner]: Little buddy's people I hit . . . uh, Meathead gonna come holler at you about that you feel me?
[. . . .]
MALE: Yeah, but why'd you hit dude up ...