Court of Criminal Appeals of Tennessee, Knoxville
Session January 21, 2015.
Appeal from the Criminal Court for Knox County No. 93721B Steven W. Sword, Judge.
Bruce E. Poston (at trial), Knoxville, Tennessee, and Troy L. Bowlin, II (at motion for new trial hearing and on appeal), Morristown, Tennessee, for the Appellant, Michael Lambdin.
Herbert H. Slatery, III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney General; Charme Allen, District Attorney General; and Leslie R. Nassios, Assistant District Attorney General, for the Appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.
D. KELLY THOMAS, JR., JUDGE.
This case arises from the Defendant's participation in the attempted robbery and shooting death of Vincent Presutto ("the victim") at his Knoxville apartment on December 17, 2009. Thereafter, the Defendant, along with Frederick Keith and Anthony White, were indicted for the felony murder of the victim. See Tenn. Code Ann. § 39-13-202(a)(2).
The following proof, in the light most favorable to the State, was adduced at the joint trial of the Defendant and Keith ("the co-defendant"). The victim was a small-time dealer of opiates, doing so in order to finance his addiction to the substance, and the Defendant often purchased pills from the victim. On December 17, 2009, the victim filed a prescription for pain medication and spoke with the Defendant about his supply. The two met up at a local grocery store, and the Defendant purchased one of these pills from the victim.
Later that day, White and the co-defendant were at the home of Natalie Freeman, White's girlfriend, drinking liquor when the Defendant called and said he "wanted to hang out[.]" White and the co-defendant drove to meet the Defendant, and after the Defendant got into the car with them, the group returned to Freeman's home. While en route, the Defendant and the co-defendant discussed robbing the victim of his large quantity of pills. According to White, the Defendant described the victim as "[a] pushover" and someone who could "easily [be] taken advantage of[.]"
The conversation about robbery continued once inside Freeman's home, and the group continued to drink alcohol. According to Freeman, the Defendant was angry at the victim "because [he] kept upping the price for pills, " so the Defendant wanted to rob the victim. The Defendant wanted White "to drive and . . . needed [the co-defendant] to be his muscle." The Defendant's plan was for him to get the victim to answer the door, so he could go inside the apartment, and then the co-defendant, armed, was going to "rush in after that" and appear to be robbing both the victim and the Defendant and take the victim's pills. The Defendant was supposed to return to the truck. That way, the victim would not know that the Defendant, a frequent buyer, was involved in the robbery. White was to receive some small remuneration for his driving services.
Freeman observed the Defendant pull from his pocket a silver revolver with "a six-shooter type spin on it" while he was inside her home. Prior to leaving the residence, the Defendant phoned the victim and set up the meeting. White saw the co-defendant in possession of this weapon as the three men exited the home around 11:00 p.m. At that time, the Defendant was wearing blue jeans, a t-shirt, "a camouflage type jacket that zipped up, " and a camouflage ball cap. The co-defendant was wearing blue jeans, a t-shirt, a colorful hoodie, and a blue and red toboggan.
They left in White's truck and proceeded to the victim's residence, directed to that location by the Defendant. Once there, White stayed in the vehicle while the Defendant and co-defendant went to the apartment. An SUV arrived in the parking lot, so White "backed up" his truck into another parking spot. The Defendant returned to the truck first and almost got hit by the SUV; according to White, the Defendant appeared "[s]kittish, scared" upon his return. The driver of that SUV was later able to identify the Defendant from a photographic lineup. A few more minutes passed, and the co-defendant "jumped in the truck and said,
'Go fat man. Go.'" According to White, the co-defendant was "furious" when he returned to the truck, punching the dashboard and saying that the victim fought back and that the gun "went off[.]" The Defendant said to the co-defendant, "Don't kill me." White did not see the gun on either of the men at this time.
After hearing gunshots and the victim's cries for help, neighbors arrived on the scene, and 911 was called. The police came and processed the crime scene. Both the hats worn by the Defendant and the co-defendant were discovered at the scene-the camouflage hat "just inside the door in the blood" and the blue and red toboggan on a ledge outside the apartment. The Defendant's Smith & Wesson six-shot revolver was found lying in the doorway. Although empty pill bottles were observed, no pills were found inside the residence. The bullet that killed the victim was fired in a slightly downward trajectory just outside the door, piercing the doorframe and striking the victim near the collar bone. It appeared that the victim was in a crouched position when he was hit, possibly indicating that he was trying to close the door and ...