Session Date: October 7, 2014
Direct Appeal from the Criminal Court for Shelby County No. 11-04531 James C. Beasley, Jr., Judge
Charles Mitchell (on appeal and at trial), Memphis, Tennessee, for the appellant Christopher Swift. Lance R. Chism (on appeal) and Larry Copeland (at trial), Memphis, Tennessee, for the appellant, Marquavious Houston.
Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pam Fleming and Reginald Henderson, Assistant District Attorneys General, for the appellee, State of Tennessee.
NORMA McGee Ogle, J., delivered the opinion of the Court, in which Camille R. Mcmullen, j., joined, timothy L. Easter, j., filed a separate opinion, concurring in part and dissenting in part.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
This case relates to the shooting of Marco Blockmon and Demarus Smith on January 17, 2011. Blockmon died at the scene, but Smith survived. The appellants were tried jointly in November 2012.
At trial, Gertrude Bolden testified that Marco "Cho-Cho" Blockmon was her son and that he repaired cars for a living. In November 2010, Blockmon brought a car to Bolden's house to be repaired. Marquavious Houston was with Blockmon. Bolden said that the car looked like it had been parked for a long time because it was covered with dead leaves and debris and that it stayed at her house for one to two weeks because Blockmon did not have the parts to fix it. Bolden said she told Blockmon that if he was not going to fix the car, he needed to "give it back." At some point, the car was moved from her property.
Bolden testified that sometime after the car was moved, Houston came to her home and claimed that Blockmon had his car and keys and would not return them. Bolden said Houston was "ranting and raving and, you know, cursing and going on, " so she told him to leave. She also told him that she would tell her son that Houston had come by the house, looking for the car and keys. Sometime later, Houston's mother, "Kim, " also came to Bolden's home. Bolden told Kim that she did not know anything about the situation but that she would get the keys from Blockmon and give them to Kim because she did not want Houston on her property anymore.
Bolden testified that on the morning of January 17, 2011, she told Blockmon that she needed him to repair her station wagon. Blockmon told Bolden that he would "get started on that, " and Demarus "Boodie" Smith arrived. Later that day, Bolden learned Blockmon had been killed. After Blockmon's death, the police showed Bolden a six-photograph array containing Houston's photograph, and she identified him as the man who came to her home, looking for the car.
On cross-examination by Houston, Bolden testified that when she asked Houston to leave, he "kept standing there for a minute cursing and going off." However, "[e]ventually, he left." At that time, the car already had been moved from Bolden's property. Bolden said she heard that Houston came to her house again, but she did not see him. She said that when she asked her son what happened to the car, he told her that he gave it back to Houston.
Chestine Blockmon, Marco Blockmon's sister, testified that in January 2011, she was living with her mother and Marco on Looney Street in Memphis. Sometime near Thanksgiving 2010, Chestine saw Houston because "they came to the house and brought a car over for [Marco] to work on." She described the car as a black Camaro and said Marco was supposed to repair it for Houston. At some point, the car was moved from the house, and Marco said he "gave it back." Subsequently, Houston came to the home, looking for Marco and wanting to know the location of the car. Chestine said Houston came to the house about three times. One time he was calm, and twice he was "loud."
On cross-examination, Chestine testified that Houston never threatened anyone and that she never saw him with a weapon. She said he "just wanted his car back and that's all he was saying."
Officer Chad French of the Memphis Police Department (MPD) testified that about 1:30 p.m. on January 17, 2011, he was dispatched to the intersection of J. W. Williams Lane and Decatur Street for a car possibly going off the road and hitting a pole. When he arrived two or three minutes later, he saw a red Crown Victoria with two occupants in the front seat. The passenger, Marco Blackmon, was unresponsive, but Officer French was able to speak with the driver, Demarus Smith, briefly before paramedics arrived. Smith told Officer French that he had been shot and that he could not move. Officer French asked who shot him, and Smith answered, "Jerry Lawler and Qua-Qua or KK." Smith said he had been chased down by Jerry Lawler and Qua-Qua, who were in a blue Saturn. Officer French saw shell casings on the ground. On cross-examination by Swift, Officer French acknowledged that it had been raining that day.
Officer John Stone of the MPD's Crime Scene Investigation Unit testified that he went to the scene and saw a car "wreck[ed] out." One deceased person, Blackmon, was in the front passenger seat, and Officer Stone saw "round bullet holes all around the vehicle." The car's windows were broken out, and the car had "heavy" front-end damage where it had come to rest. Two bullet holes were in the driver's seat, and Officer Stone saw bullet holes in the jacket Blackmon was wearing. A red substance that appeared to be blood was on the jacket. When the medical examiner arrived, he lifted Blackmon's jacket, and Officer Stone saw bullet holes in Blackmon's back.
Officer Stone testified that seven shell casings and one bullet fragment were "down the street by Decatur." The shell casings were those of 7.62x39mm ammunition. The Crown Victoria was towed to the crime scene facility and processed for evidence. Officer Stone found ten exterior holes where bullets had entered the car. He described the bullet holes as follows: three holes in the trunk lid, two holes in the rear bumper, one hole in the right rear fender, one hole in the frame around the right side of the rear window, one hole in the front passenger door, one hole in the left rear fender near the gas tank cap, and one hole in the right wheel well. Officer Stone found numerous bullet holes inside the car, including the trunk, the "firewall" separating the trunk from the passenger compartment, the back seat, the driver's seat, and the front passenger seat. He also found a bullet fragment on the dashboard in front of the steering wheel and inside a rear tire.
On cross-examination by Houston, Officer Stone described 7.62x39mm ammunition as "an assault rifle round." He acknowledged that such rounds were usually associated with AKA, SKS, or M16 weapons, which he described as high-velocity assault rifles. He said that he did not find shell casings associated with any other ammunition at the scene.
On redirect examination, Officer Stone testified that he was visually familiar with assault rifles. The State showed him a firearm, and he acknowledged that it looked like a standard assault rifle.
On recross-examination by Houston, Officer Stone acknowledged that the rifle shown was "one version of rifle that fires [7.62]." He also acknowledged that some assault rifles were made with folding stocks and that the rifles could "come in all sorts of shapes and sizes." On recross-examination by Swift, Officer Stone acknowledged that he never examined an SKS, AK47, or other type of assault rifle associated with this case.
Lieutenant Deborah Carson of the MPD Homicide Bureau testified that on January 17, 2011, she went to the hospital to speak with Demarus Smith. When she arrived, Smith was lying face-down on the ambulance stretcher. He was in critical condition and waiting to go into surgery. Lieutenant Carson asked if he knew who was responsible for the shooting, and he told her, "Qua-Qua and Jerry Lawler." Later that day, Lieutenant Carson determined that "Qua-Qua" was appellant Marquavious Houston and that "Jerry Lawler" was appellant Christopher Swift. The next day, she tried to speak with Smith again, but he was in ICU, intubated, and unable to talk with her.
Demarus Smith testified that on January 17, 2011, he planned to work on his car with Marco Blockmon, whom he had known for twenty-one years. About 11:00 a.m., Smith picked up Blockmon at Blockmon's house. Smith was driving his 1996 red Crown Victoria. Smith stopped by someone's house to pick up a tool, and Blockmon waited in the car. When Smith got back into his car, he noticed that he had missed a call from "Qua-Qua, " Marquavious Houston. Smith said he had known Houston for four or five years and that Blockmon was supposed to be working on Houston's car. Blockmon did not have a telephone, so Houston would contact Blockmon through Smith. In fact, Houston had contacted Smith several times about the car. Smith asked Blockmon if Blockmon wanted to return Houston's call, and Blockmon said he would call Houston later.
Smith testified that he and Blockmon were going to a friend's house on Lane Street so they could work on the Crown Victoria. Smith drove south on Decatur and stopped at a stop sign at the intersection of Decatur and North Parkway. A turquoise Saturn pulled up on the driver's side of Smith's car. Smith said that Houston was driving the Saturn and that Christopher Swift, whom he knew as "Jerry Lawler, " was in the passenger seat. Smith assumed Houston wanted to speak with Blockmon, so he opened his door in order for the two men to talk. Smith said, "And they had a few words, it wasn't no bad words or nothing like that at first." Blockmon told Houston that he was going to work on Houston's car later, and Houston "was like he needed to fix [the] car now."
Smith testified that he pulled away from the stop sign and that he heard gunshots. He looked behind him and saw the Saturn. He said that he saw Swift with an assault rifle and Houston with a small caliber handgun and that Swift was "[h]anging out sitting on the windowsill." Swift was on Smith's right side and was shooting directly at the Crown Victoria. Smith said that he tried to drive fast but that the streets were wet, causing his tires to spin. He said that bullets were "coming through the car, through the windows, all through my car" and that he heard ten to fifteen gunshots. Blockmon told Smith that he had been "hit" and passed out. Blockmon then "come back to his senses throwing up blood." As Smith prepared to turn right on J. W. Williams Lane, a bullet hit his lower back, and the right side of his body went numb. He said his car "jumped the sidewalk" and crashed into a telephone pole.
Smith testified that as his car stopped, he heard four or five more gunshots from the Saturn. He said that he telephoned his wife, who called 911, and that he called his mother. Someone named "Eric" walked up to his car and told Smith's mother that Smith had been shot. Paramedics arrived, put Smith onto a stretcher, and cut off his clothes. In addition to having been shot in the back, he had been shot in the shoulder. Blockmon was deceased.
Smith testified that he spent almost two months in the hospital and that he had four surgeries. On January 24, 2011, the police showed him two photograph arrays, and he identified the photograph of "Qua-Qua" in the first array and "Jerry Lawler" in the second array. While he was in the hospital, he learned that Qua-Qua's real name was Marquavious Houston and that Jerry Lawler's real name was Christopher Swift. After Smith got out of the hospital in March 2011, he received his cellular telephone from a detective. Smith checked his phone and discovered that about thirty minutes before the shooting, Houston left him a voice message. Smith listened to the message. Smith stated that in the message, Houston said he had just seen Smith and Blockmon. Houston told Smith to ask Blockmon what Blockmon was going to do because Houston wanted his car fixed. Houston stated that if Blockmon did not fix Houston's car, Houston had "something" for Smith and Blockmon. Smith said he returned his phone to the police. The State played the voice message for the jury.
Smith testified that Swift telephoned him after he got out of the hospital but that he hung up the telephone as soon as he heard Swift's voice. Another person telephoned Smith and offered him $5, 000 to $10, 000 not to appear at the appellants' preliminary hearing. Smith said that he told the person that "[t]hey can keep their money" and that he was present at the hearing. He acknowledged that he knew someone with the nickname "White Boy" and said that White Boy "had words" with him about this case. He denied that White Boy's parents offered him money not to come to court. He acknowledged that he had one prior conviction for reckless homicide in 2010, two prior convictions for attempted voluntary manslaughter in 2006, and several prior drug convictions. At the conclusion of his testimony, Smith identified Houston and Swift in court as "Qua-Qua" and "Jerry Lawler, " respectively.
On cross-examination by Houston, Smith testified that before Houston took the Camaro to Blockmon, Houston asked Smith if Blockman did good work. Smith told Houston yes. Smith acknowledged that one time, he and Houston went to Blockmon's house, looking for the car. The Camaro was there, and Houston was calm and did not threaten anyone. However, sometime after that, Houston left a threatening message on Smith's phone. Smith said that by "threatening, " he meant that Houston "was saying that I had something to do with [Blockmon] doing this, doing that, that I'm going to get it too, you know." He acknowledged that Houston never threatened to shoot him and said that Houston did not have a "quick" temper. He also acknowledged that Houston held him responsible for the loss of Houston's car.
Smith testified that when the Saturn pulled up beside him at the stop sign, Swift, who was in the passenger seat, was closer to him than Houston. He said Houston was "a little hostile that day. I guess he was tired of playing cat and mouse with [Blockmon]." Smith said Houston had been looking for Blockmon constantly and could not contact him, "[s]o I guess he was hot once he saw him in the car with me that day. You know, he was already fired up." Smith said that he pulled away from the stop sign because he was not involved in the situation and because Houston should not have had a problem with him. About ten seconds later, he heard an automatic weapon fire ten to fifteen shots. He said he looked in his rearview mirror and saw Houston and Swift shooting at the Crown Victoria. Houston was holding a handgun out of the driver's window with his left hand and driving the Saturn with his right hand. Smith saw the muzzle of Swift's automatic weapon flashing from Swift's firing it. Smith could not duck down because he was driving. After he wrecked the Crown Victoria, he heard four or five more shots from an automatic weapon. He said that after the shooting, Houston did not offer him money but that "[i]t was one of their friends or something." He acknowledged that Houston never contacted him after the shooting, and he denied talking to anyone in Houston's family.
On cross-examination by Swift, Smith acknowledged that on January 19, 2011, he gave a recorded statement to Sergeant Connie Justice at the hospital. He also acknowledged that he told Sergeant Justice that he had known Houston for ten years, not four or five years. Smith explained, "I've been familiar with him four or five years. I've been knowing his family for ten years." Smith said that prior to January 17, 2011, he had spoken with Swift but had never "associated" with him. At first, Smith denied talking with Swift or having a conversation with him after the shooting. However, Smith then stated that they had "[a] [f]ew words, if [that's] what you call a conversation."
Roshakita Irving, the mother of Houston's child, testified that in January 2011, she lived in Oxford, Mississippi, and owned a blue Saturn. On January 17, Houston had Irving's car. About 10:00 p.m., he came to Irving's home, where she was living with her mother, and told Irving that "he had just got in an altercation with Boodie and Cho-Cho." Houston also told Irving that "something was said about his car and . . . his car was supposed to be fixed on by Boodie or Cho-Cho" and that a shooting had occurred. Irving said that Houston stayed with her for four or five days. One day, they were watching the news on television, and Irving saw a picture of a red Crown Victoria and heard about a shooting. She asked Houston if that was the car involved, and he said yes. He also told her that he had been driving the Saturn at the time of the shooting. Irving and Houston looked on the computer to see if the police had a warrant for Houston's arrest, but no warrant had been issued. Later, they checked the computer again for a warrant, and a warrant had been issued. Houston was going to turn himself in to the police. In March 2011, Irving was subpoenaed for a hearing involving Houston. Houston told Irving to "plead the Fifth." He also told her to "[p]lead the Fifth" at trial.
On cross-examination by Houston, Irving testified that she never wanted to testify against Houston and that she asked him how she could prevent herself from having to testify. She acknowledged that he then told her to "plead the Fifth." When Houston came to Oxford after the shooting, he told Irving that he did not have a weapon or fire a weapon that day. She acknowledged telling police that, according to Houston, the shooting occurred after Demarus Smith exchanged words with another person and then Smith said something to that person. She also acknowledged that Houston told her that he did not intend for anyone to get hurt and that he had only wanted his car returned to him.
Survonder Smith, Demarus Smith's wife, testified that about two days after the shooting, her husband was still in IC U.Someone approached her and asked if her husband would accept $5, 000 not to testify. When she said no, the person offered $10, 000. On cross-examination by Houston, Mrs. Smith testified that the person's name was "Derrick" and that she and her husband turned down Derrick's offers. On cross-examination by Swift, Mrs. Smith testified that she did not know Derrick or who sent him.
Robert Sims testified that his nickname was "White Boy." He said that in March 2011, Houston asked him to contact Demarus Smith and talk to Smith about not coming to court. Sims told his mother to offer Smith $10, 000. On cross-examination by Houston, Sims testified that he did not know Houston personally but had known of him for years. On cross-examination by Swift, Sims said he had never gone by the name Derrick.
Sergeant Connie Justice of the MPD's Homicide Bureau testified that she was the coordinator for this case. On the day of the incident, she determined that the suspects were "Qua-Qua" and "Jerry Lawler" and that "Qua-Qua" was Houston and that "Jerry Lawler" was Swift. Two days later, she created two, six-photograph arrays containing Houston's and Swift's photographs and showed them to Demarus Smith. Smith identified both appellants. Sergeant Justice learned that Houston's cellular telephone was registered to Shannon Marshall in Oxford, Mississippi, and that Marshall was Roshakita Irving's mother. Officers went to Marshall's home and saw a Saturn that matched the description of the suspect car.
Sergeant Justice testified that Irving answered the door, allowed Sergeant Justice into the home, and provided Sergeant Justice with information about the crimes. Irving also allowed Sergeant Justice to search the Saturn. Sergeant Justice did not find any weapons, ammunition, or shell casings in the car. At some point, Sergeant Justice learned that telephone calls had been made to Smith, offering him money. She also became aware of jailhouse telephone calls made by Swift and Houston that were related to this case. On the day of the appellants' preliminary hearing, Smith told Sergeant Justice about a voice message on his cellular telephone.
On cross-examination by Houston, Sergeant Justice testified that she did not have the Saturn analyzed for gunshot residue. On cross-examination by Swift, Sergeant Justice testified that on January 29, 2011, she took a statement from Smith at the hospital. The statement was recorded with a digital recorder and transcribed, but Sergeant Justice did not know the location of the recording. She acknowledged that the police eventually arrested Swift for his involvement with this case. Sergeant Justice advised Swift of his rights, and
Swift waived them. He denied having any knowledge of the shooting and told her that he knew Houston but had not seen him recently. Sergeant Justice acknowledged that a weapon was never recovered in this case and that she never obtained a search warrant for Swift's residence. On the day of the appellants' preliminary hearing, Smith advised Sergeant Justice about a voice message on his telephone. Sergeant Justice had had possession of Smith's telephone after the shooting. However, she had been unable to access his voice messages because she did not have the "pass code."
Teri Arney, a special agent forensic scientist with the Tennessee Bureau of Investigation (TBI), testified as an expert in firearms identification that she conducted ballistics testing and made comparisons on evidence collected in this case. She said that she received seven fired cartridge cases and that all of them came from 7.62x39mm ammunition, which was typically fired from semiautomatic or automatic rifles such as an SKS, AK47, or AKM rifle. She said those rifles fired ammunition at higher velocities than pistols. Agent Arney also examined eight bullet fragments recovered from Blockmon's body and Smith's Crown Victoria. Four of the fragments contained bullet jacket fragments, which allowed her to compare them under a microscope. She determined that all four had been fired from the same firearm. The remaining four did not have any markings for comparison, so she was unable to determine whether they had been fired from the same weapon. She stated that the stocks of some automatic weapons could be folded. Also, a person could cut off the stock. Therefore, the size of an automatic weapon could "vary a lot." She said the length of an unaltered assault rifle was about twenty-six to thirty inches.
On cross-examination by Houston, Agent Arney testified that a person could cut off both the stock and barrel of an automatic rifle, making the rifle much smaller than a normal assault rifle. She acknowledged that 7.62mm ammunition was more likely to travel through "a combination of obstacles such as steel, cloth, steel" than ammunition for a forty-caliber or nine-millimeter weapon and said that 7.62mm ammunition "could potentially go through more barriers." On cross-examination by Swift, Agent Arney testified that she was not aware of any handguns that fired 7.62mm ammunition.
Dr. Miguel Laboy, an assistant medical examiner for Shelby County, testified that he performed Blockmon's autopsy. Blockmon had a gunshot wound in his back. The bullet perforated his left lung and lacerated his heart, and blood accumulated in his left chest and along his heart. Blockmon also had a gunshot wound in his right forearm, and his right radius was fractured. Dr. Laboy found bullet fragments in Blockmon's heart and superficially embedded in his left shoulder. He said Blockmon also had superficial lacerations and abrasions on his back and left flank and tested positive for marijuana. Dr. Laboy concluded that the gunshot wounds to Blockmon's back and right forearm caused his death.
Juaquatta Harris of the Shelby County Sheriff's Department testified that she was responsible for downloading telephone calls made by jail inmates. At the prosecutor's request, Harris retrieved telephone calls made by the appellants.
The State played portions of the calls for the jury. During a call made by Houston, Houston's mother told him that she had tried to call someone every day but that "[he] ain't answer." Houston stated, "I had got White Boy to call him, but they don't answer." In another call, Roshakita Irving told Houston that she did not want to testify against him but that she did not have any choice. Houston told Irving that if she testified at trial, "I'm gone." He also told her that she could "plead the Fifth."
In a call by Swift, an unidentified male answered, and Swift asked to speak to "Boodie." The male asked, "Who this?" Swift answered, "Lawler, man." Swift told the male that someone was supposed to call him, and the male stated, "Alright." The call then ended. In another call from Swift, an unidentified male answered, and Swift again asked for "Boodie." The male stated, "He ain't here right now." In a second call made immediately thereafter, Swift told a second unidentified male that he was going to court the next day, that he had just tried to call "Poo Puddin, " and that "it sounded like him on the phone." In a call the next day, Swift told an unidentified male that "he showed up." The male stated that "[he] would have did that anyway, with or without the money, fool." After playing the recordings, the State rested its case.
Kenya Gaines, Houston's mother, testified for him that she went to Blockmon's house several times, looking for her son's car. The car was never there and was never returned to Houston. Gaines ...