Assigned on Briefs March 3, 2015
Appeal from the Criminal Court for Shelby County No. 12-02761 James C. Beasley, Jr., Judge
Stephen C. Bush, Public Defender, and Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for the appellant, Nicos Broadnax.
Ebony N. Dawkins, Memphis, Tennessee, for the appellant, Aaron Cook.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the Court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.
ROBERT W. WEDEMEYER, JUDGE
I. Background and Facts
A. At Trial
This case arises from the beating and robbery of Oscar Rivera, the victim, in October 2011, for which a Shelby County grand jury indicted the defendants for aggravated robbery. At a trial on the charges, the parties presented the following evidence: The victim testified that he was forty-seven years old and a restaurant owner. He recalled that on October 19, 2011, at a little after 11:00 p.m., he was walking on Macon Road towards Wells Station in Memphis, Tennessee. He explained that he had parked his truck at a Texaco station on Wells Station and, from there, walked to a nearby Mexican bakery that he found to be closed. As he walked back to his truck he heard “some noise” and turned around to see “three or four black men” behind him.
The victim testified that the men were yelling and cursing at him, so he began to run. The victim said that a gun was also aimed at him. As he ran away from the men, he stumbled and fell to the ground. The victim said that, after falling, he attempted to turn around to see the men, and one of the men hit him in the back of the head with the gun. One of the men demanded money from the victim, and the victim pointed to his back pocket where he had “a little bit over” $200 in cash. The victim said there was blood running down his face at this point. One of the men grabbed both the cash and the victim's T-Mobile cell phone. The victim said he “had no option” but to allow the men to take his belongings because they had a gun pointed at his face, and the men had beaten him. He stated that the men beat him on his head and face, leaving him in the fetal position on the ground. He remembered seeing a white car and "somebody yell[ing] something" before one of the men kicked him "on [his] testicles."
The victim testified that he was "in a bad condition, " but, when he got up off the ground, the men began running away from him. He stated that he walked toward the gas station. The victim could not provide a “general description" of his assailants but confirmed that they were “young, " "African American" men. He said that he never spoke to any of the assailants. Once he arrived back at the gas station, a “Latin person" told him that he would call an ambulance. After five minutes, the victim observed a “white person" talking with the police about the direction in which his assailants had fled. The victim confirmed that he did not know any of the men who attacked him and did not owe any of them money. The victim was taken to the hospital where he stayed overnight and was released the following day. The victim identified scars on his face and head that remained from this incident. After his release from the hospital, the victim stayed home for two weeks recuperating, unable to go to work during this time.
On cross-examination by Defendant Broadnax's attorney, the victim said that the area where this incident occurred was not well-lit. He said that he was able to run approximately eight to ten steps before he fell and that the men reached him quickly after he fell to the ground. The victim described his fall, saying that he caught himself with his arms before his face hit the ground. He stated that only two of the men beat him. The victim said that he believed he was hit in the head with a gun rather than a fist because the blow caused a laceration.
On cross-examination by Defendant Cook's attorney, the victim stated that one of the men who approached him that night wore a red t-shirt. He confirmed that he was unable to identify any of the people involved in the beating and robbery that night.
Jeffrey Bartram testified that on October 19, 2011, he was at his residence on Macon Road. He recalled that he heard "hollering and screaming" outside and looked out the window in his front door. Outside, he saw three black men standing over a hispanic man, beating and robbing him. Mr. Bartram said that he could hear the black men yelling at the victim to give them “what [the victim] got in [his] pockets." He observed the men striking the victim in the face with a silver handgun, and he watched as the men took a cell phone from the victim. Mr. Bartram called the police and then stepped outside his house and “everybody scattered." He said that two of the men ran down the opposite side of the street on the sidewalk to a house directly across the street on the corner of Wells Station and Macon Road. The third man spoke with someone in a vehicle that had pulled up before running westbound down the middle of Macon Road. Mr. Bartram said the victim remained on the ground in the fetal position after his assailants fled. The victim then got up off the ground and “staggered" toward a Texaco station down the street.
Mr. Bartram testified that, while still on the telephone with dispatch, he walked to the Texaco station to check on the victim. He found the victim inside the store of the gas station “bleeding everywhere." The dispatch operator instructed Mr. Bartram to return to his house to wait for police. The police later arrived and took Mr. Bartram to the Texaco station where the police had detained several suspects. Mr. Bartram explained that the beating and robbery occurred next to a street light, so the participants were “pretty much in the spotlight of the street light." While at the Texaco station, Mr. Bartram identified the two suspects that he had observed beating the victim. He also identified in court Defendant Broadnax and Defendant Cook as the men he had observed beating and robbing the victim. Mr. Bartram recalled that one of the assailants wore a “hoodie, " one wore a striped Polo shirt, and one wore a white shirt. He identified the “hoodie" that one of the men wore.
Mr. Bartram described the involvement of the three men in this incident as follows:
They were standing over him, all three of them. [The victim] was laying in a ball in the middle of the street and they were standing over him just mercilessly beating him. Kicking him, punching him. . . . One of them was holding the gun and pointing it at [the victim], then they hit [the victim] with it, then they'd hold [the gun] on [the victim] for a little bit longer, then they hit [the victim] with it again.
On cross-examination by Defendant Broadnax's attorney, Mr. Bartram testified that these events occurred around 11:00 p.m. He estimated that the beating occurred approximately twenty or thirty feet from his front door, where he was when he saw the incident. Mr. Bartram agreed that he testified at the preliminary hearing in this matter that Defendant Broadnax did not have the gun but that he could not now recall if Defendant Broadnax had possessed the gun. He confirmed that there was nothing obstructing his view of the beating and robbery that night. Mr. Bartram stated that he did not actually see the defendants go into the house on Macon Road but that he watched them enter the yard of that residence.
Eduardo Rodriguez testified that he worked at the Texaco station on the night of these events. He recalled that around 11:00 p.m., he observed “a few young African American guys" running to a house located across the street from the Texaco station. Five minutes later, he observed the victim, who appeared to be “disfigured from a beating, " walking toward the Texaco station. Mr. Rodriguez went outside and attempted to assist the victim and then called an ambulance.
Lindsey Johnson testified that, on the night of October 19, 2011, she was in a house on Macon Road across the street from the Texaco station. She stated that in the house with her were Defendant Broadnax, Defendant Cook, Latasha Payton, and Joseph Washington. She said that she had known Defendant Cook for three years and Defendant Broadnax for two years and identified both men in the courtroom. She recalled that around 11:00 p.m., Defendant Broadnax and Defendant Cook entered the house and told Ms. Johnson that a “Mexican had jumped on" them, and they had gone “over there and they both beat [the victim's] a**." They instructed Ms. Johnson that, if police arrived, she was to tell the police that “they ain't heard from him." She said the men mentioned a T-Mobile cell phone, and Mr. Washington responded that he knew how to “unlock it." Ms. Johnson stated that she observed a weapon with a black handle inside the residence that night.
On cross-examination by Defendant Broadnax's attorney, Ms. Johnson testified that it was Defendant Cook who had the victim's cell phone on the night of October 19, 2011. Ms. Johnson clarified that she did not see a gun that night but rather saw a gun grip sitting on a chair before the defendants arrived.
James Moore, a Memphis Police Department officer, testified that he responded to a house on the corner of Macon Road and Wells Station after 11:00 p.m. on October 19, 2011. Once there, he worked with other officers to create a perimeter around the residence to ensure that no one entered or exited the residence. Police officers searched the residence, and upon their exit, one of the officers observed a hand in the garage. Officer Moore, along with several other officers, re-entered the residence and went through the kitchen into the garage. Once in the garage, Officer Moore observed a person hiding under a tarp, and he took this person into custody. Officer Moore identified Defendant Cook as the person found in the garage. Another suspect was also found in the garage and a third individual was found at the scene but not inside the garage.
Justin Sheriff, a Memphis Police Department officer, testified that he conducted the crime scene investigation of the residence at the intersection of Macon Road and Wells Station. At this location was a single story residence with white trim. Other police officers had already secured the residence by the time Officer Sheriff arrived. Officer Sheriff photographed a stainless steel pistol that the police had found behind a washing machine and dryer inside the residence. Officer Sheriff opened up the cylinder of the pistol and found live rounds inside the cylinder. In a bedroom of the residence, Officer Sheriff collected a purple bag that had twelve rounds of .38 special ammunition inside it. Officer Sheriff identified other photographs that he took at the scene. One of the photographs depicted a pistol grip that police officers found in the refrigerator, separate from the weapon.
Officer Sheriff testified that the pistol was a Ruger SP101. He identified a photograph of the pistol and the serial number on the pistol. Officer Sheriff identified the ...