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State v. Montgomery

Court of Criminal Appeals of Tennessee, Knoxville

May 28, 2015


Assigned on Briefs February 19, 2015

Appeal from the Criminal Court for Knox County No. 100682 Steven W. Sword, Judge

Patrick T. Phillips, Knoxville, Tennesee, for the Appellant, Deanty Montgomery.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant District Attorney General, for the Appellee, State of Tennessee.

D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle, and Robert H. Montgomery, Jr., JJ., joined.




This case arises out of a June 9, 2012 confrontation between the Defendant and Maurice Davis ("the victim") in front of the Walter P. Taylor Homes' market in Knoxville, which resulted in the Defendant's shooting the victim multiple times. Thereafter, on November 27, 2012, a Knox County grand jury charged the Defendant in a five-count indictment with the following: Count 1 – attempted first degree murder; Count 2 – employment of a firearm during the commission of a dangerous felony; Count 3 – employment of a firearm during the commission of a dangerous felony by one having a prior conviction for a dangerous felony; Count 4 – unlawful possession of firearm by one having been convicted of a felony drug offense; and Count 5 – aggravated assault. See Tenn. Code Ann. §§ 39-12-101, -13-102, -13-202, -17-1307, & -17-1324.

Officer Lee Shaw of the Knoxville Police Department ("KPD") testified that he patrolled the Walter P. Taylor Homes area in June 2012 and responded to a call concerning a shooting in front of the market on June 9, 2012. Upon his arrival, he saw the victim lying behind a van, which was parked approximately fifteen to twenty feet from the front entrance of the market. Officer Shaw observed that the victim was suffering from multiple gunshot wounds, so he called for an ambulance and secured the scene.

Several shell casings were found on the scene leading "from the back of the van towards the northeast, "and "bullet impacts" were seen on the van and a nearby newspaper stand, in addition to the victim's wounds. A total of five shell casings were recovered and sent to the crime lab for testing.

KPD Investigator Lance Halseth was able to speak with one eyewitness at the scene and later with the victim after his arrival at the University of Tennessee ("UT") Medical Center where he received treatment for his injuries. From his investigation, Inv. Halseth developed the Defendant as a suspect and prepared a photographic array for the victim to view. The victim identified the Defendant as the shooter, [1] according to Inv. Halseth, and a warrant was issued for the Defendant's arrest. Inv. Halseth also asked the market's clerk for security footage of the shooting, but he was told that the camera was not working at that time.

Registered Nurse Dennis Downhour testified that he treated the victim when he arrived at UT Medical Center on June 9, 2012, and that he observed multiple gunshot wounds to the victim's shoulder, hand, and legs. The victim was immediately taken to surgery due to the femoral fracture in his leg, which "can be very dangerous" due to the amount of blood loss, according to Nurse Downhour. After reviewing his notes, Nurse Downhour could not definitely say whether the Defendant was shot in the back of the shoulder or if it was merely an exit wound.

The Defendant was arrested in the weeks that followed, and following waiver of his Miranda[2] rights, he spoke with Inv. Halseth on July 18, 2012. The Defendant's statement was played for the jury.

In the statement, the Defendant described the events as a "drug deal gone bad" and provided the following details to Inv. Halseth. The Defendant stated that a cousin had called him and advised that he had a large quantity of crack cocaine for sale if the Defendant knew of any interested buyers. Thereafter, the Defendant was contacted by the victim, also a familial relation, who coincidently was seeking to make just such a purchase. Because it was family, the Defendant agreed to facilitate the exchange, referring to himself as the "middleman" in the transaction. The Defendant then brokered a deal between the victim and his cousin for $1, 125-worth of crack cocaine, which took place on June 7, 2012. A few hours later, the victim contacted the Defendant, advising him that his customers did not like the taste of the crack cocaine. The Defendant offered to return with the victim to the seller's residence, but the victim did not show up.

The Defendant told Inv. Halseth that, during the early morning hours of June 9, 2012, the victim, along with the victim's father, Maurice Johnson, confronted the Defendant about the money that they believed was owed to the victim. According to the Defendant, the victim pulled a TEC-9 semi-automatic pistol on him. The Defendant claimed that they forced him into the car and that they drove to the seller's house to demand a refund. However, when they arrived at the house, no one answered the door. They later let the Defendant go.

The Defendant maintained that, later that day, he called the victim and offered to reimburse him for half of the money he paid for the drugs. While en route to Walter P. Taylor Homes, the Defendant heard from several people that the victim was with his father at the Walter P. Taylor Homes complex looking for the Defendant, was armed, and was threatening to kill him.

Once the Defendant arrived at Walter P. Taylor Homes, he stopped to speak with L'Amour Sly and Tomichael Bennett. While talking, the Defendant saw the victim and his father walk past him headed towards the nearby market. Although they did not stop to speak to him, the Defendant said he could see the outline of the TEC-9 inside the victim's backpack at that time. According to the Defendant, he wanted to speak with the victim, so he followed the victim inside the market. He stated that he did so in order to appease the victim and negotiate an agreeable outcome.

Because the victim was with several friends while inside the store, the Defendant went outside and waited for the victim to exit. Once outside, the Defendant again told the victim that he would give him half of the cocaine purchase price, but the victim was not satisfied with that offer, stating that the Defendant was trying to "play" him. The Defendant responded that he was only trying the resolve the matter. He then saw the victim walk behind the van, heard him cursing, and he could see that the victim was attempting to retrieve something from inside his backpack. The Defendant then pulled out his weapon and warned the victim not to get the gun out of the bag. However, according to the Defendant, the victim began to run away while trying to get inside the bag, and he fired at the victim "six or seven" times in self-defense.

Although the Defendant said L'Amour Sly and Tomichael Bennett witnessed these events, Inv. Halseth confirmed that he never spoke with these individuals following the Defendant's interview to confirm the Defendant's story. That concluded the State's proof.

The Defendant presented several witnesses in his defense. First, L'Amour Sly testified that, on June 9, 2012, he was at Walter P. Taylor Homes and stopped to talk with Tomichael Bennett and the Defendant. As they were conversing, Mr. Sly saw the victim and the victim's father walk past them. According to Mr. Sly, the victim had a TEC-9 in his backpack, and the victim's father had black gloves and a handgun in his pockets. Mr. Sly, along with Mr. Bennett and the Defendant, proceeded to the neighborhood market, where they went inside and made some purchases. When Mr. Sly exited, he saw the victim and his father "standing on the other side of the van" that was parked in front of the store and the Defendant "standing with his back against the door." Mr. Sly heard the victim and the Defendant talking, and the conversation began "getting heated."

Mr. Sly saw the victim turn towards the van and walk to the opposite side while taking off his backpack. The victim's father, who was standing behind a metal newspaper receptacle at this point, started putting his black gloves on, so Mr. Sly thought "[s]omething fixing to go down." According to Mr. Sly, the Defendant walked around to the front of the van, and then the victim "pull[ed] the gun up [and] squeeze[d] off two shots"; the Defendant went for his pistol and returned fire. When the victim fell to the ground, his father fired "four or five" shots at the Defendant, using the newspaper stand "for cover[.]" Mr. Sly saw the Defendant leave going one way, and the victim's father leave going another, but only doing so after he "picked up the gun from the [victim] and picked up the backpack[.]" Before the victim's father was able to "cut [the Defendant] off[, ]" the Defendant got in a car and rode away, according to Mr. Sly.

Mr. Sly was asked if the Defendant had "an opportunity to safely withdraw from the situation[.]" He replied, "I mean, he could have walked away, but they was in a- they was pretty much following him to make sure that he didn't go nowhere." Mr. Sly agreed that there were many people present in the Walter P. Taylor Homes area that day, including kids playing. He further agreed that there was a large open area next to the store that the Defendant "could have retreated to[, ]" although he would have been turning his back on two armed men. Mr. Sly confirmed that he had a felony conviction for possession of marijuana with intent to sell.

James Johnson, an inmate in the county jail, testified that he worked at the Walter P. Taylor Homes' market in June of 2012 but was off on the day of the shooting. According to Mr. Johnson, the security surveillance system was operational during that time; when the disk covering that day was full, the owner asked him to clear the disk; and before he deleted it, he watched the footage of the shooting. On that disk, Mr. Johnson saw a man dressed in black standing in front of the van, and he saw the Defendant and the victim talking while standing toward the back of the van. Mr. Johnson believed that the man in black was carrying a pistol. According to Mr. Johnson, he saw the man in black "running behind the car, "and it appeared that they were "trying to ambush" the Defendant. Mr. Johnson also saw the victim take his backpack off and attempt to get something from inside. He never actually saw the victim with a weapon. Mr. Johnson believed "all the guns were in play" before the victim fell to the ground. According to Mr. Johnson, the man in black tried to retrieve something from under the van, and he then grabbed the victim's backpack and ran from the scene, never to return.

Tomichael Bennett, previously convicted of selling a counterfeit controlled substance and of felony possession of a Schedule III controlled substance, testified for the Defendant and gave his recollection of the events. Prior to the events at the market, Mr. Bennett saw the victim and his father walking around Walter P. Taylor Homes looking for the Defendant. The victim was wearing a red backpack that appeared heavy, and the bag "hung[, s]o it had to be a gun or something in it, "according to Mr. Bennett. Mr. Bennett saw a "reflection" of a gun inside the victim's father's pants pocket.

Later at the market, the Defendant was "on a wall by the store" when the victim and his father exited. Mr. Bennett saw the victim walk towards the Defendant, and they had a conversation; he saw the victim's father go the other way towards the newspaper stand. The victim then moved towards the front of the van and started "fumbling with this red little backpack" and pulled out what appeared to be a TEC-9. This was the first time Mr. Bennett had seen the weapon. The Defendant then shot the victim. Mr.

Bennett also observed the victim's father pick up the red backpack and the victim's handgun after the victim had been shot. According to Mr. Bennett, other than himself, the victim, the victim's father, the Defendant, and Mr. Sly, no one else was outside of the market at this time.

A private investigator hired by the Defendant, Thomas Ham, testified that he interviewed the victim on June 22, 2013. According to Mr. Ham, he asked the victim ...

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