Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Direct Appeal from the Criminal Court for Davidson County No. 2008-B-2006 Monte Watkins, Judge
Jason Chaffin, Nashville, Tennessee, for the appellant, Deaundra Donnell Smith.
Herbert H. Slatery III, Attorney General and Reporter; Michelle L. Consiglio-Young, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Deborah Housel, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and John Everett Williams, J., joined.
Robert W. Wedemeyer, J.
This case arises from the robbery and shooting of the victim, Corey Sanders, which occurred in September 2007. For these crimes, a Davidson County grand jury indicted the Defendant for felony murder and especially aggravated robbery. At the Defendant's trial on these charges, the following evidence was presented: Jessica Haines testified that in September 2007 she was living with the victim, to whom she was engaged, at a house on Highland Drive in Nashville, Tennessee. Through the victim, she knew a man named Devonta Cunningham, and she referred to him as "Papa." Mr. Cunningham had been to their home on a few occasions, and he was at their home accompanied by "a couple of gentlemen" on the Friday before the shooting in this case. Mr. Cunningham came to their home to look at dogs that Ms. Haines was selling.
Ms. Haines testified that Mr. Cunningham brought dogs with him when he came. She remembered having to restrain one of her dogs from attacking Mr. Cunningham's dogs. At that time, Ms. Haines was in the backyard, where she stayed for the duration of Mr. Cunningham's forty-five-minute visit. Ms. Haines recounted that, while she was in the backyard, the victim's cousin, Casey, stopped by. Casey gave the victim fifteen one hundred dollar bills for the victim's motorcycle and then an additional $500 for the victim's riding gear that matched the motorcycle. Mr. Cunningham was present when Casey gave the cash to the victim.
Ms. Haines described the events that occurred on September 29 and 30, 2007. She said that a man called the victim's cell phone late on the night of September 29 and asked to speak with the victim. She told the man that the victim was asleep. A few seconds later, Mr. Cunningham called the victim's cell phone and identified himself, and she recognized his voice. Ms. Haines said that she "fussed with [Mr. Cunningham] a little bit, " but she ultimately woke up the victim and gave him the phone. She overheard Mr. Cunningham tell the victim that he needed "three of them." Ms. Haines understood Mr. Cunningham to be asking to purchase marijuana. After speaking with Mr. Cunningham, the victim got up from bed and dressed. He went into the kitchen, and Ms. Haines followed him. The victim asked Ms. Haines if she wanted to come outside with him and swing on the porch swing. Ms. Haines said yes and that she would be there in a minute. The victim went outside.
Ms. Haines described what happened next by saying, "[I]t was like fireworks." At first she heard three shots, and then two more. Her instinct was to get up and run to the window to see what was happening. She did not see the victim, but she saw a man running just outside the fence in their yard. The man got into a car beside which two other individuals were standing. The car then sped away. She recognized the car as the Thunderbird in which Mr. Cunningham had come to her home on the previous Friday. Ms. Haines said that the man who was running by her fence had "dreadlocks" and got into the back seat of the car. The man who was driving and had been standing by the car was the "tallest one." Ms. Haines testified that all three individuals were African-American.
Ms. Haines testified that, when the car sped away, she went outside and found the victim lying face down in the grass. He had blood coming from the back of his shirt. She could not flip the victim over on her own, and a neighbor came to assist her. The neighbor rolled the victim over and began administering CPR. Ms. Haines noticed that the victim's pockets had been turned inside out and that there was no money in them. Ms. Haines called the victim's mother, who was nearby, and both women remained with the victim until an ambulance arrived.
Ms. Haines testified that police arrived and asked her which way the shooters went. Ms. Haines showed them the direction taken by the Thunderbird. Other officers then interviewed her while the victim was taken by ambulance to the hospital. Ms. Haines said she was in "shock" during the interview, and she wanted to be at the hospital with the victim. She did not get to go to the hospital until after she learned that the victim had died.
Ms. Haines said that she did not find any money in the house after the victim died, and she knew that he did not have a bank account. Ms. Haines testified that she also could not find the victim's cell phone, which the two had purchased two months before his death. Ms. Haines said she provided the police the box that came with the phone.
Ms. Haines testified that she identified Mr. Cunningham in a photographic lineup shown to her by detectives. It was not until later that she learned his name was Devonta Cunningham. Ms. Haines said that she initially told the police that she believed that Mr. Cunningham had called about the puppies on September 30, 2007, but later during the same interview she told the police that he had called about marijuana.
During cross-examination, Ms. Haines confirmed that there were two phone calls to the victim's cell phone on the night of the shooting. The first phone call was from a voice that she did not recognize, and the second was from Mr. Cunningham, whom she recognized by voice and who identified himself. Ms. Haines said that the victim did not have Mr. Cunningham's phone number saved in his cell phone because Mr. Cunningham had previously called from "numerous" numbers.
Ms. Haines said that she had worked during the evening of September 29, 2007, at the police department from 3:00 p.m. until 11:00 p.m. She went and got her son and then arrived home around 11:40 p.m. She estimated that the first phone call came in after midnight. The two phone calls were received close together, and the victim went outside shortly after the phone calls. Ms. Haines estimated that the shooting occurred at around 1:00 a.m. on September 30, as she was preparing to go to sleep. Ms. Haines heard the shooting and ran to the window where she saw an African-American man with a "short haircut" exiting the yard and going toward the car. She saw the driver outside of the car, standing beside the driver's side door. He was "tall and slim."
Ms. Haines agreed that, in September 2007, she did not know the names "Deaundra Smith, " "Ashton Gaines, " "Mychal Hendricks, " "Lance Featherston, " "William Gentry Davis, " or "Devonta Cunningham." She only knew "Papa" by his nickname, which was how he described himself.
Lisa White, the victim's mother, testified that she stayed with her grandmother on the weekends to "take care of her." Ms. White's grandmother lived "three doors up from" her home at 2912 Highland Drive, which was where the shooting in this case occurred. Ms. White said that the victim, Ms. Haines, and Ms. Haines's son lived with her in her home at 2912 Highland Drive, but she was not present on the evening that the shooting occurred, as she was staying with her grandmother, three houses away.
Ms. White testified that, the evening of the shooting, she heard a "loud sound." She said that she went back to sleep but was awakened a short time later by her grandmother, who was telling her that something bad had happened to the victim. Ms. White got out of bed, dressed, and went down the street where she saw the victim on the ground near her house. A neighbor was performing CPR on the victim, and there were multiple people standing nearby. Ms. White said that she discovered that the victim had been shot, and he was taken by ambulance to a nearby hospital. Ms. White met the victim at the hospital and was there with him when he died.
Yolanda Coleman testified that she was living at 2911 Highland Drive on the date of this shooting and was fifteen or sixteen years old at the time. She was friends with the victim's younger sister, Talisha. Ms. Coleman said that, at the time of the shooting, she was across the street, outside, sitting at the end of her driveway talking on her telephone to her friend, "Terrance." Before the shooting, Ms. Coleman saw between two and three African-American men get out of a car in front of the victim's home. They approached the victim's fenced-in yard. She heard between three and six gunshots and saw the victim fall back after he had been shot. The men then ran back to their car, got in, and drove away "fast." Ms. Coleman could not recall the make, model, or color of the car, saying that it was dark.
Ms. Coleman testified that, after the shooting, she went back inside her home and told her parents what she had seen. She said that police came to her school to ask her if she could identify anyone from the pictures, and she identified "Ashley Gaines" as someone that she had seen "around school, " but she could not identify anyone in the pictures as being involved in the shooting. She told police officers that one of the men involved in the shooting had "dreads" and a "dark shirt, " and this man went to the driver's side of the vehicle after the shooting.
During cross-examination, Ms. Coleman testified that she saw two to three men get out of the car, go over to the victim's fence, and begin talking with him. She did not notice at that time if anyone remained inside the car. She explained that because the streetlight near her at the time was not illuminated, she did not see anyone specifically. Ms. Coleman said she recognized the Defendant's face, but she did not know him and could not say that he was present at the shooting. Ms. Coleman said that, when the men approached the fence, they were there longer than a few minutes, but she was unsure how long they stood there speaking with the victim before the shooting. Ms. Coleman said she did not hear fighting before the shooting.
Dammeion Beamon testified that, at the time of this shooting, he lived across the street and two houses down from where the shooting occurred on Highland Drive. Mr. Beamon testified that he was standing at the door of his house preparing to leave when he saw a "dark blue, two-door Cougar . . . or Thunderbird" pull up to 2912 Highland Drive. He saw an African-American male dressed in dark clothing exit the vehicle. At that time, there was a white male on the porch of the home who was talking on his phone, and Mr. Beamon could see the light from his telephone illuminated. He noticed that the man on the porch walked to the gate to meet the man from the car, and the two started talking. Mr. Beamon then turned around and began speaking with someone.
Mr. Beamon testified that, shortly thereafter, he heard two gunshots. He stepped back from his glass door and saw two African-American men running to the car. One of the men had on a white T-shirt, was "short and kind of stocky, " and he ran to the driver's side of the vehicle. The other man was "tall" and wearing dark clothing, and he ran to the passenger's side of the vehicle. They both "jumped" into the car, and the car sped away. Mr. Beamon said that he then heard two to three more shots after the car had pulled off, and he saw the victim lying on the ground.
Mr. Beamon testified that, after the shooting, a woman with a child came out of the house. She was crying and asking for help. Mr. Beamon said that he ran, jumped the fence, which was "locked" or "shut, " and started giving the victim CPR. Mr. Beamon said the victim was not responding and was having trouble breathing. Mr. Beamon noted that the victim had been shot in the lung but was not bleeding externally.
During cross-examination, Mr. Beamon testified that, in the statement he gave to police hours after the shooting, he told the police that the victim had been on the porch talking on his telephone for between thirty and forty minutes. He agreed that he did not hear the victim and the men argue before the shooting. He said that the men who arrived in the car did not go inside the fence, and the fence was still closed when he went to render aid to the victim.
Jack Stanley, a detective with the Metropolitan Nashville Police Department, testified that he was dispatched to the shooting in this case. Detective Stanley testified that, when he arrived at the scene two to three minutes after the call, he saw the victim, who appeared to be shot, lying in the front yard. The detective noted that the victim's eyes were fixed and he did not appear to be breathing, so the detective assumed he was deceased. He began asking witnesses for descriptions, and they told him that they had heard between four to five gunshots and that the shooters left in a blue or black Thunderbird. Detective Stanley testified that he broadcast over the police radio a description of the vehicle. The detective remained at the scene while it was processed by other personnel.
Ashton Gaines, known as "A.G." to his friends, was twenty-four at the time of trial. He testified that he had been incarcerated since October 9, 2007, for charges of felony murder and especially aggravated robbery stemming from this shooting. He said that he knew the Defendant because the two went to high school together. Mr. Gaines testified that the night of September 29, 2007, he and a few friends had been invited to "a house party" in Mount Juliet. Those men were: Lance Featherston; William Gentry Davis, who was known as "Flame"; Mychal Hendricks; Devonta Cunningham, who was known as "Papa;" the Defendant, who was know as "Dray;" a man referred to as "Hootie;" and a man referred to as "Hammer." Shortly after the group of men arrived at the party, the Mt. Juliet Police arrived and told them that they had to "bring the party inside." The people attending the party went inside the garage. Ten to fifteen minutes later, the person hosting the party informed them that the party was over. The group of men, who were traveling in two separate vehicles, went outside and "chilled around the car." Mr. Gaines recalled that he was driving one of the vehicles, a dark green Thunderbird. Riding with him were "Hammer, " Devonta Cunningham, and William Davis. The Defendant was driving the other vehicle, a gray Chevy Caprice, and the other men rode with him. The men eventually left the location of the party and went to a McDonald's restaurant in Mt. Juliet.
Mr. Gaines testified that they stayed at the McDonald's for approximately one hour, and some of the men purchased and ate food. Mr. Gaines identified a video from the McDonald's that showed the men in their clothing that evening. Mr. Davis was wearing a green hat and a yellow shirt. Mr. Hendricks was wearing a white T-shirt. Mr. Featherston was wearing a green jacket. The Defendant was wearing a "darker T-shirt." Mr. Cunningham was wearing a camouflage jacket, and Mr. Gaines was wearing a white hat and a white jacket.
Mr. Gaines said that the men spoke with several people by telephone. They then decided to return to Nashville. Both cars traveled to a location where they dropped off "Hammer" and "Hootie." They then went to the home of Mr. Featherston, who was Mr. Gaines's cousin. There they talked and watched television. Mr. Gaines estimated that they stayed at Mr. Featherston's house for approximately one hour before deciding to go to the "after hours club." Mr. Featherston changed clothes, and Mr. Gaines mentioned purchasing marijuana to Mr. Featherston and Mr. Hendricks. The three men went outside where Mr. Cunningham and the Defendant were waiting. They asked them if they knew anyone who sold marijuana. Mr. Cunningham said that he "might."
Mr. Gaines said that the men left Mr. Featherston's house and went toward the interstate. Mr. Davis rode with Mr. Gaines, and the other men, Mr. Hendricks, Mr. Cunningham, and Mr. Featherston, rode with the Defendant in his vehicle. Mr. Cunningham called Mr. Gaines and told him that he was going to attempt to call the victim about the marijuana. Mr. Gaines continued to follow the Defendant, but he was familiar with where they were going because he had dropped Mr. Cunningham off at the victim's residence one time before. Mr. Gaines said that the Defendant stopped a few streets from the victim's house. Mr. Cunningham and the Defendant exited the vehicle, as did Mr. Gaines. Mr. Cunningham asked to use Mr. Gaines's phone, and he handed the phone to the Defendant and gave the Defendant the victim's phone number to call. Mr. Gaines heard the Defendant ask to speak to the victim, and then he noted that the phone call ended and the Defendant hung up the telephone.
Mr. Gaines testified that the Defendant gave the telephone back to Mr. Cunningham, and Mr. Cunningham dialed the telephone again. He spoke into the telephone, identified himself as Mr. Cunningham, and asked to speak to the victim. Mr. Cunningham asked the person on the telephone, who Mr. Gaines assumed was the victim, about buying marijuana. The phone call ended, Mr. Cunningham gave Mr. Gaines his telephone, and Mr. Gaines returned to his car. The Defendant walked to Mr. Gaines's car, where he collected money from Mr. Gaines and Mr. Davis for the purchase of the marijuana. Mr. Gaines said that the Defendant walked toward Mr. Cunningham, and the two continued to have a conversation. Mr. Gaines overheard Mr. Cunningham tell the Defendant that the Defendant could rob the victim.
Mr. Gaines said he asked Mr. Davis if he had heard Mr. Cunningham tell the Defendant that they could rob the victim. Mr. Davis responded negatively, and Mr. Gaines told him what he had heard. Mr. Gaines then got a plastic bag from his car and placed it over his license tag so that his car would not be identifiable in the event there was a robbery. He also went over to the Defendant's vehicle and asked Mr. Featherston whether he heard Mr. Cunningham tell the Defendant that he could rob the victim.
Mr. Gaines testified that the Defendant then entered his car, the Thunderbird, and told Mr. Gaines that the Defendant was going to ride with him. The Defendant got into the passenger's seat, and Mr. Davis sat in the back of the vehicle. The Defendant informed Mr. Gaines that Mr. Cunningham was going to drive the Defendant's car and meet them in Shelby Woods "after." Mr. Gaines said that he drove, following Mr. Cunningham, who was driving the Defendant's car. Mr. Cunningham went straight, and Mr. Gaines turned onto the victim's street.
Mr. Gaines testified that, before he reached the victim's house, he called the victim to confirm that the victim was outside, and the victim responded that he was. Mr. Gaines then pulled up to the victim's house, parked in front, and shut off his car. Mr. Gaines noted that there was a girl, whom he recognized from school, sitting in the driveway opposite the victim's house, and she was talking on her telephone. The Defendant exited Mr. Gaines's car, went to the fence that divided the yard from the street, and began speaking with the victim. Mr. Gaines testified that he saw the victim give the Defendant a "bag of weed." The Defendant then approached the open window of the passenger side of the car with the marijuana for Mr. Gaines's inspection. Mr. Gaines declined to do so, indicating that it was fine and that he did not need to look at it.
Mr. Gaines said that, at this point, the Defendant went back to the fence and reached into his pocket and pulled out some money. The Defendant then reached in his pocket again and pulled out a .357 revolver. The victim put his hands up, and the Defendant told the victim to give him the money that was in the victim's pockets. The victim reached into his pockets and gave the Defendant the contents of his pockets.
Mr. Gaines testified that Mr. Davis then exited the vehicle and stood by the front passenger's side door watching. Mr. Gaines testified that there was another .357 revolver gun in the backseat and not operable at the time. He said Mr. Davis did not have this gun in his possession when he exited the vehicle at the victim's house. Mr. Gaines said that he heard the victim say, "I ain't got nothing else, " and the Defendant put what the victim had given to him, which appeared to be more marijuana, into his own pockets. The Defendant then shot the victim three times in the chest area. Mr. Gaines said that there was no arguing or fighting before the gunshots.
Mr. Gaines said that he started his car and pulled away at a high rate of speed. The Defendant told him to "calm down" and to "turn [his] lights on." Mr. Gaines said that he heard two more gunshots, and he saw the Defendant with his hand out the window. The Defendant then directed him to Shelby Woods where Mr. Cunningham would be waiting for them. The Defendant told Mr. Gaines to stop at an abandoned house near the park and indicated that he should leave his vehicle there. Mr. Gaines got out of his car and paced back and forth. The Defendant walked into the park and was gone for a short period of time. Mr. Gaines realized the bag was still over his tags, so he removed the bag. After the Defendant returned, he said that the men should begin walking toward Shelby Woods. As they were walking, Mr. Cunningham called him and said that he was parked at Tom Joy Elementary School. Mr. Gaines relayed this information to the Defendant, who then told Mr. Gaines to go retrieve his car and pick them up.
Mr. Gaines testified that he went back to his car, picked up the Defendant and Mr. Davis, and took them to Tom Joy Elementary. Once there, he saw the Defendant's vehicle parked, and he parked close to it. The Defendant exited the vehicle and told everyone present that he had robbed the victim and that he had to shoot him. The Defendant then gave Mr. Gaines some of the money and some of the marijuana. He also gave Mr. Featherston some of the marijuana.
Mr. Gaines said that he then offered to take Mr. Featherston home. The Defendant told Mr. Gaines that he would take Mr. Featherston home. He told Mr. Gaines to go directly home and park his car. Mr. Cunningham told Mr. Gaines that he would ride with him and that Mr. Gaines should drop him off first.
Mr. Gaines testified that he dropped off Mr. Cunningham and then went home. The Defendant called him to check on him, asking if he was "all right." Mr. Gaines said he told the Defendant that he was "all right" and that he was "just chilling and sitting at home" to try to take his mind off the events. The Defendant asked Mr. Gaines if he would still like to go out that evening, and Mr. Gaines indicated that he would. Mr. Gaines said that he changed clothes, and the Defendant picked him up. In the car with the Defendant were Mr. Featherston, Mr. Davis, and Mr. Cunningham. The men proceeded to a club in Nashville called "Faded, [A]fter [H]ours." They stayed at the club until closing time, which was "[a]round sunrise. Around five . . . or six" in the morning.
Mr. Gaines said that he and Mr. Davis had met up with some women at the nightclub who were in college in Kentucky. After the Defendant dropped Mr. Gaines off at his home, he drove to Mr. Davis's home and met the women from Kentucky. Mr. Gaines said he and Mr. Davis followed the women to Kentucky to spend the night with them. During that time, Mr. Featherston texted Mr. Gaines and informed him that he had seen a news story about the shooting. Mr. Gaines said he and Mr. Davis stayed in Kentucky for a few more hours and then ...