Assigned on Briefs February 3, 2015
Appeal from the Criminal Court for Shelby County No. 12-05597 James M. Lammey, Judge
James E. Thomas, Memphis, Tennessee, for the Appellant, Michael Bland.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Neal Oldham and Jessica Banti, Assistant District Attorney General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.
ALAN E. GLENN, JUDGE
According to the State's proof at trial, on July 12, 2012, the defendant, who had been robbed by the victim, H.T. Alston, during a dice game, spotted the victim in his South Memphis neighborhood, went home and retrieved his gun, lay in wait, and then jumped out and shot the victim multiple times, killing him. The defendant was subsequently indicted for the first degree premeditated murder of the victim and tried before a Shelby County Criminal Court jury.
The victim's mother, Cleopatria Brown, testified at trial that she had just arrived home from work on July 12, 2012, when she received a call informing her that her son had been shot five times at the corner of Orleans and Williams. The victim was still alive when she arrived at the scene but died later that day at the hospital.
Christopher Williams, who acknowledged he was currently serving a sentence for an aggravated assault conviction, testified that he was a friend and next-door neighbor of the defendant, had seen the victim walking in the neighborhood a couple of times, and had heard from the defendant that the victim had robbed him when he was in the backyard shooting dice with friends. On the day before the shooting, he and the defendant were hanging out together on the defendant's front porch when they spotted the victim in the passenger seat of a passing vehicle. The defendant said, "[D]amn, . . . I left the strap in the house, " referring to his gun. The next day, Williams accompanied the defendant to a neighborhood house and waited on the street while the defendant went up to the porch to buy some marijuana. When the defendant returned, he said, "[T]here's the negro right there that robbed me[, ]" and "[L]et's go and get the burner, " which, according to Williams, was another slang term for a gun.
Williams testified that he and the defendant went to the defendant's home, where the defendant retrieved his loaded .45 pistol and instructed his brother, David Bland, who was armed with a .38, to "come on." The three men went back outside and through a shortcut between buildings to Williams Street. Williams said that he and David Bland remained in the shortcut while the defendant hid himself behind a blue truck on the street to wait for the victim. When the victim walked past, the defendant "hopped out" and exchanged one or two words with him before firing one shot, causing the victim to fall. The defendant then took a half step closer and fired three more shots at the victim. At that point, Williams "took off running" through the "cut, " followed by the defendant and David Bland. Williams stated that he ran inside his home and looked out the window to see the defendant and his brother get into their sister's truck and drive away. He testified that the police came to his house later that day and took him to the police station, where he gave a statement and identified from a photographic array the defendant as the man who had shot the victim. Williams identified a photograph of five .40 caliber bullets, which he said the police recovered from his room at the time they picked him up. He insisted that he did not shoot the victim.
On cross-examination, Williams testified that the defendant's plan was to shoot the victim in the legs and rob him. He said that, at the time, he did not have a problem with robbing people and that he usually carried a gun but did not have one that day. On redirect, he testified that he had gotten rid of his gun about a month before the shooting because it frequently jammed.
Decorrio Morgan, a neighborhood resident and a friend of the victim, testified that on July 12, 2012, he was hanging out with the victim on the porch of a house on Williams Street until he left to go to "the College Park." When he was about halfway down the street, he heard a gunshot, turned around, and saw the defendant and a second man standing over the victim. The defendant had a gun in his hand, and Morgan saw the defendant firing at the victim. Morgan testified that he heard a total of four or five gunshots -- approximately two before he turned around and the rest after he turned to see the defendant shooting the victim. He said that the defendant and his partner ran "through the cut going towards Alston."
Morgan estimated that he was approximately twenty or thirty yards from the shooting. He said the defendant had a "low hair cut" and was wearing black pants and a yellow shirt, while his companion wore his hair in "dreads." He testified that he gave the police a statement later that same day and identified from a photographic array the defendant as the man who shot the victim. He said the defendant was the only one he saw with a gun.
On cross-examination, Morgan acknowledged having told the prosecutor in a later statement that Christopher Williams was the one who shot the victim. He explained on further cross-examination and redirect that he was certain he saw the defendant shoot the victim but, at the time he made the statement to the prosecutor, was momentarily unable to "believe what [he] had seen with [his] own eyes" due to all the talk he had been hearing on the streets.
Rosie Mae Fason, the victim's aunt, testified that on July 12, 2012, she was standing outside the door to her house, located near Orleans and Williams, when she heard gunshots and reacted by running inside and "hit[ting] the floor." When the shooting stopped, she got up, looked out the door, and saw two African-American men running through the alley. One of the men was wearing a yellow shirt and carrying a black gun, and the other was wearing a white shirt.
Francie Hunt, a neighborhood resident who acknowledged she had a misdemeanor theft conviction, testified that on July 12, 2012, she was walking home from her godfather's house on Williams Street when the victim stopped her to ask for a light. Afterwards, she was continuing on her way through "the cut" when she was passed by the defendant, Williams, and "Day-Day, " who were armed with guns. She was familiar with the men, who lived on her street, and when she saw them with the guns she "kn[e]w what was going on." By the time she had her keys in the door of her house, she heard three or four gunshots. When she turned around, she saw the same three men running back through the short cut carrying their guns and overheard the defendant say, "We got that b****."
After having her memory refreshed by her August 29, 2012 statement to police, Hunt testified that when the men passed her in the shortcut, Williams was carrying a small black gun and the defendant and "Day-Day . . . had something up under their shirt." When she saw them running back after the gunshots, the defendant was carrying a large gun and she heard him say, "I shot that b****." Hunt testified that she told the police where to find the suspects immediately after the shooting but did not give a statement until August 29 because her house was set on fire and she was threatened, which made her reluctant to get further involved. She testified that she identified the defendant and Michael Williams from photographic arrays she was shown by the police on August 29, writing on the array with Williams' picture, "This ...