Assigned on Briefs February 3, 2015
Appeal from the Criminal Court for Shelby County No.11-03839 James C. Beasley, Jr., Judge
Harry E. Sayle, III (on appeal), Robert Felkner and Michele Lynn (at trial), Assistant Public Defenders, for the Appellant, Scott Lee.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming-Stark and Reginald Henderson, Assistant District Attorneys General, for the Appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams, J., concurred. Camille R. McMullen, J., filed a concurring opinion.
ALAN E. GLENN, JUDGE
The proof at trial showed that during the late night hours of September 17, 2010, the defendant and co-defendant, Calvin Rogers, followed and fired multiple shots at a car occupied by three men after the men declined their offer to provide the men with drugs and prostitutes. As a result, the defendant was indicted for the first degree murder of Ameer Althaibani in the perpetration of robbery, the attempted second degree murder and aggravated robbery of Dhaiban Mohammed, the attempted second degree murder of Fazil Rahman, employing a firearm during the commission of a felony, and felon in possession of a firearm. We will attempt to limit our recitation of the testimony at trial to that relevant to the defendant's issues on appeal.
Sultan Althaibani, the victim's father, testified that he last spoke with his son on September 17, 2010, when the victim was working at the store owned by his cousin, Dhaiban Mohammed. Mr. Althaibani learned early the next morning that the victim had been killed.
Dhaiban Mohammed testified that, on September 17, 2010, around 10:00 p.m., he picked up his cousin, the victim, and his classmate, Fazil Rahman, from their jobs in Bartlett, Tennessee, to take both men home. As Mr. Mohammed was driving on Sam Cooper Boulevard in his Nissan Maxima toward Highland Street, he mistakenly missed the Highland Street exit because he was talking with the other men and not paying attention. He got off at the next exit, Hollywood Street, and drove to Poplar Avenue where he stopped at a service station to buy a soda.
At the service station, Mr. Mohammed noticed two men in a silver "old model" car. However, at some point, the driver of the other car got out of his car and talked to the service station clerk. As Mr. Mohammed was returning to his car, the two men hailed him over to their car and invited him and his friends to a party. Mr. Mohammed told them that he did not want to go to a party and walked back to his car, which was parked next to a gas pump. The men then pulled their car up beside Mr. Mohammed's car with their car facing the opposite direction. The driver spoke to Mr. Mohammed, offering "to get [them] some drugs and some prostitutes." Mr. Mohammed responded that he was "good" and that he needed to get home because it was late and he had to work the next morning.
Mr. Mohammed left the service station, driving on Hollywood Street toward Sam Cooper Boulevard. He turned right off of Hollywood and observed the car from the service station pass him. The car stopped at a stop sign, and Mr. Mohammed stopped behind it. The two men got out of their vehicle, each holding a gun. One man approached the driver's side, and the other man approached the passenger's side where the victim and Mr. Rahman were sitting. The man on the driver's side pointed a gun to Mr. Mohammed's head and demanded money. Mr. Mohammed gave money to the man, but the man threatened that he was going to kill them and tried to open the door. Thinking he was going to die, Mr. Mohammed hit the gas on his car and drove away.
As Mr. Mohammed drove away, both men fired several shots at his car. The victim was hit with a bullet on his right side, and blood started pouring out of his mouth. Mr. Mohammed drove to the first open service station that he saw and called 911. Mr. Mohammed remained at the service station until the police and an ambulance arrived, but the victim was already dead. The police put Mr. Mohammed in the backseat of a patrol car and eventually transported him to the police station, where he spoke to the police. The next day, the police visited Mr. Mohammed's house and showed him a photographic array, from which he identified the man who stood on the driver's side door and pointed a gun at him. Mr. Mohammed said that he only paid attention to the man on his side of the car.
Fazil Rahman testified that he was working in Bartlett, Tennessee, on September 17, 2010. Mr. Rahman's car was broken down, so a classmate of his, Mr. Mohammed, and Mr. Mohammed's cousin, the victim, picked him up from his job around 11:00 p.m. Mr. Rahman sat in the backseat on the passenger side, and the victim sat in the front passenger seat. Mr. Mohammed drove down Sam Cooper Boulevard toward Highland Street, but he missed his exit because they were talking and joking. Mr. Mohammed took the exit for Hollywood Street and drove toward Poplar Avenue.
When they got to Poplar Avenue, Mr. Mohammed decided to stop at a service station to buy "some drinks and some chips." Mr. Rahman walked toward the store to buy a drink but stopped when he saw two men talking to Mr. Mohammed. One of the men was bald, wore a white tee shirt, held a puppy on a leash, and was standing outside a silver, four-door Honda talking to the store clerk. The other man, whom Mr. Rahman identified as the defendant, sat inside the silver Honda and had dreadlocks and a "heavy" mustache. Mr. Mohammed told Mr. Rahman that the men had asked if "they want[ed] drugs and girls or do we want to have a party, " and Mr. Mohammed had told the men that they were not interested. Mr. Mohammed went on and purchased a soda at the store, but Mr. Rahman decided to return to the car instead. After Mr. Mohammed got back to the car, the two men pulled their car up next to Mr. Mohammed's car and again asked the men if they wanted anything, and Mr. Rahman responded that they did not want.
Mr. Mohammed drove away from the gas station. Mr. Rahman suggested that they take what he believed to be a shortcut back to Sam Cooper Boulevard, rather than drive down Poplar all the way to Highland. They drove down Hollywood and then turned on a street, thinking it was a shortcut. As Mr. Mohammed approached a stop sign, out of nowhere, the silver car from the service station passed quickly in front of Mr. Mohammed's car and stopped near the stop sign. They had not realized that the silver car had been following them until that point. One of the men in the silver car turned off the car's headlights and turned on the interior lights.
Mr. Rahman told Mr. Mohammed to be careful and not turn off the car. Mr. Rahman saw the bald man, the silver car's driver, approach Mr. Mohammed on the driver's side, point a gun at him, and demand all of his money. When a shocked Mr. Rahman looked up, he saw the defendant, the silver car's passenger, standing on the passenger's side of Mr. Mohammed's car demanding that he and the victim give him money. Mr. Rahman tried to give the defendant his wallet, money, and keys, but stopped when ...