Assigned on Briefs April 14, 2015
Appeal from the Criminal Court for Shelby County No. 13-01561 Lee V. Coffee, Judge
Barry W. Kuhn (on appeal) and Kathy Kent and Lisa Kutch (at trial), Assistant District Public Defenders, for the appellant, Ramone Hunter.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Sam Winnig, Assistant District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Norma McGee Ogle, J., joined.
JAMES CURWOOD WITT, JR., JUDGE
In April 2013, the Shelby County Criminal Court grand jury charged the defendant with one count of aggravated robbery and one count of aggravated burglary arising out of the home invasion and armed robbery of the victim, Jerry Wolfe. The trial court conducted a jury trial in May 2014.
Because the victim was deceased at the time of trial, the State admitted into evidence audio recordings of the victim's 9-1-1 call and the victim's testimony at the defendant's preliminary hearing. At the preliminary hearing, the victim testified that the defendant, a friend of his, had visited him at his apartment on the evening of November 9, 2012, to show the victim a cellular telephone he was selling. The victim declined to purchase the telephone, and, after a brief visit, the defendant left. A few minutes later, the victim heard a knock at his front door. Because the victim was expecting a visit from his daughter, he opened the door without first determining who was there. As soon as he opened the door, "a gun was in [his] face." The man wielding the gun was someone he had never seen before, but the defendant was standing at the door with the assailant. The assailant forced the victim back into his apartment and asked the victim for money. The assailant then struck the victim in the head with the handgun and stole the victim's wallet and cellular telephone. The victim testified that the defendant just "sat back and watched it happen." After the unknown assailant had collected the victim's wallet and telephone, both the assailant and the defendant left the apartment together, and the victim telephoned 9-1-1 a few minutes later.
On the recording of the 9-1-1 call, which was placed at 8:56 p.m. on November 9, the victim told the operator that he had just been robbed, explaining that someone had knocked on his door and that when he had opened the door, a man was pointing a gun at him. The victim gave the operator his address and told the operator that he knew one of the intruders but that the intruder he did not know had struck him with the gun and stolen his money and his cellular telephone.
Memphis Police Department ("MPD") Officer Johnny Kumpe responded to a call of a robbery on November 9 at a rooming house located at 1160 Central. When Officer Kumpe arrived, he found the victim seated on the steps just outside his apartment, holding a towel to an open wound on his head. The victim explained that the suspects had "knocked on the door and came in and forced him to give them some money and then the cell phone and then struck him in the head." The victim told Officer Kumpe that he knew one of the suspects by the street name, "Rome, " and that Rome "was known to frequent 1161 Linden." The victim also told Officer Kumpe that Rome had visited him at his apartment prior to the robbery. The victim later participated in a photographic lineup and positively identified the defendant as the man who had participated in the home invasion and robbery on November 9. On November 21, MPD officers located the defendant at 1161 Linden and placed him under arrest.
With this evidence, the State rested. Following a Momon colloquy, the defendant elected to testify.
The defendant testified that he uses the nickname, Rome, and that he was acquainted with the victim, explaining that he and the victim would often play chess together when the victim resided at 1161 Linden. On November 9, the defendant went to the victim's apartment at approximately 6:30 p.m. for a visit. Around 7:30 p.m., the defendant left. He stood outside the victim's apartment for a moment while searching for a cigarette lighter. Meanwhile, a person from an apartment on an upper floor walked past the defendant and knocked on the victim's door. After the defendant lit his cigarette, he heard the sound of scuffling behind him. He walked back to the victim's apartment and saw a man holding the victim at gunpoint and demanding money. When the victim replied that he had no money, the man struck the victim with the handgun. The victim then admitted that there was money in his nightstand. The man took the victim's money and telephone and walked out of the apartment. According to the defendant, the man never spoke to the defendant, and the defendant never spoke to him.
After the assailant had left, the victim asked the defendant to stay at his apartment so that he could speak with law enforcement officers. The defendant declined, explaining that he had marijuana on his person, and the defendant told the victim to send officers to his apartment at 1161 Linden. The defendant claimed that the victim came to his apartment one week later and asked if the defendant knew the man who had robbed him. The defendant said he did not, and when the victim asked if law enforcement officers had ever contacted the defendant, the defendant said no.
Based on this evidence, the jury convicted the defendant as charged of aggravated robbery and aggravated burglary. The defendant waived his right to a formal sentencing hearing and, in accordance with the agreement of the parties, the trial court imposed a sentence of 10 years for the aggravated robbery conviction and three years for the aggravated burglary ...