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State v. Keith

Court of Criminal Appeals of Tennessee, Knoxville

July 16, 2015

STATE OF TENNESSEE
v.
FREDERICK KEITH

Session Date March 24, 2015

Direct Appeal from the Criminal Court for Knox County No. 93721 Steven W. Sword, Judge

Robert R. Kurtz, Knoxville, Tennessee, for the Appellant, Frederick Keith.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Charme P. Allen, District Attorney General; and Leslie R. Nassios, Assistant District Attorney General, for the Appellee, State of Tennessee.

Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.

OPINION

NORMA MCGEE OGLE, JUDGE

I. Factual Background

In February 2010, the Knox County Grand Jury indicted Michael Lambdin, Anthony White, and the appellant for first degree felony murder committed during their attempt to rob Vincent Presutto, who was shot and killed. On the morning of the first day of trial, the State orally moved to sever White's trial from that of his co-defendants. The trial court granted the motion, and the appellant and Lambdin proceeded to trial.

Barbara Eaton testified that on December 17, 2009, she was living in the Woodgate apartment complex on Cedar Lane in Knoxville and that her apartment was "[r]ight behind" apartment 109. About 11:15 p.m., Eaton returned home from work and pulled into the parking lot. She saw a small, dark-colored pickup truck with "Mazda" on the tailgate. The truck was in Eaton's parking space, and she noticed that the truck's headlights were turned off but that its parking lights were turned on. She said that the truck "started creeping a little bit" so that it eventually moved out of her space and into a space across from where she usually parked. Eaton could not see how many people were inside the truck.

Eaton testified that as she was backing into her parking space, she hit something. She said that she stopped and that a young, white male "come running around and stopped right at my window for a second." Eaton looked at the male, he looked at her, and he ran to the truck and got in. Eaton described the male as short, blonde, blue-eyed, and wearing a camouflage jacket. She turned off her car engine and heard someone yelling for help. Eaton looked to her left and saw a second male "come running out through the breezeway." The pickup truck pulled up to the sidewalk, and the second male "jumped" into the truck. The truck pulled onto Cedar Lane with its headlights still turned off.

Eaton testified that as she was walking to her apartment, she received a telephone call from a friend who worked at 911. The friend told her, "'Go in the house. There was just a shooting.'" Eaton walked to the victim's apartment to see if she could help and saw the victim lying on the ground. She said that his apartment door was open and that she saw "quite a bit of blood." In the early morning hours of December 18, an investigator showed Eaton a photograph array, and she identified the first male's photograph. She said that about one and one-half minutes elapsed between her seeing the first male and the second male.

On cross-examination by the appellant, Eaton acknowledged that she identified Lambdin as the first male. She said that the second male had dark hair and was wearing a camouflage jacket but that she could not identify him. On cross-examination by Lambdin, Eaton testified that the second male "[ran] as fast as he could to the truck" but that the first male "ran slower to the truck." Eaton never heard a gunshot.

Alan Bull of Knox County 911 testified that on December 17, 2009, the 911 center received calls about a shooting. The State played the audio-recorded calls for the jury. During the first call, which was recorded at 11:19 p.m., a woman reported that someone in her apartment complex had been shot. She said she heard one gunshot, went outside, and heard a man screaming, "Help me, help me!" The caller, who was inside her apartment, said that the victim was outside and that "I don't hear him anymore." During the second call, a woman reported that she heard a man calling for help and that he sounded like he was in pain. During the third call, which was recorded at 11:20 p.m., the victim telephoned 911 but hung up or was disconnected. The dispatcher called the victim's cellular telephone, and the victim answered. The victim yelled, "Help me!" and "701 Woodgate!" The victim said he had been shot and continued to yell for help. The victim said "help" one last time before the call ended. In the fourth call, which was recorded at 11:21 p.m., a man said that he heard a gunshot and that someone was outside his apartment, screaming for help. He said that he heard "a big bang" and that he did not know if the victim "fell or what." During the fifth call, a man reported that a male had been shot, that the victim was lying on the sidewalk, and that the victim had "lost a ton of blood."

Shane Hunter Williams, who made the fourth call to 911, testified that on December 17, 2009, he was watching television in his living room when he heard "a loud bang" and "a man start yelling for help." Williams went upstairs, looked out his bedroom window, and saw the victim lying on his back near a concrete retaining wall that was three to four feet tall. Williams said that prior to the shooting, he heard voices and "some yelling or something like that. I wasn't sure how many people or what was going on, but it got my attention."

On cross-examination by the appellant, Williams testified that he heard "[j]ust some vague voices" prior to the shooting and that he did not hear a struggle or anyone running. He said he had never seen the victim before December 17.

Jack Dixon testified that on December 17, 2009, he lived in the Woodgate apartment complex and went to bed about 11:30 p.m. Dixon said that he heard a gunshot, that he heard "someone holler for help, " and that he immediately called 911. He said that he had worked for the sheriff's department for twenty-seven years, that he had been a hunter for fifty-five years, and that the gunshot was fired from "a large-caliber weapon, either a short barrel rifle or a large magnum type pistol." Dixon looked out his kitchen window but did not see anyone. He got dressed, went outside, and saw the victim lying in a fetal position. The victim had lost a lot of blood and appeared to be deceased. The door to the victim's apartment was open, and Dixon saw "a large amount of blood in the front door into the kitchen area." A light inside the victim's apartment was on, and Dixon saw a four-inch stainless steel or nickel-plated revolver in the doorway. He said several police officers arrived and protected the crime scene for detectives.

On cross-examination by the appellant, Dixon testified that he did not know the victim, that he did not hear any fighting before the shooting, and that he did not hear footsteps leave the scene. He said that more blood was outside where the victim was lying than inside the apartment but that "there was a trail of blood there and down the steps . . . on the porch."

Jason Huiting testified that he and the victim were friends for three or four years. In December 2009, the victim lived in the Woodgate apartment complex and was a bartender and server at Wild Wings Café. The victim had a young son and was married but was separated from his wife. Huiting said that the victim was addicted to opiates, that the victim had a prescription for pain pills, and that the victim sometimes sold the pills. On the night of December 17, Huiting went to the victim's apartment and stayed ten to fifteen minutes. The victim did not make any telephone calls during that time, and Huiting did not know if the victim was expecting anyone else at the apartment after he left. About 3:00 a.m. on December 18, Huiting learned about the shooting and contacted the Knoxville police.

On cross-examination by the appellant, Huiting testified that the victim had been using pain pills for as long as he had known the victim and that the victim had filled a prescription on December 17. On cross-examination by Lambdin, Huiting acknowledged that the victim was a "small time" drug dealer and that the victim usually kept his apartment door locked.

Gerald Smith testified that in 2009, he processed crimes scenes for the Knoxville Police Department (KPD) Forensic Unit and arrived at the scene at 11:32 p.m. on December 17. The victim was receiving medical treatment just outside apartment 109. After paramedics removed the victim, Smith photographed apartment 109 and the area outside the apartment. Smith noticed "an obvious bullet hole in the door near the opening side." The hole went through the door.

Smith testified that he collected the victim's cellular telephone, which had been on the ground near the victim; the victim's eyeglasses, which were at the base of a short set of steps coming down from the victim's apartment; a camouflage baseball cap that was just inside the doorway of the apartment; a red, white, and blue toboggan that was outside on a ledge near the victim; and a cigarette on the ground below the toboggan. The cigarette was still burning. Smith saw a Smith and Wesson forty-four-caliber, six-shot revolver inside the apartment. The gun was on the floor between a tiled foyer area and the living room carpet and contained five unfired cartridges and one spent cartridge. The gun was three feet inside the door. The camouflage cap also was in the tiled foyer area but was near the entrance to the kitchen. Blood was in the kitchen, demonstrating that the victim had walked into the kitchen after he was shot. Blood also was on the steps outside the apartment door and led to "the main blood pool where the victim was found." Smith opined that the victim had been shot inside the doorway of the apartment and that the victim then moved around, ending up outside the apartment.

Smith testified that officers searched the apartment and found two empty prescription bottles and a drugstore receipt. One of the bottles showed that hydrocodone had been prescribed to the victim. The drugstore receipt showed that the victim had filled a prescription for 120 oxycodone pills that day. However, officers did not find any drugs in the apartment. The bullet hole in the apartment door was fifty-two inches from the base of the door. A trajectory rod inserted into the hole showed that the bullet was fired at an angle and slightly downward and that the door was open when the gun was fired. Smith estimated that the door was open twelve to sixteen inches at the time of the shooting. The victim was shot in the shoulder; therefore, his body had to be lower than fifty-two inches when he was shot.

On cross-examination by the appellant, Smith testified that blood was underneath the camouflage cap in the foyer and that he believed the hat fell onto the blood. The cap was twenty-eight to thirty inches from the front door and two feet from the gun. Smith said that he thought the victim was in the center of the foyer at the time of the shooting and that the victim was closer to where the gun was found than where the cap was found. On cross-examination by Lambdin, Smith testified that he thought the victim was crouched down, trying to keep the shooter out of the apartment, when the victim was shot.

Investigator Timothy Schade of the KPD Forensic Unit testified that he assisted Gerald Smith with processing the crime scene and that he photographed the gun. Blood was on the weapon. Investigator Schade, a certified latent fingerprint examiner, collected fingerprints from the front door, and the prints appeared to be from the three middle fingers of someone's hand. Investigator Schade compared the prints to known fingerprints from the victim, the appellant, Lambdin, and Jason Huiting, but the prints on the door did not match anyone. On cross-examination by the appellant, Investigator Schade testified that he was unable to obtain fingerprints from the gun or the cartridges inside the gun.

Patricia M. Resig of the KPD testified as an expert in firearms identification that she examined the revolver found in the victim's apartment, one fired cartridge case from the gun, five "live" rounds from the gun, and a bullet recovered from the victim. She concluded that the fired cartridge case was fired in the gun and that the bullet from the victim passed through the barrel of the gun. Resig said that the gun was an older-model Smith and Wesson but that it was "in pretty good condition." She described it as a "powerful weapon, " firing large-caliber bullets.

On cross-examination by the appellant, Resig testified that she tested the gun and that ten to eleven pounds of pressure were needed to fire it. If the hammer was already cocked, though, only four to five pounds of pressure were needed to fire the weapon.

Natalie Freeman testified that in December 2009, she was dating Anthony White and lived on East Oldham Avenue in Knoxville. Freeman had known the appellant for a long time and thought of him as her brother. She also knew Lambdin but did not know him well. On the night of December 17, White and the appellant brought Lambdin to Freeman's house "because we were all going to be drinking." The three men arrived about 9:30 or 10:00 p.m., and everyone consumed rum. At some point, Freeman was in the kitchen alone and heard the appellant and Lambdin talking on the back porch. The appellant and Lambdin were talking about Lambdin arranging to buy pills from the victim. Lambdin wanted the appellant and ...


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