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State v. Jones

Court of Criminal Appeals of Tennessee, Nashville

December 6, 2016


          Session April 19, 2016

         Appeal from the Criminal Court for Davidson County No. 2012-C-2035 J. Randall Wyatt, Jr., Judge.

         A Davidson County jury convicted the Defendant, Rodney Earl Jones, of first degree felony murder and especially aggravated robbery. The trial court sentenced him to life for the first degree murder conviction and to twenty years for the especially aggravated robbery conviction, ordering the sentences to be served consecutively. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion for severance; (2) the trial court erred when it failed to instruct the jury about his co-defendant's out of court statements; and (3) the evidence is insufficient to sustain his convictions. After review, we affirm the Defendant's convictions.

         Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed.

          G. Jeff Cherry and Christopher Beauchamp, Lebanon, Tennessee, for the appellant, Rodney Earl Jones.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the Court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.



         I. Facts

         This case arises from the murder of the victim, Victor M. Parham, which occurred on or about March 14, 2012. For this murder, a Davidson County grand jury indicted the Defendant and two co-defendants, Alberto Conde-Valentino and Xavier Tull-Morales, for the first degree felony murder and especially aggravated robbery of Victor M. Parham. The Defendant filed a motion to sever, which the trial court denied. At the Defendant's trial on these charges, the parties presented the following evidence: Carlos Burroughs testified through an interpreter that he was incarcerated serving a sentence for DUI at the time of the trial. Mr. Burroughs said that he and the victim had been friends since the third grade and that they were like brothers. The two, who had been roommates for several years, spoke by telephone every day and saw each other frequently. Mr. Burroughs stated that he and the victim lived together at a residence on Allen Road ("Allen Road Residence") in Donelson, Tennessee. Mr. Burroughs eventually moved out, and the victim remained living at the Allen Road Residence.

         Mr. Burroughs described the victim, saying that he was good with his family and never had a problem with anyone. Mr. Burroughs knew the victim's girlfriend, Starnesha Grant, and his brother, Darius Parham. Mr. Burroughs said the victim owned a lawn care service. Mr. Burroughs said that the victim never discussed selling drugs, and Mr. Burroughs was not aware that the victim engaged in this activity.

         Mr. Burroughs testified that he called the victim around 12:00 p.m. on his last day of DUI class. The two spoke on the telephone, laughing, and the victim said that he had to go to his house. When Mr. Burroughs got out of his class late that evening, he again tried to call the victim. When the victim did not answer either of his phones, which was unusual, Mr. Burroughs began calling other people to determine the victim's whereabouts. Mr. Burroughs said that he called the victim's girlfriend, Ms. Grant, who at first seemed unconcerned. She called him back and inexplicably said that she did not want to go to the Allen Road Residence alone. She came and picked up Mr. Burroughs, and the two of them went to the Allen Road Residence together at around 8:00 or 9:00 p.m. Mr. Burroughs recalled that, when Ms. Grant picked him up, she was driving the victim's car, which was not unusual.

         Mr. Burroughs said that he looked around the victim's home, finding all the doors locked and the lights off. Ms. Grant's car, which the victim often drove, was parked in the driveway. Mr. Burroughs said that Ms. Grant seemed "nervous" and repeatedly asked him to break into the home. Mr. Burroughs declined and suggested they contact the victim's brother, Mr. Parham, who lived with the victim at the time. Mr. Burroughs said that he assumed that the victim was with a friend, and the idea that he was dead never occurred to him.

         Mr. Burroughs said that he returned home, wanting to contact Mr. Parham before entering the residence. He asked Ms. Grant to keep him apprised of any developments. Ms. Grant and Mr. Parham contacted him the next morning, and he went back to the Allen Road Residence, where police were investigating a crime scene. Mr. Burroughs said that he stayed at the residence until police removed the victim's body from the scene.

         Mr. Burroughs said that, a few weeks later, he and several of the victim's friends and family were back at the Allen Road Residence cleaning. The victim's cousin found a bullet on the floor, and they called the police. The police asked several questions with regard to the bullet.

         During cross-examination, Mr. Burroughs testified that when the bullet was found the group left it on the floor untouched. During further cross-examination, Mr. Burroughs agreed the victim had two phones, explaining that one was a work phone and the other a personal phone.

         During redirect examination, Mr. Burroughs testified that, after Ms. Grant dropped him off that evening before victim's body was found, she called him later to ask him whether he thought the victim would mind if Ms. Grant allowed Mr. Parham to sleep at her residence that evening. She wanted to know whether Mr. Burroughs thought that this would make the victim angry. Mr. Burroughs told her that he thought it was fine.

         Starnesha Grant testified that she was a twenty-eight year old grievance analyst for CVS pharmacy. At the time of these events, Ms. Grant attended Cumberland University as a nursing student and also cared for her daughter, who was seven at the time. Ms. Grant recalled that she and the victim had dated for three years at the time of his death. Ms. Grant said that the victim owned several vehicles, one was a work truck and the others were personal cars. She said that she often drove the victim's two-door car, and he drove her four-door car because they liked each other's cars better.

         Ms. Grant acknowledged that the victim sold drugs. She said that he sold marijuana, prescription pills, and ecstasy. Ms. Grant said that the victim had cash on-hand at all times, sometimes in large amounts. Ms. Grant said that, if the victim carried this money with him, he would place it in different locations on his person. For example, he would store some of the cash in his shoes and some in his pockets. In this way, the victim attempted to avoid detection as a drug dealer if stopped by police. Ms. Grant said that when the police first questioned her about the victim's drug dealing she did not answer honestly and denied that the victim sold drugs.

         Ms. Grant confirmed that Mr. Burroughs and the victim were as close as brothers. She said that the two contacted each other daily. She also recalled meeting the victim's brother, Mr. Parham, after Mr. Parham was released from jail a few months before the victim's murder. Ms. Grant said that Mr. Parham was living in the victim's Allen Road Residence, which was the reason that the victim still rented the residence. The victim had obtained an apartment nearby but kept the Allen Road Residence for Mr. Parham.

         Ms. Grant said that there was only one key to the Allen Road Residence because she had broken the spare key. She said that this sometimes posed a problem because the victim insisted on keeping the only key, so Mr. Parham was sometimes locked out of the residence. Ms. Grant said that the victim had two phones, one of which she had recently purchased for him as a Valentine's Day gift. Ms. Grant said that, routinely, the victim immediately responded to her calls if he did not answer, either by calling her back or responding by text.

         Ms. Grant said that she knew the Defendant because the Defendant had previously lived with the victim. Ms. Grant recounted that the Defendant and the victim lived together before she and the victim began dating, but the victim had introduced her to the Defendant on several occasions. Ms. Grant said the victim could not drive because of his multiple DUI convictions, so she sometimes drove the victim places. She said she drove him to the Defendant's house "a couple of times."

         Ms. Grant recalled the events surrounding her finding the victim dead. She said that the victim had spent the night with her, and the two awoke together on March 14, 2012. Ms. Grant awoke at 8:00 a.m. because she had to go to work, and the victim returned to sleep in her bed. When she arrived at work, her outfit did not meet the dress code, so she returned home to change. When she arrived home briefly to change, she found the victim still asleep in bed. Ms. Grant said that she went to work and did not speak with the victim all day. After work, but before her night class, she went to the Allen Road Residence. Ms. Grant, who was driving the victim's black car, saw her white car, which he sometimes drove, parked and unlocked at the residence. She found this unusual. She assumed this meant that the victim had just run into his house for a minute and intended to return quickly. Ms. Grant smoked some marijuana and texted the victim to tell him that she was in the driveway. She then placed the remainder of her marijuana in the trunk of the white car.

         Ms. Grant said that, when the victim did not text her back, she became concerned. She knocked on the door and looked around the house. After seeing nothing, she decided to leave and go to her class. As she was leaving, she thought she saw something in the window and went again and knocked on the door. Getting no response, Ms. Grant left and went to her class. Ms. Grant said that she and the victim's brother Mr. Parham texted each other during her class, and he asked her whereabouts. She left her class at 8:30 p.m., retrieved her daughter, and then went back to the Allen Road Residence. There, she retrieved the marijuana from the trunk of the white car, finding it strange that there were no lights on in the house and that the white car was still unlocked. Ms. Grant said that, because she had her daughter with her, she did not knock on the doors of the residence because she needed to get her daughter home and in bed.

         Ms. Grant recalled that, when she arrived home, she started repeatedly calling the victim. When she did not get an answer, she started calling the local jails, the hospitals, and the victim's friends. Ms. Grant said she asked her neighbors to watch her sleeping daughter, and she asked Mr. Burroughs to go with her to the victim's house. She said that the two checked the house, again finding no answer, and she asked Mr. Burroughs to break a window. He declined, saying that the victim would be upset about the broken window. The two then left the residence.

         Ms. Grant testified that she drove Mr. Burroughs back to his residence while continuing to attempt to contact the victim's brother and friends. She spoke with Mr. Parham, who also seemed concerned about the victim's welfare. He informed her that, because the Allen Road Residence was locked, he did not have anywhere to stay the night. He asked to stay at her apartment. Ms. Grant called Mr. Burroughs because the victim had previously expressed concern about Mr. Parham staying at her apartment. Mr. Burroughs agreed that the victim would approve, so she allowed Mr. Parham to stay with her.

         The following morning, March 15, 2012, the victim's mother contacted her and asked if she had spoken with the victim, and she informed the victim's mother that she had not. Ms. Grant and Mr. Parham dropped off her daughter at daycare at 6:00 a.m. and went to the victim's house. Mr. Parham "popped a lock" on the door, and the two entered the house. They immediately saw the victim lying on his stomach on the floor. They also saw a knife on the floor, so she thought someone had stabbed the victim. Ms. Grant said that she turned the victim over and attempted to resuscitate him, believing that she could save him. Mr. Parham called 911. She at some point spoke with the operator and expressed that she was a nursing student and attempting to save the victim.

         Ms. Grant recalled that both she and Mr. Parham felt devastated by finding the victim dead. At one point, Mr. Parham, who was crying, punched a hole in one of the walls. When the emergency responders arrived, they asked Ms. Grant and Mr. Parham to wait outside. Ms. Grant recalled crying and being upset. The victim's mother arrived. The police also arrived, and a police officer transported Ms. Grant to the police station where she provided a statement. Ms. Grant said that she consented to the police searching her home and car and to swabbing her hands for gunshot residue. The police took the phones that she had in the black car. On the day of the victim's funeral, Ms. Grant deleted text messages from her personal cell phone that related to drug dealing activities. She said that she did this because she did not want to lose custody of her daughter.

         During cross-examination, Ms. Grant testified that she knew that there was a surveillance system at the Allen Road Residence, and she knew how to turn it on and off. She believed that it recorded to a VHS tape. She denied taking the tape out of the surveillance system, saying that she did not go upstairs in the residence that day. Ms. Grant agreed that she knew that drug deals occurred at the Allen Road Residence, but she denied participating in any of those. She said she participated in other drug deals. She said that she "exchanged money for drugs" but denied that she was a "drug dealer." During further cross-examination, Ms. Grant testified that she had no explanation for why her phone and the victim's phone were "pinging from the same address" after she found his body. She agreed that she initially declined to give the police her phone because it was her only method of communication. She said that a police officer saw her delete a text message about selling five Lortabs. The officer then took the phone from her.

         Ms. Grant testified that the victim owned an AK47 assault rifle or some other type of rifle. He also owned another weapon, but she was unsure of the make or model of it. He routinely kept those weapons at the Allen Road Residence. She said that the victim did not keep his weapons at her home but that police found a box of .380 ammunition at her house, which she said belonged to the victim. Ms. Grant said that the victim was a convicted felon, so she sometimes purchased ammunition for him.

         Darius Parham testified that the victim was his older brother. Mr. Parham said that he moved into the Allen Road Residence almost two weeks before the victim died. The two planned to move, so the victim never made Mr. Parham a key for the residence. Mr. Parham recalled that the victim had a surveillance camera, explaining that the victim's room was far from the front door, and the camera enabled him to see who had arrived at the residence. Mr. Parham recalled that the victim was very close with Mr. Burroughs, saying that the two spoke regularly.

         Mr. Parham said that, the day before the victim died, Mr. Parham was away from the residence and, when he returned, he called the victim to let him into the Allen Road Residence. The victim did not answer his phone and did not call him back, which was unusual. Eventually Mr. Parham contacted Ms. Grant, and he spoke with Mr. Burroughs, both of whom had not heard from the victim.

         Mr. Parham testified that he did not have anywhere to stay the night before he found the victim's body, so he asked Ms. Grant if he could stay at her residence for the night. She agreed, and he went to her home late that evening. Mr. Parham recalled that Ms. Grant told him that she had called the local jails and the hospital looking for the victim. Mr. Parham slept in the living room.

         Mr. Parham said that, when he awoke the next morning, he and Ms. Grant took her daughter to daycare, and then she went to the Allen Road Residence. He said that he used his identification card to open the lock of the door, and he immediately saw a knife on the floor. Thinking the victim had been stabbed, Mr. Parham flipped the victim over. Mr. Parham said that he knew that the victim was dead because he was "too hard" to be alive. Mr. Parham said Ms. Grant tried to resuscitate the victim, but he knew that it was too late. He called 911, and he said he had listened to the 911 recording, upon which he and Ms. Grant sounded upset. Mr. Parham said that because he was so upset over his brother's death, he punched a hole in one of the walls. Mr. Parham said that police officers questioned him, took his fingerprints, and tested his hands for gunshot residue.

         Mr. Parham recalled that, a couple of weeks later when he and some other relatives and friends were cleaning the victim's house, he found a bullet on the floor where the victim's body had been lying. He said that they called the police, who responded and took pictures.

         During cross-examination, Mr. Parham testified that he was not aware that the victim sold drugs from the residence, believing that this activity was in his past. He said that several people had access to the residence during the time between the victim's death and the time they found the bullet. This included the property owner, his mother, his uncle, and himself. On redirect, Mr. Parham agreed that he "maybe" stated, "some bitch must have done this." He explained that he believed that the victim suffered a stab wound and that only a woman would stab someone.

         Iris Pinson testified that she did not want and was scared to testify. Ms. Pinson recalled that, at the time of the victim's death, she lived in a housing project in Davidson County. A man named Xavier Tull-Morales, a codefendant in this case, resided in a home behind Ms. Pinson's home in a housing project. She recalled that the two became acquainted and eventually became friends, seeing each other daily. Their relationship was not a romantic one, but she got the impression that he was romantically interested in her. Through co-defendant Tull-Morales, Ms. Pinson met the Defendant and co-defendant Conde-Valentino.

         Ms. Pinson testified that co-defendants Tull-Morales and Conde-Valentino were frequently together. Co-defendant Conde-Valentino came to co-defendant Tull-Morales's home every day and sometimes stayed there for days at a time. Co-defendant Conde-Valentino's residence was in Dodge City, where he lived with his mother. Ms. Pinson said, however, that co-defendant Conde-Valentino came to the neighborhood frequently because his girlfriend also lived in their development.

         Ms. Pinson said that the two co-defendants would sometimes come to her home, which she shared with her two children and her fifteen-year-old sister, of whom she had custody. They also engaged in social activities together, but Ms. Pinson never went to co-defendant Tull-Morales's home because his older sister, Kathy, who lived with him did not like Ms. Pinson. Co-defendants Tull-Morales and Conde-Valentino told her that they were cousins.

         Ms. Pinson said that she also met the Defendant through co-defendant Tull-Morales because the Defendant and co-defendant Tull Morales were friends. Ms. Pinson's friend, Patri, who was also related to co-defendants Tull-Morales and Conde-Valentino, dated the Defendant. When Patri visited Ms. Pinson, the Defendant came to see her there on several occasions. Ms. Pinson knew the Defendant, who spoke fluent Spanish and drove a black SUV.

         Ms. Pinson recalled a day in March 2012 when the three men came to her home. The Defendant drove there and approached her back porch on foot. The other two co-defendants walked toward her back porch also. At the time, co-defendant Tull-Morales began bragging that he was going to "rob somebody." Ms. Pinson did not take this statement seriously because co-defendant Tull-Morales had made similar statements in the past, as had the other men, but never carried through with them. Ms. Pinson said she had seen co-defendant Tull-Morales rob someone in the past, but he used a water gun and did not hurt the victim.

         Ms. Pinson said that both co-defendant Conde-Valentino and the Defendant were present when co-defendant Tull-Morales made his statement. She also said that co-defendant Conde-Valentino made similar statements at the time about robbing someone. The Defendant stated that they could get drugs and money from the robbery. Ms. Pinson said that none of the men discussed the intended victim or location of the crime. She did not see a weapon in their possession until the men got into the Defendant's car, at which time she saw the Defendant and co-defendant Conde-Valentino each with a weapon. Ms. Pinson said that, while co-defendant Tull-Morales said that he had a weapon, he was unarmed.

         Ms. Pinson said that she did not see the three men again until dark that night. The three men came to her home, and she noted that co-defendant Tull-Morales had a lot of blood on his hands and shirt. He changed his shirt at her home. Ms. Pinson also saw that co-defendant Tull-Morales was carrying two baggies that she thought contained drugs; one baggie appeared to contain cocaine and the other appeared to contain pills. He also had "a lot of money" with him. Co-defendant Conde-Valentino also had a similar amount of blood on his shirt and hands as co-defendant Tull-Morales, and he also changed his shirt. Ms. Pinson said that, when the two men were upstairs changing, she saw them use the drugs that they had in their possession. Ms. Pinson said that the Defendant did not use the drugs. She also recalled that he only had a small smear of blood on his hand and none on his shirt.

         Ms. Pinson testified that, when both co-defendants removed their shirts, they placed them in a grocery plastic bag, which they gave to the Defendant. The Defendant left her home with the bag.

         Ms. Pinson testified that co-defendant Tull-Morales told her what had happened. He said that he had waited in the car for a long time and then went up to the residence, knocked on the door, and said he had to go to the bathroom. The occupant of the home let him enter, he walked past the man, and then he shot him. Ms. Pinson said co-defendant Tull-Morales said that "he blew his face off." He made these statements, she said, in the presence of the other two defendants. Ms. Pinson noted that co-defendant Tull-Morales seemed "very messed up off drugs" at the time he made these statements. His words were slurred but he did not seem tired.

         Ms. Pinson said that co-defendant Conde-Valentino said that he stabbed the robbery victim and had "unloaded" on him. He made this statement in the presence of both co-defendants. Ms. Pinson confirmed that co-defendant Conde-Valentino was "shaky, " "nervous, " and that he kept saying that he was going to go to jail. Co-defendant Conde-Valentino then threw up multiple times. Ms. Pinson said that the two co-defendants began arguing, and the Defendant seemed like he did not know what either of them was talking about. Ms. Pinson took from their conversation that the men had already divided up the proceeds of the robbery but that co-defendants Conde-Valentino and Tull-Morales were both upset because they felt their portion was unfair.

         Ms. Pinson said that the Defendant told her to keep her "mouth shut" about what she had heard in her apartment. Other than that, he "pretended like nothing had happened."

         Ms. Pinson said she asked the men to leave, saying that her kids were asleep. She said she "got them out as fast as [she] could." She said she did not receive any drugs or money from them. The men also were no longer in possession of the weapons she had seen them with earlier. Ms. Pinson testified that she did ...

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