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State v. Durant

Court of Criminal Appeals of Tennessee, Nashville

January 18, 2017

STATE OF TENNESSEE
v.
NICHOLAS RICO DURANT

          Assigned on Briefs November 12, 2015

         Direct Appeal from the Circuit Court for Montgomery County No. 41200556 Michael R. Jones, Judge[1]

         A jury in the Montgomery County Circuit Court found the Appellant, Nicholas Rico Durant, guilty of the first degree premeditated murder of his wife, and the trial court sentenced him to life imprisonment. On appeal, the Appellant contends that the evidence was not sufficient to establish beyond a reasonable doubt that he acted with premeditation and that the trial court's jury instruction regarding premeditation was not sufficient to "satisfy state and federal constitutional rights to due process and trial by jury." Upon review, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Roger E. Nell and Crystal Myers, Clarksville, Tennessee, for the Appellant, Nicholas Rico Durant.

          Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

          The Appellant's conviction stemmed from the death of his twenty-three-year-old wife, Shardae Wright. The shooting occurred in The Groves apartment complex in Clarksville in the early morning hours of March 3, 2012, approximately one week after their marriage. The Appellant admitted that he shot the victim but contended that he shot her "while in a state of rage" during an argument.

         Staff Sergeant Shavonde Chase testified that in January 2012, she was stationed at Fort Campbell. On March 1, she moved into an apartment in The Groves with two other women, one of whom was the victim. Sergeant Chase did not know either woman before she moved into the apartment.

         On the evening of March 2, Sergeant Chase, who was asleep in her room, was awakened when she heard arguing. She left her bedroom, reminded her roommates that she was there, went to the kitchen, then returned to her bedroom. She did not notice anything amiss. She fell asleep again and was awakened by the victim's knocking on her door. The victim ran into the bedroom, followed seconds later by the Appellant, who had a gun. Sergeant Chase said that the victim and the Appellant might have said things "back and forth, " but the only thing she could recall specifically was the victim's saying, "Please don't, I have kids." The two women ran into the bathroom. Sergeant Chase told the Appellant to calm down and asked "what was happening." The Appellant came into the bathroom and pointed a gun at the victim. Sergeant Chase ran around the Appellant and out of the apartment. As she was leaving, she heard gunshots.

         Sergeant Chase said that on the evening of the shooting, she was wearing pajama pants and a blue, long-sleeved top. Her hair was either in a bun or a ponytail. After she left the apartment, she ran to the housing office to try to find a telephone to call for help. Unable to find a telephone, she went to Building 10, stopped a woman in a car, and used her telephone to call 911.

         Sergeant Chase did not recall if she or the victim shut the door when they went into the bathroom and did not recall if the Appellant did anything to the door. She recalled, though, that the bathroom door was not damaged before that night. Sergeant Chase said that she was a heavy sleeper and would not be surprised if she had slept through some gunshots.

         Sergeant Chase said that four days after the shooting, she spent three weeks in Skyline, a mental health facility, recovering from "issues" stemming from the shooting. She acknowledged that the offense still affected her. She also acknowledged that her memory of the day of the shooting was "bad" and that she did not remember many details, just "the climax of it all." Sergeant Chase said that she had never met the Appellant before that night.

          Sergeant England Thomas Phillips testified that he met the Appellant and the victim while they were stationed at Fort Campbell. He thought the Appellant began dating the victim late in 2011 and knew the Appellant had a child with another woman, Dedra Allen. Sergeant Phillips had heard that the Appellant and the victim often fought and then reconciled, but he never witnessed any problems between them. The Appellant never told Sergeant Phillips about any problems between Allen and the victim. Sergeant Phillips said the Appellant was "quiet" about getting married, seemed happy that he had a child, and wanted to be a good father.

         Sergeant Phillips said that one or two days before the victim was killed, the Appellant and the victim came to Sergeant Phillips's house around 8:00 p.m. Sergeant Phillips estimated that The Groves apartment complex was approximately ten minutes from his house. While Sergeant Phillips cut the Appellant's hair, the victim sat on the couch next to Sergeant Phillips's wife, who was holding the Appellant's baby. Neither the Appellant nor the victim appeared to have been drinking. Sergeant Phillips saw a cut, which appeared to be healing, on the Appellant's arm. The Appellant said that the victim had cut him about a week before, and he did not seem to be bothered by the cut. The Appellant left when the haircut was finished. Sergeant Phillips said that he and the Appellant had planned to attend a ball game honoring soldiers the next day.

         Sergeant Phillips said that around 5:00 p.m. the next day, Detective Mike Ulrey came to Sergeant Phillips's house and asked if Sergeant Phillips knew where the Appellant was. While the police were there, the Appellant called, and Sergeant Phillips let Detective Ulrey speak with the Appellant. Regarding the shooting, Sergeant Phillips said, "I never seen (sic) it coming."

         On cross-examination, Sergeant Phillips stated that the Appellant was generally a calm person and that he had never seen the Appellant lose his temper. He described the Appellant as an "outstanding soldier" who was honest and athletic and had never given Sergeant Phillips problems.

         On redirect examination, Sergeant Phillips said that the Appellant was "very together, " "[i]n control of himself, " and did not have difficulties at work. Sergeant Phillips never saw the Appellant act afraid of anyone, including the victim, and opined that the Appellant, who had been through combat training, had no reason to fear anyone. Sergeant Phillips said that the Appellant married the victim ten or eleven days before the shooting. Although the Appellant did not talk about his concerns, Sergeant Phillips surmised from the Appellant's facial expressions that the Appellant had "doubts" about his marriage and that the Appellant thought "he may have moved too fast on that one."

         Darion Antwaine Pittman testified that he spent a lot of time at Kim Rose's apartment at The Groves. At the time of the shooting, Rose and the victim were sharing an apartment, but they did not know each other very well. Pittman explained that residents of The Groves did not have the option of choosing a roommate. Pittman had never seen the Appellant prior to the night of the shooting and had seen the victim only a couple of times.

         Pittman said that he went to the victim's apartment around 7:00 p.m. on March 2. The victim and Twan McBride walked in with a baby. The victim and the man left to "drop off" the baby and returned with some alcohol. Rose had a drink then left the apartment.

         Pittman said that around 9:00 p.m., the Appellant came to the apartment. Pittman, the Appellant, McBride, and the victim talked about whether to go to a club or play cards. Pittman said everyone had been drinking, but they were not drunk. The victim did not want to go out, and the Appellant decided to stay at the apartment. The Appellant explained that he knew the victim would get mad if he went out and that he did not want to fight with her. Thereafter, while McBride was getting ready to go to the club, the victim and the Appellant went into her bedroom. Pittman looked inside the victim's bedroom and saw the victim sitting on her bed with a laptop computer in front of her. The Appellant pulled a black box from underneath the bed, opened the box, removed a gun, and showed the gun to Pittman and McBride. Pittman said the gun had "a honeycomb shaped barrel" and a "long clip." When Pittman and McBride left the apartment, the Appellant followed them to the parking lot. Pittman said the Appellant walked as if he had something under his shirt. Pittman did not hear a disagreement between the victim and the Appellant that night. Pittman never saw the Appellant in the victim's bed and did not see the victim throw water on the Appellant.

         Pittman said that later that night, McBride received a telephone call and learned that the victim had been killed. McBride and Pittman returned to The Groves but could not get inside the complex because the police were there.

         On cross-examination, Pittman said that on the night of the offense, everyone in the apartment was drinking "shots" of vodka and gin. He could not recall whether the alcohol was mixed with anything. Pittman estimated that he and McBride left the apartment around 10:30 p.m. Pittman thought the Appellant had the gun when he followed the men outside but was not certain. Pittman did not know if the Appellant returned to the apartment.

         Brian D. Casto testified that at the time of the offense, he lived with his girlfriend Stephanie Buchanan and Jerry Dolnick at the apartment across from the victim's apartment. He had seen the victim and the Appellant on one or two occasions. Shortly before Casto went to bed on the night of the shooting, he walked outside and smoked a cigarette. He did not notice anything unusual. He went to bed around 11:20 or 11:30 p.m. and fell asleep twenty to twenty-five minutes later. At midnight, he was awakened by a "series of loud noises" that sounded like gunshots. They occurred two to five minutes apart. Casto also heard a scream.

         Casto called the police officer who worked at the apartment complex. When the officer did not answer the call, Casto called 911 then walked to the front door and looked out the peephole. Upon seeing nothing, he opened the door. Five or six steps down the stairs, he saw an open gun case. The lock on the front door of the victim's apartment appeared to have been "tampered with." Nine or ten bullet holes were in the door, and shell casings were on the landing in front of the victim's door.

         On cross-examination, Casto said that he did not see anyone outside while he was smoking. He said that the apartment complex was unusually loud on Friday nights and Saturday mornings because of college students "partying."

         Stephanie Buchanan testified that in March 2012, she was living in an apartment at The Groves with Casto, Jerry Gammon, and John Wallace. Around 11:45 p.m., she and Wallace were smoking outside in the stairwell leading to the third floor. Buchanan saw a man come up the stairs, pause and turn as if he were drunk or lost, then go down the stairs. A few seconds later, the man started up the stairs and then paused in the middle of the stairway. Buchanan heard "a shuffling and a clicking" and assumed that the man had dropped something. The man asked for directions to apartment 620, and Buchanan informed him that there was no apartment 620, explaining that all of the apartment numbers ended in 1, 2, 3, or 4.

         Buchanan testified that she did not get a good look at the man's face because she was paying attention to his behavior. She described him as "an average black guy, regular street clothes, nothing really stood out, . . . short hair, clean-shaven, looked like a normal kid." She said the man was of average height, which she estimated was between five feet and eight inches and five feet and ten inches, weighed an estimated 190 pounds, and had an athletic build. His complexion was "medium, " neither dark nor light.

         After seeing the man, Buchanan and Wallace returned to the apartment. A couple of minutes later, she heard gunshots.

         On cross-examination, Buchanan said that she would not consider someone over six feet tall to be of average height. Buchanan did not really notice the man's clothes but thought the man was wearing "[r]egular street clothes, " which may have been jeans and a t-shirt. She did not see a gun case, but she explained that she "didn't go over to look."

         Buchanan estimated that it was midnight when she returned to her apartment. She heard the gunshots minutes later. She described the shots as "very rapid fire" and estimated that a couple of minutes elapsed between the first and last shots. Buchanan said that a lot of military personnel and college students lived in the apartment complex, that parties occurred frequently, and that seeing strangers around the complex was not unusual. Buchanan acknowledged that the police had her look at photographs and that she identified someone other than the Appellant as the man she saw.

         Joshua Day testified that on the night of the shooting, he was attending a party in Building 7 of The Groves. Sometime between 11:00 p.m. and 1:00 a.m., he went out on the second floor landing near Building 6. He saw someone at Building 6 then heard "pop, pop, pop." He noticed "some smoke, some flash from what . . . [he] heard." Day said that he did not get a good look at the individual at Building 6 but acknowledged he later told the police that the person's hair was short and was either a new haircut or a receding hairline.

         Day called 911 as he walked to the second floor of Building 6, where he had seen the flash. He saw bullet holes in an apartment door, and the door appeared to have been kicked in. He told the 911 operator that he heard seven or eight shots, a pause of thirty to forty-five seconds, a few muffled shots, a few more seconds of quiet, and then more muffled shots.

         At some point, the police showed Day a photograph lineup, from which he identified the Appellant. Day said that he did not know the Appellant, the victim, or anyone who lived in Building 6.

         On cross-examination, Day said that Building 7 was approximately 200 feet from Building 6. Nonetheless, he was able to identify the Appellant in the photograph lineup. Day estimated that approximately two minutes elapsed from the first shot to the last shot. Day said that he saw the Appellant leave the apartment where the shooting occurred; the Appellant was walking fast but not running.

         On redirect examination, Day said that he told the police that he saw the Appellant back away from the door and then heard shots. He also said that he thought the Appellant struggled with the door before going inside the apartment. Day heard more shots thirty to forty-five seconds after the first shots.

         Tamara Foster testified that in March 2012, she lived on the first floor of Building 5 of The Groves. From her bedroom window, she could see the side of Building 6. On the night of the shooting, Foster was lying in bed talking on the telephone when she heard loud, banging noises that she thought were gunshots. She got up and looked out the bedroom window. She saw a man kick in or break a door of an apartment in Building 6, and then the man walked into the apartment. Three to five minutes later, she saw a black woman with her hair in a ponytail and wearing a tank top and pajama pants run from the apartment. About two minutes later, the man walked out of the apartment, down the stairs, and toward Foster's bedroom window. He dropped something in the grass then bent and picked it up.

         Foster said that she had never seen the victim or the man before that night. She told the police that the man was wearing red and black basketball shorts. During trial, she identified a photograph of the Appellant's shorts, which were red and blue.

         Foster acknowledged that she did not call 911. She explained that she thought nothing serious had happened because she saw the woman run away.

         Clarksville Police Officer John Daniel Bushnell testified that on the night of March 3, 2012, he went to the victim's apartment. He said that he found bullet casings in the stairwell leading up to the second floor, more bullet casings on the landing outside of the victim's apartment, and bullet holes in the front door. The front door was open. It appeared that someone had kicked the door open, and the lock was damaged.

         Officer Bushnell said that the apartment had a common area, a common kitchen, and three bedrooms that each had a private bathroom. The door to the first bedroom, which Officer Bushnell referred to as room A, was closed. He went inside room A, but it was empty. The apartment's second bedroom, room B, was also empty. The door to room B appeared to have been kicked open. Inside the bathroom of the third bedroom, room C, Officer Bushnell saw multiple bullet holes and several bullet casings on the floor. The victim, ...


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