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State v. Thompson

Court of Criminal Appeals of Tennessee, Jackson

March 9, 2017


          Session: October 4, 2016

         Appeal from the Criminal Court for Shelby County No. 14-03467 J. Robert Carter, Jr., Judge

         The defendant, Anthony Thompson, was convicted of the first degree premeditated murder of Barris Jones and sentenced to life imprisonment. On appeal, he argues that the trial court erred in allowing testimony regarding a hearsay statement of the victim as a dying declaration, in limiting the cross-examination of a co-defendant, and in allowing autopsy and crime scene photographs into evidence. Additionally, he argues that the evidence is insufficient to sustain the verdict. Following our review, we affirm the judgment of the trial court.

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

          John R. Holton, Memphis, Tennessee, for the appellant, Anthony Thompson.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Ray Lepone and Justin Prescott, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.


          ALAN E. GLENN, JUDGE


         The defendant was convicted of the first degree premeditated murder of the victim, which occurred at the apartment complex where the victim lived with his girlfriend. Shot eleven times at close range, the victim uttered the defendant's name after Memphis police officers arrived at the scene and asked for a "name." A few hours later, the victim died at a hospital.

         Officer Keith Holden testified that he had been employed for seven years by the Memphis Police Department and, on May 26, 2014, responded to a call at the Country Oaks Apartments, where people at the scene pointed him to "a male black down on his hands and knees with multiple gunshot wounds." Officer Holden ran to the victim and said, "Give me some information, give me a name, " and the victim said, "Anthony Thompson." Officer Holden described the victim as "in pretty bad . . . shape. He was down on his hands and knees. He was bleeding out the mouth, just kind of fading in and out[.]"

         On cross-examination, Officer Holden testified that he did not know whether the victim believed he was dying. He repeated that the victim was on his hands and knees, "bleeding very heavy, " with "blood dripping out his mouth, and, . . ., multiple shots all over his body." The victim was unable to stand and "was kind of fading in and out, but he was able to give [Officer Holden] that name[.]" Officer Holden said he did not ask the victim to stand up because "[f]rom his condition, . . . he seemed to be in real bad shape." According to defense counsel, without objection by the State, the 911 call for the victim was made at 5:29 p.m., and he died at 10:41 p.m.

         Marquitta Covington testified that the victim was the father of her baby, with whom she was pregnant at the time of the victim's death. They were living together in the apartment complex where he was killed. He had taken the garbage out at approximately 5:20 p.m., and Ms. Covington saw him "running back to the house, which [sic] two dudes w[ere] chasing him." When the victim fell, one of the men hit him, and then the other man hit him in the head with a gun, rendering him unconscious. She described the first man who chased the victim as "heavyset." A third man got out of the car, while the victim was unconscious, and stood "right on top of him, " shooting him "like eight times." Ms. Covington then identified the defendant in the courtroom as the man who shot the victim multiple times. After shooting the victim, the three men returned to their vehicle and left. The only thing Ms. Covington overheard the three men say to the victim was, "You think this shit a game?"

         Officer Christopher Slaughter of the Memphis Police Department Crime Scene Unit testified that he recovered certain items of evidence, took photographs, and made a sketch while at the crime scene. At trial, the defendant objected to Exhibit 11, consisting of a photograph of stains left by seven drops of blood on what appears to be a concrete walkway, and Exhibit 19, consisting of a photograph taken from a close distance of an article of clothing with significant bloodstains. Officer Slaughter said he recovered "approximately" nine shell casings at the scene.

         Lemarcus Rhodes testified that, on May 26, 2014, he was living at the Country Oaks Apartments, where the homicide occurred. At the time of the incident, he heard arguing outside and a voice saying, "You think it's a game?" He heard gunshots and saw three men, "two skinny [and] one heavyset, " who had a silver pistol. He agreed that, in his statement to police officers following the shooting, he had said, "The fat one had a silver gun. One of the skinny ones also had a gun. The third guy didn't have a gun that I could see. The fat guy did the shooting."

         The State's next witness, Eric Warren, testified that he was employed by the Tennessee Bureau of Investigation ("TBI") as a special agent/forensic scientist. He said that the TBI lab received an envelope containing three bullets from the Shelby County Medical Examiner's office. In his opinion, all nine of the cartridge cases submitted to his office had been fired by the same weapon. The two bullets and bullet fragments could have been fired by the same weapon, but, because of the damage to them, he could not say conclusively that this was the case. The bullets and casings were consistent with a 9-millimeter caliber.

         Officer Adam Pickering testified that he was employed by the Memphis Police Department and assigned to the Crime Scene Unit. On June 4, 2014, he examined a Chevrolet Malibu at the crime scene office, but nothing of significance was found inside the vehicle, and officers did not determine who owned it.

         Dr. Marco Ross, a forensic pathologist, testified that he performed an autopsy on the victim on May 27, 2014. The victim had been struck by eleven bullets. Gunshot wound A entered his right temple, in front of his right ear, and fractured the base of his skull. Gunshot wound B penetrated a muscle running from the victim's right ear to the base of his neck, continued into the chest where it perforated the aortic arch, the main blood vessel coming out of the heart, and penetrated the left lung. Gunshot wounds C and D were to the victim's right arm. Gunshot wound E was to the outside part of the victim's right elbow. Dr. Ross said the victim died from multiple gunshot wounds, and the death was classified as a homicide. He said it would have been consistent with these wounds that the victim was in and out of consciousness.

         Sergeant Kevin Lundy testified that he was employed by the Memphis Police Department and, in May 2014, had been assigned to the Homicide Bureau. After the defendant became a suspect in the shooting, and Sergeant Lundy had been unable to locate him, he sought assistance from other law enforcement agencies, which were also unsuccessful. In April 2015, he learned that the defendant had been arrested in Hinds County, Mississippi.

         Detective Andrew Terrell testified that in April 2015 he was assigned to the Fugitive Division of the Shelby County Sheriff's Office and, on April 9, 2015, transported the defendant from the Hinds County, Mississippi Detention Facility to 201 Poplar Avenue in Memphis.

         Testifying as a witness for the State, co-defendant Keron Cowan said that, along with the defendant and Thelron Richards, he was charged with the homicide of the victim. He said he knew the victim and the defendant from the neighborhood. On May 26, 2014, Mr. Cowan was at his grandmother's house, where a Memorial Day event was to be held, and received a telephone call from the defendant who said that the victim had just robbed him. Later, Mr. Cowan searched for the victim but was unable to locate him. At the time, Mr. Cowan was driving a 2005 silver Chevrolet Malibu with tinted windows. The defendant asked Mr. Cowan to take him to "Twin's"[1] residence at the Country Oaks Apartments. When they arrived, they saw the victim carrying out some trash. "Twin" then came running across the parking lot with a gun in his hand, as the victim threw the trash at Mr. Cowan and began running. Mr. Cowan hit the victim, who fell down, and "Twin" hit the victim in the back of the head with a pistol. The defendant pointed a pistol at Mr. Cowan and told him to move out of the way, which he did. As Mr. Cowan was walking away, he heard "lots" of gunshots behind him. He got back into his car and was waiting for the exit gate to open when the defendant jumped into his car. Mr. Cowan drove a short distance and told the defendant to get out, which he did. Until the pistol was pointed at him, Mr. Cowan did not know the defendant was armed. The next morning, Mr. Cowan called the Memphis Police Department to tell about the shooting.

         Following this testimony, the State rested its case, as did the defendant.


         I. Dying Declaration

         The defendant argues that the trial court erred in admitting a hearsay statement of the victim as a dying declaration exception to the hearsay rule, saying that the victim did not have a certain belief that death was inevitable. We will review this argument.

         Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tenn. R. Evid. 801(c). Generally, hearsay statements are inadmissible unless they fall under one of the recognized exceptions to the hearsay rule. Id. at 802. The dying declaration is one such exception to the hearsay rule. Rule 804(b)(2) of the Tennessee Rules of Evidence provides that "a statement made by a declarant while believing that the declarant's death was imminent and concerning the cause or circumstances of what the declarant believed to be impending death" is an exception to the rule against hearsay.

         This court has noted that a statement must satisfy the following five elements to qualify as a dying declaration: (1) the declarant must be dead at the time of the trial; (2) the statement is admissible only in the prosecution of a criminal homicide; (3) the declarant must be the victim of the homicide; (4) the statement must concern the cause or the circumstances of the death; and (5) the declarant must have made the statement under the belief that death was imminent. State v. Lewis, 235 S.W.3d 136, 149 (Tenn. 2007); State v. Hampton, 24 S.W.3d 823, 828-29 (Tenn. Crim. App. 2000).[2] The last requirement provides the indicia of reliability and truth that justifies admission of the statement. See Neil P. Cohen et al., Tennessee Law of Evidence, ยง 8.36[2][e] (6th ed. 2011). "[I]t is not necessary that the declarant state unequivocally a belief that death is imminent. Awareness of impending death has been inferred from the language and condition of the declarant, the facts and circumstances surrounding the ...

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