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State v. Sample

Court of Criminal Appeals of Tennessee, Jackson

April 6, 2017

STATE OF TENNESSEE
v.
EDWARD SAMPLE

          Assigned on Briefs December 6, 2016

         Appeal from the Criminal Court for Shelby County No. 13-01736 W. Mark Ward, Judge.

         The defendant, Edward Sample, was convicted of the unauthorized use of a motor vehicle, attempted second degree murder, employing a firearm during the commission of attempted second degree murder, aggravated assault, intentionally evading arrest in a motor vehicle, and evading arrest. He was sentenced, respectively, to eleven months and twenty-nine days, twelve years, six years, six years, two years, and eleven months and twenty-nine days. The trial court found him to be a dangerous offender and ordered that all sentences be served consecutively, resulting in a total effective sentence of twenty-seven years, eleven months and twenty-eight days. On appeal, the defendant argues that the trial court erred by admitting into evidence a recording of his jailhouse phone call, by charging the jury regarding his admission against interest, and by enhancing his sentences and ordering that they be served consecutively. Additionally, he argues that double jeopardy results from his convictions for attempted second degree murder and employing a firearm during its commission and that the State's closing argument was improper. Following our review, we affirm the judgments of the trial court.

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

          Terrell L. Tooten, Memphis, Tennessee, for the appellant, Edward Sample.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Pamela D. Stark and Joshua Corman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The victim, Brian Green, testified that on April 4, 2012, the defendant carjacked his vehicle and shot at him several times as he ran from the scene. The victim said he had left McDonald's, where he was employed, around 1:00 a.m. and drove to his residence. As he got out of his vehicle, he was met by the armed defendant and another man. Ordered by the defendant to get into the trunk of the vehicle, he instead ran and was shot at several times by the defendant. When the victim reached his apartment, he told Ebony Walters, his girlfriend, what had happened. Since she earlier had obtained a domestic assault warrant against the victim, she suggested that they tell the police that the victim had been her brother, Latroy Walters, which they did.

         The victim said that his brother, Akaia Scott, saw the stolen vehicle several days later and telephoned the police. Because of what occurred when officers arrested the defendant, the victim decided to tell them what actually had occurred when the vehicle was stolen. After viewing a photographic lineup, the victim identified the defendant as the one who had stolen his vehicle and shot at him.

         Ebony Walters testified that she had suggested she and the victim tell police officers that her brother was the victim, so Mr. Green would not be arrested because of the domestic assault warrant. However, after Officer Josh Shearer was shot while trying to arrest the defendant, she suggested that the victim tell the police what actually had happened.

         Akaia Scott testified that he owned the vehicle taken by the defendant, but the victim was allowed to use it because he had been making the monthly payments for it. Mr. Scott said that several days after the defendant had taken the vehicle, he saw it being driven by the defendant in a store parking lot. Mr. Scott said his own appearance was very similar to his brother, the victim, and the defendant looked at him and said, "I thought I killed you." When the defendant pointed a gun at him, Mr. Scott ran and jumped into a ditch. As he got out of the ditch, Mr. Scott flagged down a police car and told the officers what had happened and that the perpetrator had fled to the nearby Lantern Square Apartments. Mr. Scott subsequently identified the defendant from a series of photographs.

         Angelina Triplett testified that, on April 4, 2012, she was driving home from college and saw a speeding gray car, being chased by the police, coming toward her. She stopped her car, and the gray car jumped the curb and wrecked in some bushes. She described the driver as African-American, with unusual hair, slender, and wearing baggy clothes, which were falling off. He was holding up his pants with one hand and had a pistol in the other. A police officer ran into the bushes after him, and Ms. Triplett next heard several gunshots, which frightened her, so she drove to her apartment complex across the street.

         Officer Matthew Morton testified that he had been employed by the Memphis Police Department ("MPD") for six years and, on April 4, 2012, was working the 2:00 p.m. to 10:00 p.m. shift. During that shift, as he and his partner, Officer Josh Shearer, were on James Road, they were flagged down by a man who said that he had been carjacked and that the thief had pointed a pistol at him and taken his car, a silver Chevrolet Impala. As the officers turned into a nearby apartment complex, they saw what appeared to be the victim's vehicle, which they were unsuccessful in stopping. The fleeing vehicle went into oncoming traffic and then crashed in a grassy area with trees. Officer Morton saw the defendant running and going into the woods. Officer Shearer chased the defendant on foot while Officer Morton checked to make certain no one else was in the vehicle. Officer Morton then ran in the direction the defendant had taken and heard a series of gunshots in "real quick succession." He yelled for his partner, and "for a very long time, it was just silence." Officer Morton described the scene:

And then finally [Officer Shearer] said, I'm over here, I've been shot or I've been hit. And so I went over there and I saw the defendant on the ground and he was bleeding and there was a gun right next to him and so I moved the gun further away and then I saw [Officer Shearer], his uniform was torn right here, and so I . . . started taking his uniform off trying to see where he had been shot at.

         Officer Morton saw that Officer Shearer was bleeding, "in shock, " and "wouldn't let his gun go because he was so scared." The defendant was nearby, unconscious, handcuffed, and bleeding from the neck and head. After other officers arrived, Officer Shearer and the defendant were transported from the scene by ambulance.

         Officer Josh Shearer testified that on April 4, 2012, he was employed by the MPD and assigned to the North Precinct. He and Officer Morton were in the car together when they were flagged down by a man who told them he had been carjacked. The man told the officers that the thief had driven his car to a nearby apartment complex, and the officers then went there. The officers located the stolen vehicle, and the driver, later identified as the defendant, looked at them and drove off at a high rate of speed. The officers activated their siren and blue lights and pursued the defendant's vehicle. They saw it in a field, with the defendant running away. Officer Shearer yelled to the defendant to stop, show his hands, and get on the ground. When Officer Shearer caught the defendant, they were in the woods, and both went to the ground. The defendant repeatedly ignored the command that he show his hands to Officer Shearer, who holstered his pistol to try and control the defendant's hands. The defendant then rolled over and shot Officer Shearer once in the chest, with the second shot striking his baton in its holster. Officer Shearer shot at the defendant, who continued fighting him, and was able to grab the defendant's pistol and throw it aside. Officer Shearer then used his pistol to twice strike the defendant's head and then shot him a second time. The defendant was trying to take away Officer Shearer's pistol.

         Officer Eric Carlisle testified that he was employed by the MPD as a crime scene investigator and had responded to the shooting call. He secured from the scene a .40 caliber shell casing, a .380 shell casing, and a .380 handgun.

         Special Agent Eric Warren, a forensic scientist with the Tennessee Bureau of Investigation, testified that, in his opinion, the .380 pistol recovered from the crime scene had fired the bullet fragment found at the scene. Officer Sam Blue, a crime scene investigator for the MPD, testified that he had taken photographs of the scene and that the photograph of Officer Shearer's bulletproof vest showed a bullet hole. Shelby County Sheriff's Deputy Elvin Holmes testified that, when the defendant entered the jail, he was assigned a RNI number to use in making telephone calls. Sonia Rogers, employed by the Shelby County Sheriff's Office as a fingerprint technician, said that she had matched the defendant's fingerprints with those for the RNI number assigned to him. Officer James Smith, a MPD crime scene officer, testified that he had lifted a fingerprint from the trunk of the stolen vehicle. Robert Winston, a latent print examiner for the MPD Crime Scene Investigations Unit, testified that the print matched that of the defendant.

         Lieutenant Anthony Mullins of the MPD testified that the bulletproof vest and shirt worn by Officer Shearer had gunshot residue at the neck and midsection, as well as at a bullet hole on the edge of the vest.

         After he was released from the hospital, the defendant spoke with Officers Kevin Williams, Isreal Taylor, and Brian Beasley and denied that he had carjacked the vehicle, explaining that an individual named "Cut Throat" had given it to him earlier in the day. The defendant recalled that he fled from the police and was carrying a .380 pistol as he ran from the vehicle. He said that Officer Shearer had jumped on his back and that he had tried to fire Officer Shearer's pistol, but he was unable to do so.

         Anthony Washington, the defendant's brother, testified that he could not remember any statement he made to Officer Taylor. Officer Taylor testified that Mr. Washington had told him that the defendant had been driving the vehicle for several days.

         Officer Brian Beasley testified that, after he had taken the original car theft report, the victim and the others he had interviewed came to the police station and admitted they had not told the truth regarding the ownership of the vehicle. Officer Beasley listened to the recording of the jailhouse telephone call and identified the defendant's voice.

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

         ANALYSIS

         We will review the issues raised on appeal by the defendant.

         I. Recording of Defendant's Jailhouse Telephone Call

         The defendant argues that the trial court erred by allowing into evidence a portion of a telephone call he made from the Shelby County Jail, during which he discussed the carjacking and homicide charges against him and told of his plan to act "retarded" during the trial. As for the legal bases for this argument, the defendant asserts that the State failed to prove that the defendant's statement was made voluntarily and that the ...


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