Assigned on Briefs December 6, 2016
from the Criminal Court for Shelby County No. 13-01736 W.
Mark Ward, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Terrell L. Tooten, Memphis, Tennessee, for the appellant,
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
E. Glenn, J., delivered the opinion of the court, in which
Norma McGee Ogle and Robert L. Holloway, Jr., JJ., joined.
E. GLENN, JUDGE
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.
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.
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.
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
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
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.
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.
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
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.
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.
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.
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.
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
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.
this testimony, the State rested, as did the defendant.
review the issues raised on appeal by the defendant.
Recording of Defendant's Jailhouse Telephone
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 ...