Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 20, 2016
from the Criminal Court for Knox County No. 105481 Steven
Wayne Sword, Judge
Defendant, Ronald Turner, was convicted of three counts of
attempted second degree murder when he fired a single shot
through a glass door at his child, the mother of his child,
and her roommate. The Defendant was also convicted of three
counts of employing a firearm in the commission of a
dangerous felony and one count of unlawful possession of a
handgun with the intent to go armed in a public place where
at least one person is present. The Defendant's
convictions for the three counts of attempted second degree
murder and the conviction for possession of a handgun were
enhanced after the jury found that the gang enhancement
statute applied. The Defendant appeals, challenging the
sufficiency of the evidence and the constitutionality of the
gang enhancement statute. We conclude that the evidence is
insufficient to support two of the convictions for attempted
second degree murder, and we reverse these convictions and
the weapons offenses predicated on them. The Defendant raised
the constitutional argument for the first time in the motion
for a new trial, and the State argues that the issue is
waived. We conclude that the statute is unconstitutional and
that the Defendant is entitled to relief from the gang
enhancement applied to his sentences. We affirm the judgments
of the trial court in all remaining respects.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed in Part; Reversed in Part; Case Remanded
Liddell Kirk (on appeal), and Michael Graves (at trial),
Knoxville, Tennessee, for the appellant, Ronald Turner.
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; Charme
Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State
Everett Williams, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and James Curwood Witt, Jr.,
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
firing a shot through a glass door toward the three victims,
the Defendant was charged with three counts of attempted
first degree premeditated murder, three counts of employing a
firearm during the commission of a dangerous felony, and one
count of carrying a handgun with the intent to go armed at a
place open to the public where at least one person was
present. The Defendant was also charged under the gang
enhancement statute for the three counts of attempted first
degree murder and the count charging possession of a handgun.
Prior to trial, the State dismissed a charge of aggravated
burglary and charges for employing a firearm in a dangerous
felony and gang enhancement which were predicated on the
aggravated burglary charge. At trial, the State presented
testimony and physical evidence tending to establish that the
Defendant fired a gun through a glass door leading to the
balcony of the home where his child and the mother of his
Bredaisha Walden testified that she lived in an apartment
with Ms. Jahdaiah Cody on December 10, 2014. Ms. Cody and the
Defendant had a three-year-old son. Ms. Walden testified that
she was taking a bath when she became aware of raised voices;
in particular, she heard Ms. Cody saying, "[S]top."
Ms. Walden got dressed. When Ms. Walden emerged from the
bathroom, she did not see anyone other than Ms. Cody and her
son in the home, and she noticed Ms. Cody's hand had a
cut that had not been there when Ms. Walden went into the
bathroom. Ms. Walden decided to look out of the glass door
leading from the kitchen to the balcony because she was
worried about her own safety. She went to the glass door in
the kitchen, and the Defendant's three-year-old son
followed her and stood beside her at the glass door. Ms.
Walden testified that she did not know the Defendant well but
was familiar with his face from seeing pictures on Ms.
Cody's Facebook page and from seeing him at the
McDonald's restaurant where she worked. Ms. Walden saw
the Defendant outside walking quickly with Tamon Stapleton;
they both wore black. The Defendant was approximately five
feet from the balcony. The Defendant turned around and
"just looked at [Ms. Walden] for a second." He then
raised a gun and shot toward Ms. Walden and his child. Ms.
Walden testified that Ms. Cody was behind them but in another
room. The bullet hit a microwave and deflected onto the
floor. According to Ms. Walden, the bullet would have
traveled toward Ms. Cody if the microwave had not stopped it.
Ms. Walden saw the Defendant run. She took the child to the
bathroom for safety while Ms. Cody called 911. Ms. Walden was
able to identify the Defendant from a photographic lineup.
defense asked Ms. Walden how she knew the name of the
Defendant's companion, and she stated that Ms. Cody told
her "who both of them were" and agreed that she
"didn't know [herself] until [Ms. Cody] told [her]
who it was … out the door." On redirect
examination, she clarified that Ms. Cody had told her that
the two were in the house prior to the shooting but that Ms.
Walden saw the Defendant and recognized him as he shot at
her. When she was again cross-examined, Ms. Walden clarified
that Ms. Cody had told her who the two were "before all
this happened, " "in school."
State did not anticipate being able to introduce the
testimony of Ms. Cody, who had been avoiding process.
However, she was located during trial, and she testified
regarding the shooting. Ms. Cody testified that the Defendant
came into her home and that they got into a fight in the
hallway. She testified that she "fought back." Ms.
Cody stated that the Defendant pushed her into a closet off
the hallway, pulled his gun out, pointed it at her head, and
pulled the trigger. The gun did not go off. She stated that
after the Defendant left, Ms. Walden and Ms. Cody's child
were standing by the window, and she was in the hallway
behind Ms. Walden. She testified that the Defendant shot
through her window and into a microwave. She called 911
because she was concerned about her child. She picked the
Defendant as the shooter out of a photographic lineup. Ms.
Cody acknowledged that in her statement to police, she said
that the Defendant came through her balcony, pushed her into
the closet and pulled the trigger, cut her hand with a knife
and hit her in the head, walked out, and finally shot through
the window at Ms. Walden and her son.
cross-examination, Ms. Cody described the altercation as
"he pushed me, I pushed him, that's about it."
However, she also acknowledged that she had a knife, that she
tried to cut the Defendant with it, and that that was
"probably" when he pulled out the gun. Ms. Cody
also acknowledged that she did not see the Defendant shoot
because she was standing behind Ms. Walden and her son. She
testified that the Defendant and Mr. Stapleton looked
State introduced the testimony of Michael Mays to establish
that Ms. Cody made a telephone call to 911 at 12:28 p.m. on
December 10, 2014. Officer Russell Whitfield with the
Knoxville City Police Department forensic unit photographed
the crime scene. Officer Whitfield recovered a bullet from
the kitchen floor and photographed a hole in a vertical blind
next to a glass door and a hole in a microwave where the
bullet had hit. The bullet ultimately came to rest
approximately thirty inches from the glass door. Officer
Whitfield testified that when he arrived on the scene, he was
advised that the area had been searched and that no further
evidence was found. However, he returned shortly before 4:00
p.m. to collect a bullet casing from the sidewalk outside the
cross-examination, Officer Whitfield agreed that the area had
been left unsecured for approximately three hours prior to
the collection of the casing. He acknowledged that the bullet
casing could have been moved or kicked closer to the building
while the area was unsecured. He noted that the casing was
ultimately recovered on a sidewalk, and photographs show that
the location was down a set of steps from the area where Ms.
Walden indicated the Defendant was standing when he shot.
Officer Whitfield testified that the bullet entered the home
at an angle.
John Pickens arrested the Defendant on January 3, 2015. At
that time, Officer Pickens collected a firearm that the
Defendant carried in his waistband.
Patricia Resig, a firearms examiner in the forensic unit of
the Knoxville Police Department, examined the bullet from Ms.
Cody's kitchen, the bullet casing from the sidewalk, and
the firearm from the Defendant's waistband. She was able
to determine that the bullet and casing had both been fired
by the Defendant's semiautomatic pistol. She demonstrated
that, after the magazine was placed into the gun, a bullet
would not be present in the chamber until the slide had been
pulled back. The gun would then be ready to fire a bullet.
Once the gun had fired, another cartridge would automatically
be loaded if the magazine contained one.
Defendant testified that Ms. Cody was the mother of his child
and that, although she had another boyfriend at the time, he
"took care of her." According to the Defendant, he
and Mr. Stapleton came to the house that day and waited for
Ms. Cody to open the door because it was locked, although he
usually would enter without knocking. The Defendant testified
that he had left a package of marijuana in his three-year-old
son's room because he did not feel it would be safe at
his house. He had instructed Ms. Cody not to let anything
happen to the marijuana. He testified that Ms. Cody did not
smoke or sell marijuana.
Defendant did not see Ms. Cody with a knife when she opened
the door. However, as he started to walk down the hallway to
get the package of marijuana, Ms. Cody produced a knife and
began to yell that the drugs were not there. The Defendant
testified that Ms. Cody swung the knife at him. Ms. Cody told
the Defendant that he should never have left marijuana there.
The Defendant testified that he pulled the gun out after Ms.
Cody got too close to him with the knife. He at first
acknowledged pointing the gun at her, but later stated that
he did not point it at her but held it up as though to strike
her with it. He denied attempting to fire the gun, and he did
not recall being in a closet. Although he testified that Ms.
Cody did not put up a fight and was "submissive, "
he also stated that he had to grab the knife from her,
resulting in a cut on her hand. The Defendant was aware that
Ms. Walden was in the bathroom but did not see her. He saw
that his son was there. Ms. Cody told the Defendant that her
boyfriend would arrive at 10:00 p.m., and the Defendant and
Mr. Stapleton left through the front door, planning to return
then to try to recover the marijuana. The Defendant testified
that he was "not really upset" but would have been
upset if he had returned at 10:00 p.m. and had not gotten
Defendant testified that he and Mr. Stapleton were walking
outside when Mr. Stapleton saw Ms. Walden at the window.
According to the Defendant, Mr. Stapleton fired the shot. The
Defendant stated that Mr. Stapleton shot because he thought
Ms. Walden was smiling, and the Defendant stated he did not
see his son standing there due to the blinds. According to
the Defendant, Mr. Stapleton shot Mr. Stapleton's own
gun, not the gun the Defendant had brandished in the
apartment. Because residents of the complex were emerging
from their homes, the Defendant pretended he was being shot
at, and the two left. The Defendant stated he was angry with
Mr. Stapleton for shooting because his son was in the home
and because Ms. Cody was pregnant at the time. The Defendant
would not let Mr. Stapleton get in the car until Mr.
Stapleton gave him the gun used in the shooting. Four days
later, the Defendant returned Mr. Stapleton's gun to him.
The Defendant reacquired the gun when, during Mr.
Stapleton's incarceration, the Defendant's brother
was shot in the head in the presence of Mr. Stapleton's
brother. Mr. Stapleton's brother gave the Defendant the
Defendant's brother's belongings, and the gun was
among them. The Defendant testified that he was wearing
maroon on the day of the shooting. He did not have a permit
to carry a gun. Mr. Stapleton was deceased at the time of the
Defendant acknowledged that he had spoken to Ms. Cody's
brother about the case, that he told Ms. Cody's brother
the case was not dismissed because Ms. Walden had come to the
preliminary hearing, and that he never mentioned to Ms.
Cody's brother that he was not the shooter. The Defendant
explained that Ms. Cody's brother was aware that the
Defendant was not the shooter. The Defendant agreed that Mr.
Stapleton's hair was "a little" longer than the
Defendant's at the time of the crime. He stated that they
had on hats. Photographs of the Defendant and Mr. Stapleton
were introduced into evidence. The Defendant acknowledged
that, during testimony in a prior case regarding possession
of a firearm, he had stated that he was in Chicago on
December 10, 2014. He explained that he believed the
prosecution was mistaken about the date of the offenses.
prosecution argued in closing that the Defendant's act of
firing the gun at the glass door supported the three counts
of attempted first degree premeditated murder, as well as the
firearms offenses. The jury convicted the Defendant of three
counts of the lesser-included offense of attempted second
degree murder. The Defendant was convicted as charged of the
offenses involving firearms.
second phase of the trial, the State introduced records
regarding seven defendants who were convicted of fifteen
felonies and one Class A misdemeanor between the years of
2009 and 2012. The State also presented the expert testimony
of Thomas Walker, supervisor of the Homeland Security Gang
Intelligence Unit in the Knox County Sheriff's Office.
Mr. Walker testified that the Vice Lords were a gang that
originated in Chicago in the 1950s and belonged to the People
Nation with other gangs like the Bloods or Latin Kings. He
stated that the gang was present in Knoxville and had subsets
including the Unknown Vice Lords or Ghost Vice Lords.
Walker stated that before the Gang Intelligence Unit would
classify someone as a member of a gang, the person would have
to score at least ten points on a point system used by the
Tennessee Gang Investigator Association, and the person would
additionally have to meet the state law definition of a gang
member. Mr. Walker testified that points were awarded for
tattoos, graffiti, hand signs, wearing gang colors, felony
criminal history, known gang associations, confirmation from
an outside source, and admission of gang membership. He
specified that wearing colors was awarded only one point
because it was only loosely affiliated with gang membership.
An admission of gang affiliation would be awarded nine
points, just one point shy of the number required for
classification as a gang member. Mr. Walker testified that
the seven persons whose criminal convictions had been
introduced into the record had all been identified as members
of the Vice Lords gang, and he detailed the basis for
identifying each as a gang member.
Walker testified that the Vice Lords had a membership of
forty-two persons in the city and that the gang had a mission
of committing crimes. He testified that the Defendant was a
member of the Vice Lords. Mr. Walker stated that the
Defendant was identified as a gang member based on pictures
of him "throwing hand signs, " pictures of the
Defendant wearing gang colors, the Defendant's felony
criminal history, his gang-specific tattoos, his arrest for
violent crimes and weapons possession, and his admission of
Walker specifically pointed to a photograph of the
Defendant's tattoo of a five-pointed crown, which Mr.
Walker stated was a symbol of the People Nation. He also
pointed to a tattoo of a "2" on one of the
Defendant's arms and a "1" on the other. Mr.
Walker testified that the two and one were read together to
signify the twenty-first letter of the alphabet, "u,
" which stood for "Unknown Vice Lord." He
identified the Defendant's tattoo of a stop sign on the
corner of two streets, Augusta and Monticello, which he
testified was "literally … the street corner of
the Vice Lords from Chicago." He identified other
tattoos which the Defendant had that were not gang-related.
introduced photographs of the Defendant wearing a red hoodie
with a five-pointed star, which he testified was a symbol of
the People Nation, and red shoes, which he stated were gang
colors. He identified another picture of the Defendant
wearing a red shirt and fanning out several hundred dollar
bills, and a separate photo of the Defendant fanning out
money and holding up five fingers, which he testified was a
number significant for the Vice Lords. He identified the
Defendant in a photograph with other known gang members,
including Mr. Stapleton. He also identified the Defendant in
a photograph with others "throwing the Unknown Vice Lord
hand sign." The photograph was taken from Facebook where
one user had commented "Gs For my Ghost Squad, "
which Mr. Walker testified was another name for the Unknown
Vice Lords. He also identified a hand-drawn picture posted to
the Defendant's Facebook page as graffiti which included
symbols for the gang.
Walker testified that the Defendant, after his arrest, saw an
officer who was part of the gang investigation team. He
yelled to her, "[W]hat's up, gang unit, you've
got me for life, congratulations, I hope you're f***ing
happy." The officer asked him if he was affiliated with
a gang, and he responded, "[Y]es, why do you think
Walker acknowledged that the Defendant's hoodie was mass
manufactured and that anyone could wear red or request a
tattoo without being the member of a gang. He acknowledged
that someone else had posted the graffiti on the
Defendant's Facebook page. He also stated that he did not
have any information connecting the Defendant with the gang
members whose convictions had been introduced.
Defendant testified that he was not a member of the Vice
Lords gang and that he did not know any of the offenders
whose crimes had been made part of the records. He stated
that some of his tattoos were from a song, that the
"2" and "1" stood for "two chances
and one decision, " and that he had not asked for a
five-point crown tattoo but the non-professional who was
tattooing the "2" and "1" tattooed it to
show his skill. He stated that the street corner was the
address of his grandfather. He also explained that there was
no significance in his red shoes or the hoodie, which
belonged to someone else. He denied the others in his
photographs were gang members. He ...