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State v. Turner

Court of Criminal Appeals of Tennessee, Knoxville

May 5, 2017

STATE OF TENNESSEE
v.
RONALD TURNER

          Assigned on Briefs December 20, 2016

         Appeal from the Criminal Court for Knox County No. 105481 Steven Wayne Sword, Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Case Remanded

          J. 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 of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and James Curwood Witt, Jr., J., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE.

         FACTUAL AND PROCEDURAL HISTORY

         After 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 child lived.

         Ms. 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.

         The 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."

         The 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.

         On 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 "[l]ike twins."

         The 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 balcony.

         On 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.

         Officer John Pickens arrested the Defendant on January 3, 2015. At that time, Officer Pickens collected a firearm that the Defendant carried in his waistband.

         Officer 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.

         The 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.

         The 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 "some answers."

         The 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 trial.

         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.

         The 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.

         In the 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.

         Mr. 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.

         Mr. 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 gang membership.

         Mr. 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.

         He also 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.

         Mr. 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 I'm here[?]"

         Mr. 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.

         The 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 ...


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