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State v. Cosper

Court of Criminal Appeals of Tennessee, Knoxville

May 12, 2017


          Session September 20, 2016

         Appeal from the Criminal Court for Hamilton County No. 285969 Barry A. Steelman, Judge No. E2016-00212-CCA-R3-CD

         The Defendant, Ronald Levon Cosper, was convicted of first degree felony murder and attempted especially aggravated robbery. See T.C.A. §§ 39-13-202(a)(2) (2014) (felony murder), 39-13-403 (2014) (especially aggravated robbery), 39-12-101 (2014) (criminal attempt). He received concurrent sentences of life for the felony murder conviction and ten years for the attempted especially aggravated robbery conviction. On appeal, he contends that (1) the evidence is insufficient to support the convictions and (2) he was deprived of due process because the State introduced unreliable identification evidence of him as the perpetrator of the offenses. We affirm the first degree felony murder judgment of the trial court. We affirm the attempted especially aggravated robbery conviction but vacate the judgment and remand for entry of a corrected judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Convictions of the Criminal Court Affirmed; Case Remanded for Entry of Corrected Judgment

          Andrew S. Balser (at trial and on appeal), John Allen Brooks (pretrial), and Paul Bergman III (pretrial), Chattanooga, Tennessee; Ardena Garth (pretrial), District Public Defender, and Mary Ann Green (pretrial) Assistant District Public Defender, for the appellant, Ronald Levon Cosper.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; M. Neal Pinkston, District Attorney General; Lance Pope and Cameron Williams, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Alan E. Glenn, J., joined.



         The Defendant's convictions relate to a July 2, 2012 attempted robbery, during which Steve Mosley was fatally shot. At the trial, the Defendant claimed that he was not present when the victim was shot and that no proof existed to show that an attempted robbery occurred.

         Chattanooga Police Officer Thomas Seiter testified that he was dispatched to the scene of a shooting on July 2, 2012, at 3:16 p.m. He said that emergency medical personnel and other police officers were already present when he arrived five to ten minutes later. He identified the scene on an aerial map, which was received as an exhibit. He stated that the map depicted an unpaved "cut-through" trail between two houses.

         Officer Seiter testified that he interviewed Marquita Swanson and Jameka Price at the scene and that they described the person they had seen running from the scene. He said they described a black male, about 5'9", wearing a turquoise shirt, and having a "low-cut haircut." He identified the crime scene log, which was received as an exhibit.

         Marquita Swanson, who lived in the duplex unit next to the one in which the victim lived, testified that the victim had lived in the duplex all his life. She said he was a "[g]reat neighbor, " that he was unemployed, that he "sit [sic] in the house, " smoked marijuana frequently, gambled, played dominoes, and had family gatherings. She said he did not bother his neighbors. She said that he did not have a car and that he walked or rode his bicycle. She said she did not know if the victim sold marijuana regularly but stated that she previously bought a "blunt" for $5 from his "personal stash."

         Ms. Swanson testified that on July 2, 2012, she was home with her infant daughter, two young nieces, and "Mimi." She said she had seen the victim that morning when they were outside smoking. She said that later in the day, she was in her living room and heard loud noises on the walls that sounded like it came from the victim's living room. She had never before heard as much noise come from the victim's unit. She said she went to her porch and noted that no cars or people were in the victim's driveway. She said she looked inside the victim's unit and saw the victim's arm "tussling with" another person. She saw they were tussling with a silver revolver but could not see either person's face. She said the other person's arm was lighter than hers and the victim's but did not know whose arm held the gun. She said she went inside her unit and took the children to the back of the house. She said that as she was about to reenter her unit, she heard about four or five gunshots. She said that after she put the children in the back of her home, she went to her living room and saw the victim, who was holding his chest. She said he moved his hand and showed her a gunshot wound. She did not see blood but saw a hole in his shirt. She said he told her to call his brother, "Red." She said that Mimi had her cell phone at the time and that the victim told her to "go over there and get his phone." She said she told Mimi to go and that while Mimi was gone, the victim took his last breaths, fell to the floor, and cried. She said he continued to ask her to call his brother. She said that when Mimi returned with the victim's cell phone, she called the police. She did not recall whether the police interviewed her at the scene but stated she and Mimi were interviewed at the police station. She identified photograph exhibits of the duplex and her living room and a photograph of the victim in the entryway of her home. Ms. Swanson did not recall talking with the Defendant's mother, Rachel Lee.

         Cheryl Billups testified that the victim had been her boyfriend of five years, that she had lived in the victim's neighborhood for about seven years, and that her family had lived there for about fifteen years. She thought the victim grew up in the neighborhood and said "everybody in the neighborhood loved" him. She said he went to the store for elderly neighbors and played with neighborhood children. She identified a "cut" or trail between North Hawthorne Street and Sheridan Avenue, which was depicted in the aerial map previously received as an exhibit and in two photographs that were received as exhibits.

         Ms. Billups testified that on July 2, 2012, she was outside her daughter's house talking to neighbors when she heard what sounded like fireworks. She said she heard screams, children "hollering, " and people crying, "Help me, help me." She then said she heard one person asking for help and that the voice was female. She saw people running through the trail and a white car pull up. She said a white man and two black men were in the white car. She identified Dustin Hayes as the white man and the driver. She identified Devante Stoudemire as one of the black men and said he sat in the front passenger seat. She said Mr. Stoudemire had light skin and wore his hair in dreadlocks. Regarding the other black man, she said, "[O]ne of the guys was Ronald Cosper as I know of today, " and she stated that he sat in the passenger side backseat. She said that the two black men got out of the car and that Mr. Stoudemire came to talk to her. She said Mr. Stoudemire and her son had gone to school together and had been friends. She said the Defendant got out of the backseat on the passenger side and "went through the trail." She said that Mr. Stoudemire asked about her family members and that as they talked, she watched the Defendant on the trail. She said she continued to hear people yelling. She said Mr. Stoudemire received a telephone call and that she heard him say, "Yeah, man, yeah, you crazy. All right. It's done. . . . Okay." She said that the Defendant walked to the car, that he nodded to Mr. Stoudemire, and that they got into the car and left. She said that as they made a turn from Sheridan Avenue to Wilson Street, she heard the emergency and police vehicles arriving. She thought she had continued to hear the sound that reminded her of fireworks when the Defendant went through the trail. She said Mr. Stoudemire did not go onto the trail.

         Ms. Billups acknowledged that when she talked to defense counsel before the trial, she had not known Mr. Hayes's or the Defendant's names. She said that the Defendant had worn a "turquoise blue" t-shirt with "designs" and black or navy shorts. She said that she had described him previously to defense counsel as being 5'3" to 5'8".

         Ms. Billups testified that although she had never witnessed the victim's selling marijuana, she was aware he did so. She agreed that on the day of the crimes, she did not know the identity of the black man other than Mr. Stoudemire. She agreed that the police never showed her a photograph lineup. She said she found out the Defendant's name through the legal proceedings.

         Michael Mosley, the victim's brother, testified that his nickname was "Red." He said the victim had lived in the duplex since June 1993 and that they had other family in the neighborhood. He said that the unit of the duplex in which the victim lived had been the family home. He said he visited the victim daily and had been at the duplex on July 1, 2012. He said the victim was "mentally retarded, " had attended "Orange Grove, " and had worked at the "Orange Grove crusher" in the early 1990s. Mr. Mosley said the victim had been unable to read and write but could cook. He said that the victim walked or rode a bicycle and that Mr. Mosley or their other brother drove the victim on occasion. Mr. Mosley acknowledged that the victim smoked marijuana daily and that the victim sold and possessed a small amount of marijuana. He said the victim was childlike and enjoyed video games and junk food.

         Mr. Mosley testified that on July 2, 2012, he spoke with the victim around noon. He said the victim was waiting for him to bring a video game after Mr. Mosley finished work that evening. Mr. Mosley said the victim had no enemies and did not do things to "disrespect people or stuff like that."

         Mr. Mosley identified photograph exhibits depicting the interior of the victim's home, which included a photograph of an ashtray, "blunts, " and a "weed shredder." Another photograph depicted damaged sheetrock, which he described as dented, behind the victim's front door. Mr. Mosley said the damage had not existed the last time he was at the victim's house.

         Mr. Mosley said he came to the scene after receiving a telephone call in which the caller informed him that the victim had been shot. He said the victim lay on the floor of the duplex unit next door when he arrived.

         Hamilton County Chief Medical Examiner James Metcalfe, M.D., an expert in forensic pathology, testified that he performed the autopsy of the victim's body. He identified his autopsy report, which was received as an exhibit. He said that the victim's cause of death was gunshot wounds of the chest and abdomen and that the manner of death was homicide. He said the victim weighed 133 pounds and was 70.5" tall. He said the victim sustained three gunshots but had five wounds from the gunshots. He said that in addition, the victim had a wound on the left scalp that appeared to be a blunt force injury, which he said caused the scalp to split. Dr. Metcalfe said the victim also had linear abrasions on the back. He agreed that the victim also had abrasions on the hand, elbow, knee, and other areas.

         Dr. Metcalfe identified photographs of the victim, which were received as exhibits. He agreed that one of the photographs depicted an "apparent muzzle mark" related to a chest wound, which he said was a "loose-contact wound" indicating that the gun's muzzle had been in contact with but "not pressed hard" against the skin. He said he found burns from hot powder or soot around the wound, which confirmed that it was a loose-contact wound. Relative to the chest wound, he said that the bullet penetrated the victim's heart, that the injury would have caused rapid internal bleeding, and that the victim "might be able to do something for a minute or two, a few minutes." In Dr. Metcalfe's opinion, the person holding the gun to the victim when the shot to the chest was fired was "within the person's arm's length." Dr. Metcalfe said the shape of the wound indicated the gunshot could have been fired by a semi-automatic handgun, but he could not state with certainty the type of weapon used to inflict the gunshot wounds.

         Dr. Metcalfe testified that in his opinion, the head wound resulted from the victim's head hitting "something off vertical." He agreed, though, that the wound was also consistent with the victim's falling and striking his head on the floor. He agreed it could have been consistent with the victim's having been struck with the butt of a gun. He said the head wound appeared to be the same age as the gunshot wounds. Dr. Metcalfe agreed that the linear abrasions on the victim's back could have been consistent with the victim's having fallen into drywall.

         Dr. Metcalfe testified that a gunshot wound to the victim's arm included a black, burned area, indicating that the shot had been fired from about one inch from the victim's skin. He said the bullet exited the victim's arm and reentered the body at the chest. He noted a third gunshot wound to the left groin. He said that no black particles or soot existed around the groin wound but that the victim's shirt contained soot and particles that would have been transferred from the third wound if the victim had bent forward. In his opinion, the firearm was one foot or "a little more" from the victim when this gunshot was fired.

         Chattanooga Police Homicide Investigator Matthew Puglise testified that he responded to the scene. He said the victim lived on Side A of a duplex but had gone to Side B to get help after being shot. He said that before he went to the scene, he walked the trail on which Ms. Swanson had seen a suspect flee after the shots were fired. He said he notified the crime scene unit of a beer can on the trail. He identified the trail, which he described as an unpaved "cut-through to Sheridan from North Hawthorne, " in previously received exhibits.

         Investigator Puglise testified that when he entered side A of the duplex, he saw a hole in the wall by the door, which appeared to be recent damage and to be the scene of a scuffle. He said the other areas of the home did not appear to be in disarray. He smelled a "pretty heavy odor of marijuana."

         Investigator Puglise testified that he interviewed Michael Mosley at the scene. Investigator Puglise said Investigator Francis spoke with Ms. Billups, who lived on Sheridan Avenue. Investigator Puglise said that residents of the duplex were taken to the police department for questioning by Investigator Plumlee, which resulted in the police receiving information about a suspect who was a black male with "short low hair" wearing a turquoise sweater or sweatshirt. He noted that the information was consistent with information he had received previously. Investigator Puglise said that Ms. Billups identified Devante Stoudemire, who was also known as "White Chalk, " as a suspect and that she identified a "suspect vehicle."

         Investigator Puglise testified that he and Investigator Montgomery interviewed Mr. Stoudemire, who was located by other officers that evening. He said Mr. Stoudemire was released after giving a statement. Investigator Puglise said Mr. Stoudemire stated that he saw a man run from "the cut" and that the man flagged down and got into a white Buick, in which Mr. Stoudemire saw Dustin Hayes. Investigator Puglise stated that he and Investigator Montgomery used Facebook to identify Mr. Hayes, whom he said was white, skinny, and wore his long hair in a ponytail.

         Investigator Puglise testified that he and Investigator Fuller interviewed Mr. Hayes at the police department on July 2, 2012. He said Mr. Hayes was released after giving a statement.

         Investigator Puglise testified that a fingerprint lifted from the victim's screen door was identified as being the Defendant's. He said that after the Defendant received word on July 3, 2012 that the police wanted to talk to him, the Defendant came voluntarily to the police department, where Investigators Puglise and Fuller interviewed him after the Defendant was advised of and waived his rights. A video recording of the statement and a transcript of the statement were received as exhibits, and the recording was played for the jury.

         In the recorded statement, the Defendant stated that he was eighteen years old and a high school graduate. He said he was not employed. The Defendant said he had been "in trouble for some weed last summer" and that he smoked marijuana "[e]very other day or so."

         Relative to his activities on July 2, 2012, the Defendant stated in the police interview that he had been in Hixson when he received a call from his sister, who told him that someone had "died down the street." He said that he looked at Facebook but could not find any information about the death and that he did not know who died. When told the victim's name, he stated that he did not recognize it. He acknowledged his familiarity with the area around North Hawthorne Street, Sheridan Avenue, and Wilson Street but said he did not remember having ever been at the victim's address. He said he had been out of town until the previous Friday and since that time had been in Hixson.

         He denied being in a white Bonneville, a white sedan, or a white Buick on July 2 and said he had been in a gray Kia that belonged to "C.C.'s sister." He denied that he had driven around with a white, ponytailed male on July 2.

         Describing his activities of July 2, 2012, the Defendant stated in the police interview that he had spent the night at Blake Lee's house but forgot to take his clothes. He said he talked to "family" from Humboldt, went downtown to a restaurant, and returned to Mr. Lee's house. He did not know the time he returned to Mr. Lee's house but said it was daytime and was before a rain storm. He said that they got a ride to Hixson and that he received a call from his sister that something had happened "down here." He said that his sister urged him to be safe and that he decided to stay in Hixson with "Kelsey." The Defendant stated that when he woke on July 3, he had "missed calls and stuff" and later learned that the police had been at his house. He said his mother told him that the police were looking for him. He said that his brother picked him up in Hixson and that he went to the police department.

         In the police interview, the Defendant denied knowing Mr. Stoudemire but said he had seen him "[a] while back on the news." He denied having ever "kicked it" with Mr. Stoudemire. He also denied having ever been a gang member and having ever owned a gun. He said he probably had ammunition in his room but said there "should not be" any there currently. When shown a photograph, he said had not been with the man depicted in the photograph on July 2, 2012.[1] The Defendant thought he had seen the photograph when the person depicted in it "got in trouble or something out in Brainerd or something" and said he had gone to school with the person. He agreed that the person was known as "White Chalk." He denied any memory of a 2007 incident in which the police interviewed him when he was with Mr. Stoudemire.

         The Defendant stated in the police interview that he had handled fireworks at Blake Lee's house on July 2, 2012. He later said he obtained the fireworks from "Kelsey and them" and that he used them in Hixson and Highland Park on July 2. He said Blake Lee's brother, Marcus, lived with Blake Lee.

         When shown a photograph that Investigator Fuller stated depicted Dustin Hayes, whom Investigator Fuller stated was white, the Defendant stated in the police ...

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