Court of Criminal Appeals of Tennessee, Knoxville
Session September 20, 2016
from the Criminal Court for Hamilton County No. 285969 Barry
A. Steelman, Judge No. E2016-00212-CCA-R3-CD
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.
R. App. P. 3 Appeal as of Right; Convictions of the Criminal
Court Affirmed; Case Remanded for Entry of Corrected
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
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J., and Alan E. Glenn, J.,
H. MONTGOMERY, JR., JUDGE.
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.
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
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.
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."
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.
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.
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.
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
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
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.
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
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.
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.
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.
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.
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.
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
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.
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."
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."
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.
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.
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
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."
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.
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.
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.
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. 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.
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.
shown a photograph that Investigator Fuller stated depicted
Dustin Hayes, whom Investigator Fuller stated was white, the
Defendant stated in the police ...