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State v. Cunningham

Court of Criminal Appeals of Tennessee, Jackson

August 23, 2017


          Assigned on Briefs February 7, 2017

         Appeal from the Circuit Court for Madison County No. 14-423 Kyle Atkins, Judge

         The Defendant, Jonquarius Cunningham, was convicted of one count of attempted second degree murder, one count of reckless endangerment, two counts of employing a firearm during the attempt to commit a dangerous felony, and two counts of aggravated assault. The trial court sentenced the Defendant to an effective sentence of twenty-three years' incarceration. On appeal, he argues that the evidence is insufficient to sustain his convictions and that the trial court erred by ordering consecutive sentences. Upon review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

          Anna B. Cash, Jackson, Tennessee, for the Defendant-Appellant, Jonquarius Cunningham.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Jerry Woodall, District Attorney General; and Benjamin C. Mayo, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, JJ., joined.



         This case concerns the shooting of the two victims, Gary Patrick and Jerry Massengill, on July 21, 2013. The Defendant, who was sixteen years old at the time of the offenses, was originally charged in the Madison County Juvenile Court with two counts of attempted first degree murder. In November 2013, the juvenile court transferred the Defendant's case to the Madison County Circuit Court.

         On July 28, 2014, the Defendant and his co-defendant, Randy Taylor, Jr., were indicted by a Madison County Grand Jury for two counts of attempted first degree murder, two counts of aggravated assault, and two counts of possession of a firearm during the commission of the attempted first degree murders. As relevant to the issues raised by the Defendant in this appeal, the facts presented at the June 30, 2015, trial were as follows:

         Gary Patrick testified that, on July 21, 2013, he was on Conger Street in Jackson, Tennessee to meet his friend, Jerry Massengill. Patrick saw two classmates from school, the Defendant and Taylor, as he was walking down the street with Massengill. Patrick said that no words were exchanged as he and Massengill passed by the Defendant and Taylor. Patrick testified that "[a] second later [he] heard shots" and he turned around to see both the Defendant and Taylor shooting at him. Patrick also testified that they continued shooting at him as he ran away and after he fell to the ground. Patrick identified the Defendant at trial and in a photographic lineup shortly after the shooting. Patrick was shot thirteen times, including once in the neck, and was paralyzed and confined to a wheelchair as a result of his injuries.

         On cross-examination, Patrick said that he had not talked to either the Defendant or Taylor that morning. Regarding what the shooters were wearing, Patrick could only recall that Taylor was wearing a "fishing hat." Patrick confirmed that he was deposed on November 1, 2013, while he was still in the hospital. He did not recall the answers he gave during the deposition, although he recalled participating in the deposition. Patrick also confirmed that he answered questions that the Defendant asked him on Facebook. Patrick said that he did not remember the Facebook conversation, although he confirmed the messages were sent from his account. Defense counsel read the messages, in which the Defendant asked, "What made you tell them I shot you? What made you think that?" and to which Patrick replied, "Cuz [sic] you're the only one I seen [sic] run up and my big brother said you did."

         On redirect, Patrick confirmed that, at his deposition, he repeatedly said that he saw the Defendant shooting at him. Patrick also said that he only responded to the Defendant's Facebook messages so that the Defendant would leave him alone. On recross examination, Patrick said that he could not describe the Defendant's gun but that he remembered one shooter was wearing a hoodie and one was wearing a fishing hat.

         Jerry Massengill testified that he was Patrick's brother-in-law and that they were friends in July 2013. Massengill confirmed that he was on Conger Street with Patrick around 8:00 a.m. Massengill saw both the Defendant and Taylor on Conger Street, but he did not know them at the time. Massengill said that he and Patrick walked by the Defendant and Taylor and that no one said anything. Massengill then heard shots, turned around to see the Defendant and Taylor shooting at him and Patrick, and ran to the side of a building. Massengill suffered a graze wound to his hand, but was not shot. Massengill testified that Taylor was wearing a fishing hat and the Defendant was wearing a hoodie. Massengill was not able to identify the Defendant in a photographic lineup. Massengill confirmed that he was absolutely positive both Defendant and Taylor had guns and were shooting at them. Massengill identified the Defendant at trial as one of the shooters.

         Investigator Marvin Jerome Rodish, Jr. was employed by the City of Jackson Police Department ("JPD") at the time of the incident. Investigator Rodish located and photographed nineteen shell casings and one bullet at the crime scene; however, due to a sudden rainstorm, he was only able to collect eighteen of the shell casings. Investigator Rodish testified that the majority of the shell casings were found on Conger Street "in a north to south trajectory." He agreed that the location of the shell casings indicated a direction moving towards where Patrick was found lying on the ground.

         JPD Investigator Aubrey Richardson interviewed the Defendant on July 24, 2013. The Defendant's mother was present for the interview, and the Defendant signed a waiver of his Miranda rights. The Defendant provided the following written statement, which was read to the jury:

I was there when Gary Patrick got shot Sunday morning. Me and Rambo, who is Randy Taylor, went to Allenton Heights the night before. Rambo and I were sitting there when Gary Patrick and some other guy walked by. Rambo, who was wearing a safari hat, got up and ran towards Gary and firing [sic] his chrome pistol at Gary. When he was shooting at Gary, Gary fell down and Rambo ran up to him and stood over him and fired his gun some more. We ran off and went back to where we came from. I went back to the house and Randy came in about thirty seconds later. He took the gun apart and eventually got rid of it. It had a long clip. He called someone he knew in a white van who took us to a trailer in the country. I don't know where it was but I don't think it was in Jackson. It may have been in Haywood County or something. We stayed there until Wednesday morning. Rambo told me not to tell on him and not to talk to anyone about this.

         On cross-examination, Investigator Richardson confirmed that the Defendant was brought in by his mother for the interview. The ...

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