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State v. Hopkins

Court of Criminal Appeals of Tennessee, Knoxville

September 22, 2017


          Assigned on Briefs June 27, 2017

         Appeal from the Criminal Court for Knox County No. 101102 Steven W. Sword, Judge.

         The Defendant-Appellant, David Hopkins, appeals his conviction for first degree felony murder, arguing that the evidence is insufficient to sustain his conviction and that the trial court abused its discretion in ordering consecutive sentencing. We affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, David Hopkins.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Charme P. Allen, District Attorney General; and Philip H. Morton and Steven C. Garrett, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Camille R. MCMULLEN, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.



         The Knox County Grand Jury charged Hopkins with one count of first degree felony murder and two counts of especially aggravated robbery. Prior to trial, the especially aggravated robbery counts were dismissed on the ground that they were barred by the statute of limitations. A jury trial on the first degree felony murder charge took place in June 2014.

         The State's evidence at trial established that Tony Barrett, the victim, lived two houses down from Hopkins' mother in Knoxville and regularly sold marijuana from his home. Prior to the July 11, 1994 incident, Hopkins had stolen drugs from the victim on several occasions. At some point, the victim had shown Hopkins a produce truck full of marijuana and had said that because Hopkins "was a liar and a piece of this, that . . . he couldn't have no part of none of this." At the time of the victim's death, Hopkins was aware that the victim was having a sexual relationship with Hopkins' estranged wife, Kimberly Sutton.[1]

         Kimberly Sutton stated that on July 11, 1994, Hopkins and his friend, David Riggs, appeared at the victim's house, where she was helping the victim "bag[] up some weed." When Sutton and the victim observed Hopkins and Riggs approaching the house, they put the marijuana away. Sutton then went into the back bedroom to keep Hopkins and the victim from fighting and did not hear much noise coming from the front of the house for a long period of time. When she finally exited the bedroom, Sutton saw Hopkins holding a baseball bat and standing over the victim's body. She also saw Riggs standing beside Hopkins. Sutton said Hopkins, who claimed he would never hurt her, told her, "You won't say nothing." Then Hopkins and Riggs searched the victim's house, finding money and approximately ten pounds of marijuana. Sutton said Riggs took the marijuana, but she "didn't see who had the money." When questioned further on this issue, Sutton stated, "I can't say [Hopkins] had the money. I don't know." Sutton placed a cloth over the victim's face before leaving the home with Hopkins and Riggs.

         On the evening of July 11, 1994, the victim's sister, Sherry Shoopman, and her husband arrived at the victim's home and discovered the victim's dead body. Shoopman stated that the victim, at the time of his death, had approximately $1000 in cash in his home because he had just been paid. After finding the body, Shoopman called 9-1-1, and Detective Ed Stair with the Knoxville Police Department responded to the scene.

         Upon his arrival, Detective Stair observed that the victim, whose face was covered with a cloth napkin, was lying on his back in a pool of blood in the dining room with his shorts pulled down to his knees. One of the victim's pockets had been pulled out as if someone were looking for something, and there was blood spatter from the floor to the wall, which suggested that the perpetrator had hit the victim as the victim was lying on the floor.

         Detective Stair also noted that the victim's home had been ransacked. He said ceiling tiles had been pushed up and drawers in the kitchen and bedroom had been opened, which indicated that the perpetrator had been "looking for something." Detective Stair also found a metal baseball bat covered in blood lying under a pile of clothes in the bedroom and determined that this bat was the murder weapon. The coroner and Detective Stair removed the cloth napkin from the victim's face and saw that the victim, who had a sock gag in his mouth, had received several blows to back of the head.

         Upon examination, Detective Stair discovered a small amount of marijuana and drug paraphernalia in the victim's home. He later learned that the victim, just prior to his death, had possessed a substantial amount of marijuana and approximately $1500 in cash. Based on this evidence, Detective Stair surmised that the perpetrator's motive in committing the offense was to obtain the victim's money and drugs.

         Detective Stair said that he interviewed twelve to fifteen individuals during his investigation into the victim's death, including Hopkins' wife, Kimberly Sutton. However, when Sutton recanted her statement implicating Hopkins in the victim's killing, the district attorney's office dismissed Hopkins' arrest warrant for murder, and the case was considered an unsolved or "cold" case. Detective Stair said he did not recall discussing the nature of the victim's injuries with anyone he interviewed in the case. He asserted that the details regarding the cloth over the victim's face, the gag in the victim's mouth, the number of wounds, and the murder weapon were never released to the media.

         Dr. Darinka Miluesnic-Polchan, the Chief Medical Examiner for Knox and Anderson Counties, reviewed the victim's autopsy and determined that the victim's airway had been blocked with a sock gag and that the victim had sustained four blows to the back of his head with a blunt object. These four blows fractured the victim's skull, which caused his brain to tear. Dr. Miluesnic-Polchan noted that bruising on the side of the victim's head indicated that he had been lying against a hard surface, most likely face down on the floor, when he received these blows. She also observed that the victim had suffered blow-out fractures to the orbital area of his face, which caused his eyes to bulge from their sockets. Dr. Miluesnic-Polchan opined that the blows sustained by the victim did not result in his immediate death; instead, she believed that the victim died when his brain swelled from these blows and blood collected in his airway. She added that during the time it took the victim to die, he was probably gasping for air.

         Following the victim's killing, Sutton was interviewed by the police on multiple occasions, and her version of the events changed several times. In January 1995, Sutton implicated Hopkins in the victim's death. However, she later recanted her statement at Hopkins' insistence, and the victim's killing remained unsolved. Sutton said that after she was charged with an unrelated murder in Kentucky, she told Detective Day the truth about Hopkins being responsible for the victim's death. She said she finally told the truth about the victim's death because her situation "couldn't get no worse[, ]" given that she was charged with first degree murder in the unrelated Kentucky case and was "already looking at life in the penitentiary." She said she also told the truth because "the [victim's] family needed to rest." Sutton acknowledged that after disclosing what she knew about the victim's case to Detective Day, she entered a guilty plea to facilitation of murder in the Kentucky case. Sutton admitted that she had prior convictions for custodial interference, theft, and forgery, and was currently serving a sentence for her Kentucky conviction for facilitation of murder. When asked about the day of the victim's death, Sutton denied taking a car ride with Hopkins, Andy Bailey, or Misty Humphrey.

         Barry Roark, a federal inmate in Illinois, stated that he was Hopkins' cellmate at the Blount County Jail from May 2011 to July 2011. Roark said Hopkins shared so many details with him about the victim's killing that he began keeping a journal to document them. Roark said Hopkins admitted to stealing some items from a neighbor's home the morning of the victim's death. Hopkins said he then went to the victim's home with David Riggs "to get weed, " and when they arrived, Riggs put a gun to the victim's head and Kimberly Sutton began screaming. Hopkins said he did not want to use a gun to kill the victim because he believed the police might still be investigating the robbery of the neighbor's home, which was down the street. Instead, Hopkins chose to kill the victim with a baseball bat the victim kept behind his front door. Roark said Hopkins claimed that he hit the victim "so hard in the back of the head that it knocked his eyes out" and that he put a dirty rag over the ...

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