Session March 7, 2017
from the Criminal Court for Shelby County No. 14-01725 John
Wheeler Campbell, Judge
a jury trial, Defendant, Courtney Fifer, was convicted of
first degree murder, attempted robbery, and being a felon in
possession of a handgun. He was sentenced to life for first
degree murder, two years for attempted robbery, and one year
for being a felon in possession of a handgun. On appeal,
Defendant argues that his right to a fair trial was violated
because the trial court improperly restricted his closing
argument, and the prosecutor misstated evidence during
closing argument. After a thorough review of the record, we
affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Terrell L. Tooten, Cordova, Tennessee, for the appellant,
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Kirby May, Assistant District
Attorney General, for the appellee, State of Tennessee.
T. Woodall, P.J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert L. Holloway, Jr.,
T. WOODALL, PRESIDING JUDGE
Leverson testified that the victim, Ramon Chism, was her
youngest child, and he lived with her on French Market
Circle. Ms. Leverson testified that she last saw the victim
alive between 9:45 and 10:00 p.m. on September 16, 2013, when
he left her residence to take Anwan Bonds, a childhood
friend, home. Ms. Leverson received a phone call
approximately fifteen minutes later from the victim's
girlfriend. As a result of that call, Ms. Leverson went to
the Regional Medical Center where she identified her son, who
later died as the result of a gunshot wound.
Deangelo Davis of the Memphis Police Department testified
that at approximately 10:17 p.m. on September 16, 2013, he
was dispatched to a gas station located at 4260 Winchester
Road regarding a shooting. He arrived on the scene and
discovered the victim inside of a minivan. Marque Burchette
and Anwan Bonds were also in the van. Officer Davis called
for an ambulance and took information from Mr. Burchette and
Mr. Bonds. Officer Davis learned that the shooting had
occurred in the area of Ashwood Street and the Camelot Manor
Apartments. He also received information from Mr. Bonds
concerning the shooter: "It was 5'5, around 150
pounds, looked to be 22 years of age. Wearing a red shirt,
red hat, armed with a handgun." Mr. Bonds also indicated
that he had "seen the suspect before and could identify
him if he was seen again." Officer Davis relayed the
information to the investigators. The victim was transported
to the Regional Medical Center in critical condition. Mr.
Burchette and Mr. Bonds were placed in separate patrol cars
and taken to the police station for questioning.
Bonds testified that he and the victim spent a portion of the
day on September 16, 2013, at Ms. Leverson's house. He
and the victim left at approximately 8:45 p.m. to go to
Kroger, and they returned to Ms. Leverson's house at
approximately 9:15 p.m. Mr. Bonds testified that he and the
victim were sitting in the victim's minivan in front of
Ms. Leverson's house when the victim received a phone
call. Mr. Bonds testified that he and the victim had planned
to get some chicken before the call, and the victim was going
to drive Mr. Bonds home. Instead, the victim drove him to an
area near the Camelot Manor Apartments on Ashville Street.
Bonds testified that Mr. Burchette walked to the van from a
nearby house. He said that he knew Mr. Burchette because Mr.
Burchette stayed with someone in the same apartment complex
where the mother of one of the victim's children lived.
Mr. Bonds testified that Mr. Burchette told the victim,
"We can't do this right here, " and the victim
told him to get into the van. Mr. Bonds explained that Mr.
Burchette indicated that he wanted to buy a "forty"
of powder cocaine from the victim, but Mr. Burchette was
twenty dollars short. Mr. Burchette said that his brother was
going to bring the additional money. At that point Mr.
Burchette told the victim to "back back." Mr. Bonds
testified: "And if he would have backed back, he would
have been blocked in, so [the victim] just pulled off. And
once he pulled off, he got in front of the apartments and
made a U-turn and came back." Mr. Bonds testified that
the victim parked the van near Ashwood and Ashview Streets to
wait for Mr. Burchette's brother to bring the money.
Bonds could see other people standing around the nearby
houses, and one man, later identified as Defendant, walked up
to the passenger side of the van where Mr. Bonds was sitting.
Mr. Bonds noted that it was approximately 10:00 p.m., and
there was a street light behind the van so he was able to see
outside. The victim asked Mr. Burchette if Defendant was his
brother, and Mr. Burchette did not respond. At that point,
the victim lowered the passenger side window, and Defendant
said, "I want the shit if it's good." The
victim responded, "What are you talking about?" and
Defendant answered, "You know what I'm talking
about. If the shit's good, I want it." Mr. Bonds
noted that Defendant was wearing a red shirt and hat, and he
had a mole or tattoo on the right side of his face. He also
said that Defendant's eyebrows were distinctive. Mr.
Bonds testified that the victim again asked Mr. Burchette if
Defendant was his brother, and Mr. Burchette said, "I
don't know that ni - - - r." Mr. Bonds testified
that at some point Defendant said, "You know what time
this is, " which meant that it was a robbery. Mr. Bonds
told the victim to "pull off." He said that the
victim "reached for the gear and [Defendant] stuck the
gun in [the van] and shot [the victim]." Mr. Bonds
testified that the victim did not immediately realize that he
had been shot, and he drove away from the scene. The victim
discovered that he had been shot and attempted to drive
toward an ambulance that they had passed. He also told Mr.
Bonds to call his (the victim's) fiance´. The
victim then became dizzy and passed out before he got to the
ambulance. Mr. Bonds was able to take control of the van and
drive it to a gas station. Mr. Bonds rendered aid to the
victim while a bystander called 9-1-1. He spoke to the 9-1-1
operator and continued rendering aid to the victim until
police and an ambulance arrived. Mr. Bonds and Mr. Burchette
were immediately placed in separate patrol cars and later
transported to the police station for questioning. Mr. Bonds
testified that he spoke with investigators, and he was shown
a photographic lineup on September 18, 2013. He identified
Defendant as the shooter.
Erica Curry, a medical examiner with the West Tennessee
Regional Forensics Center, performed an autopsy on the victim
on September 17, 2013. She said that the victim died as a
result of multiple gunshot wounds. Dr. Curry testified that
the most significant wound was the gunshot to right side of
the victim's abdomen. The victim also had a gunshot wound
to his right arm. The victim's blood tests indicated that
he had recently used cocaine.
Burchette testified that he knew the victim "[t]hrough
the neighbors upstairs" at the 6111 Apartments. Mr.
Burchette testified that he had known the victim for
approximately four months at the time of the shooting, and
they were friends. In September 2013, Mr. Burchette was
dating Jerricka Fifer who lived in a house on Ashwood Street.
He said that Ms. Fifer is the cousin of Derrick Fifer who was
known to Mr. Burchette as "White Boy." Mr.
Burchette testified that he had known Mr. Fifer since the
eighth grade, and he thought Mr. Fifer to be his distant
cousin. He and Mr. Fifer were "hanging out" and
smoking marijuana with some other men at Ms. Fifer's
house prior to the shooting. Mr. Burchette testified that he
had called the victim several times to ask for a ride home so
that Mr. Burchette could get ready for work. He and Mr. Fifer
also planned to buy 40 dollars worth of cocaine from the
Burchette testified that the victim and Mr. Bonds arrived at
the house in the victim's van "a little bit after
ten o'clock, " and Mr. Burchette got into the back
seat. He said that Mr. Fifer was "nowhere around."
Mr. Burchette called Mr. Fifer and asked if he still planned
to purchase the cocaine. He said that Mr. Fifer indicated
that he was leaving the Camelot Manor Apartments. The victim
turned the van around and drove to the apartments. Mr. Fifer
never came out so the victim pulled back in front of Ms.
Fifer's house. Mr. Burchette testified that he called Mr.
Fifer a second time and "asked him where you at."
Mr. Fifer said that he was on his way; however, Defendant,
whom Mr. Burchette did not know, showed up at the passenger
side of the van. He noted that Defendant had two teardrop
tattoos under his right eye. Mr. Burchette said,
"[Defendant] walked up talking the same thing [Mr.
Fifer] was saying." He testified that Defendant said,
"I want a forty, " which referred to cocaine.
Burchette testified that he told the victim that he did not
know Defendant, and the victim attempted to drive away but
Defendant "was holding his hand in the window and he
shot [the victim]." He said that Defendant fired two
shots. Mr. Burchette testified that the victim lost a lot of
blood and "went out of it." They were able to stop
the van at a gas station on Winchester Road. Mr. Burchette
testified that he was later taken to the police station, and
he told investigators what happened. He admitted that he did
not give them all of the details when he first talked to them
because he was "shooken up" and afraid. Mr.
Burchette spoke with police again the following day, and they
discussed the shooting in more detail. He told them
everything that he could remember about the shooting. Mr.
Burchette told police during the second interview that the
shooter's name was "Boogie." Mr. Burchette
thought that Mr. Fifer set up the robbery attempt and that
"Boogie (Defendant)" and Mr. Fifer had been
together the previous Friday. Mr. Burchette overheard them
say that they "needed a couple of racks [$2, 000]"
and that they were going to "get them by any means
necessary." The conversation took place in Mr.
Fifer's grandmother's yard. Mr. Burchette described
the shooter as wearing a "green short sleeved T-shirt
with a white hat[.]" Mr. Burchette testified that he was
shown a photographic lineup, and he identified Defendant as
the shooter. He told police that he was one-hundred percent
certain of the identification.
Scene Investigator Demario Wells testified that he processed
the scene of the shooting. He collected a "spent nine
millimeter Lugar Winchester casing" from the front seat
of the victim's van. Officer Wells also recovered a small
plastic bag from inside the van that contained a white
powdery substance that tested positive for cocaine. Officer
Wells drove to the Regional Medical Center and collected a
bullet fragment that had been recovered from the victim's
Roosevelt Twilley of the Memphis Police Department, Internet
Crimes Against Children Division, performed a forensic
examination of Mr. Burchette's cell phone. The
"summary report" for Mr. Burchette's phone
established that Mr. Burchette had contacted Derrick Fifer
and the victim numerous times prior to the shooting. In
particular, Sergeant Twilley testified that the report
8:42:47 p.m., Mr. Burchette called Derrick Fifer for
twenty-four seconds. 8:57:43 p.m., Mr. Fifer called Mr.
Burchette for ten seconds. 9:03:31 p.m. called Mr. Burchette
for eight seconds.9:11:14 p.m., Mr. Burchette called [the
victim] for forty-seven seconds. 9:51:12 p.m., Mr. Burchette
called [the victim] for thirty seconds. 10:07:54 p.m., Mr.
Burchette called [the victim] for one minute and four
seconds. 10:10:46 p.m., Mr. Fifer called Mr. Burchette for
twenty-two seconds. 10:12:27 p.m., Mr. Burchette called [the
victim] for eighteen seconds. And at 10:12:27 p.m., Mr.
Burchette called Derrick Fifer for thirty-four seconds.
Timothy Rogers of the Memphis Police Department testified
that he responded to a home burglary call at 3703 Oakleigh
Avenue on March 10, 2013. He said that several firearms were
stolen from the residence including a "Smith and Wesson
model MMP 9, " with a serial number of
James Walton of the Memphis Police Department testified that
he was involved with a traffic stop on April 19, 2014, in the
area of "702 North Forrester." He said that Justin
Reid, Fredericka Hines, and Deandre Bonner were in the car
along with several firearms. One of the firearms recovered
from the car was the Smith and Wesson stolen from the
residence on Oakleigh Avenue.
Agent Eric Warren of the Tennessee Bureau of Investigation
(TBI), Firearms Identification Unit, testified that he
examined the shell casing and bullet fragment recovered in
the present case. He agreed that "firearms don't
typically stay with one person. They can go through a
community and through individuals or through a group[.]"
Special Agent Warren testified that the shell casing
recovered in this case had been fired from the recovered
Smith and Wesson nine millimeter weapon. He said that the
bullet fragment was too damaged to make a precise
determination regarding the specific gun from which it had
been fired, but it showed marks consistent with having been
fired from the same type of gun.
Taylor of the Memphis Police Department testified that in
September 2013 he was working as a sergeant in the homicide
division and was the case coordinator for the victim's
homicide investigation. As part of the investigation, he was
given the address of 3201 Ashwood Street where the Fifer
family resided which included: Defendant, Derrick Fifer,
Tammy Fifer, and Jerricka Fifer. Sergeant Taylor testified
that as a result of his investigation, he developed Defendant
as a suspect in the victim's murder. He also learned that
Defendant's nickname was "Boogie." Sergeant
Taylor noted that Defendant had two teardrop tattoos on his
right cheek that was consistent with descriptions of the
shooting suspect given by Anwan Bonds and Marque Burchette.
He also noted that Derrick Fifer went by the nickname of
Taylor testified that Defendant became a suspect after
Sergeant Taylor re-interviewed Mr. Burchette on September 18,
2013. He said, "[T]hat's when we learned the
nickname Boogie." Mr. Burchette was shown a photographic
line-up, and he identified Defendant as the shooter. Sergeant
Taylor testified that Mr. Bonds also identified Defendant
from a photographic line-up. Thereafter, members of the
"gang unit" were sent out to locate Defendant. They
found Derrick Fifer at the address on Ashwood and asked him
to come to the police station. Mr. Fifer gave consent to have
his cell phone searched, and Sergeant Taylor later obtained a
search warrant for the phone records as well. Sergeant Taylor
found it unusual that all of the text messages on Mr.
Fifer's phone were erased. He obtained a summary of the
phone calls between Derrick Fifer and Mr. Burchette which
were made on September 16, 2013. Sergeant Taylor testified
that Derrick Fifer indicated that Defendant could possibly be
found in Columbus, Mississippi. Sergeant Taylor followed up
on the information and eventually sought a warrant for
Defendant's arrest. Defendant turned himself in on
September 23, 2013, and Sergeant Taylor spoke with him. He
said that Defendant did not have a cell phone, which Sergeant
Taylor thought was unusual.
Fifer, Defendant's and Derrick Fifer's mother,
testified that on July 12, 2013, Defendant moved to Columbus,
Mississippi, and he was still living there on September 16,
2013. Ms. Fifer testified that Defendant's father drove
him back to Tennessee on September 23, 2013. She said that
Defendant had never had a cell phone or a car. Ms. Fifer also
testified that he did not have a nickname of
cross-examination, Ms. Fifer clarified that she also moved to
Columbus, Mississippi on July 12, 2013. She said that prior
to that time she had been living in a hotel, and Defendant
had been living with Ms. Fifer's mother, Vernice
Alexander, at 3201 Ashwood Street. Derrick Fifer also stayed
at the residence sometimes, and his nickname was "White
Boy." Jerricka Fifer, Ms. Fifer's niece, lived next
door to Ms. Alexander. Ms. Tammy Fifer did not recall
speaking to police on September 25, 2013, and telling them
that she had not seen Defendant since July 1, 2013.
Hood testified that Defendant is her "sister's
stepson." She said that Defendant was living at her
sister's house in Columbus, Mississippi on July 12, 2013.
Ms. Hood testified that she usually visited her sister's
house two times a month on the weekends, and Defendant was
there, including times that she visited in September 2013.
She did not recall the dates that she saw Defendant at her
cross-examination, Ms. Hood testified that her sister's
husband, Calvin Gardner, drove from Mississippi to Memphis
every week. She said that he would spend weekends with her
sister in Mississippi. Ms. Hood did not have any personal
knowledge whether Defendant was at her sister's house on
September 16-17, 2013.
Gardner, Defendant's father, testified that on July 12,
2013, he picked Defendant up in Memphis and drove him to
Columbus, Mississippi. He said that Defendant did not return
to Memphis until Mr. Gardner drove him there because police
were looking for him "about this charge here." Mr.
Gardner testified that Defendant did not have a cell phone or
a car, and he did not go by the nickname "Boogie."
Mr. Gardner said that he works in Memphis during the week,
and returns to Mississippi on the weekend. He testified that
Defendant was in Mississippi the weekend before September 16,
cross-examination, Mr. Gardner testified that Defendant had
had the two tear drop tattoos on his cheek for a couple of
years, and they were noticeable. He said that Defendant was
living on Ashwood Street with his grandmother prior to moving
to Mississippi. He did not know who else lived in the house.
Thompson testified that she knew Defendant through his father
and stepmother. She said that she saw Defendant at their
house on Saturday, September 14, 2013. Ms. Thompson testified
that Defendant was always there during other times that she
visited the house.
Crowell testified that Defendant is her son's best
friend. She said that she was living in Columbus, Mississippi
on September 16, 2013, and she saw Defendant at her mailbox
early that morning. Ms. Crowell testified that she also saw
Defendant on September 17, 2013, walking in the neighborhood
with her son. Ms. Crowell noted that her son was not mentally
stable, and he and Defendant were constantly "walking in
that hot sun." She also testified that she was once
married the Defendant's father, Calvin Gardner.
Fifer testified that Defendant is his younger brother. He
said that Defendant never had a nickname of "Boogie,
" and Defendant was living in Columbus, Mississippi in
July of 2013. Mr. Fifer testified that he was at 3203 Ashwood
Street on September 16, 2013, and Defendant was not there. He
said that he last saw Defendant in July 2013. He also said
that Defendant did not have a cell phone or a car. Mr. Fifer
testified that he spoke with police about the victim's
murder, and he gave them permission to search his cell phone.
cross-examination, Mr. Fifer testified that Marque Burchette
is his cousin. He said that he did not know Jerricka Fifer
but he knew Jaleesa Fifer who was also his cousin. Mr. Fifer
testified that Mr. Burchette arrived at the residence on
Ashwood Street at approximately 4:00 p.m. on September 16,
2013. Several other individuals were also at the residence,
including "Ted the Shooter." Mr. Fifer testified
that he and Mr. Burchette planned to buy drugs from the
victim. They were not friends and did not "hang
out" together. Mr. Fifer acknowledged that he had a
teardrop tattoo on his left eye. Mr. Fifer testified that Mr.
Burchette "ordered the drugs" from the victim, and
they went in "half and half" to pay for them.
Fifer testified that although he could not say for certain,
he thought the victim arrived at the residence at
approximately "seven or eight[.]" Mr. Fifer
testified that he, "Hoover, Ted, Rod, and [Mr.
Burchette] had been standing outside when the victim first
arrived. Mr. Fifer said that he gave Mr. Burchette twenty
dollars for the drugs, and he went back inside the house to
use the restroom. He said that Mr. Burchette later called and
asked him for ten more dollars but Mr. Fifer told Mr.
Burchette that he did not have any more money. Mr. Fifer
testified that he heard a gunshot and walked back outside. He
said that the victim's van was gone, and he called Mr.
Burchette who told him that the victim had been shot. Mr.
Fifer testified that he saw "Rod" and
"Ted" run away from the scene after the shooting
and get into a white vehicle. He described "Ted" as
being five feet eight or nine inches, having dreadlocks on
the top of his head, and he had tattoos on his face. Mr.
Fifer acknowledged that the information he provided to police
shortly after the shooting was different. He said that he had
"tried to find out more" about "Ted"
because Mr. Fifer was "really trying to get him."
He told police that "Ted" did not have any tattoos
on his face; however, he later learned that "Ted"
had tattoos on his face. Mr. Fifer could not explain why he
did not notice the tattoos when he was hanging out with
"Ted" in person.
Perry, Defendant's stepsister, testified that Defendant
was at home with her and her mother all day on September 16,
2013, in Columbus, Mississippi. She said that Defendant did
not have a car or a cell phone. Ms. Perry testified that she
woke Defendant up at approximately 6:15 to 6:20 p.m. to ride
with her to play Bingo, and they also picked up Kelvin
Harris. Ms. Perry testified that she drove her mother's
car, and Defendant rode in the passenger seat. They arrived
at the Bingo hall at approximately 7:00 p.m., and Ms. Perry
and Mr. Harris went inside. Defendant left in the car. Ms.
Perry did not know where Defendant went after he left, but
she testified that he was at home when she got back between
9:30 and 10:00 p.m.
Hood, Defendant's step-mother, testified that Defendant
was living with her in Columbus, Mississippi on September 16,
2013. He did not have a car or a cell phone. Ms. Hood
testified that she had taken off from work on September 16,
2013, because her anniversary was the following day. Ms. Hood
testified that Defendant asked her about some money, and she
"told him, no, I'll give it to him tomorrow, and so
he left." She thought that Defendant wanted the money to
buy some gummy bears. Ms. Hood testified that Defendant
visited his friend that day and came home to take a nap. He
later left to take Ms. Hood's daughter to Bingo. She said
that she told Defendant not to be gone long in her car and to
bring it straight back home. Ms. Hood testified that
Defendant again asked her for two dollars, and she told him
that she would give it to him the next day. She said that
Defendant came back home and was asleep by 9:00 p.m.
cross-examination, Ms. Hood acknowledged that Defendant had
two teardrop tattoos around his eye. She thought that he had
gotten them seven years earlier when he had gotten into
trouble. Defendant did not have a job at the time. Ms. Hood
testified that she did not know Derrick Fifer very well.
Harris testified that he knew Defendant through Mr.
Harris' best friend, Tykika Perry. He said that Defendant
accompanied Ms. Perry to pick him up on September 16, 2013,
to play Bingo. Mr. Harris testified that he and Ms. Perry
went inside to play Bingo, and Defendant left.
Israel Taylor was recalled as a witness. He testified that
Derrick Fifer gave him the names of "Ted, "
"Rod, " and "Hoover" along with some
physical descriptions. He did not give any further
information about those individuals. Sergeant Taylor
testified that the physical descriptions of the men were not
consistent with the descriptions given by the victims, Mr.
Burchette and Mr. Bonds, who were present during the
argues that his right to a fair trial was violated because
the trial court improperly restricted his closing argument,
and the prosecutor misstated evidence during closing
argument. We disagree.
argument is "a valuable privilege that should not be
unduly restricted." Terry v. State, 46 S.W.3d
147, 156 (Tenn. 2001); see State v. Bane, 57 S.W.3d
411, 425 (Tenn. 2001); State v. Cauthern, 967 S.W.2d
726, 737 (Tenn. 1998). Both the State and the defense are
afforded wide latitude in arguing their cases to the jury.
State v. Cleveland, 959 S.W.2d 548, 551 (Tenn.1997)
(citing State v. Bigbee, 885 S.W.2d 797, 809
(Tenn.1994)). Closing arguments "have special importance
in the adversarial process, " allowing the parties
"to present their theory of the case and to point out
the strengths and weaknesses in the evidence to the
jury." State v. Banks, 271 S.W.3d 90, 130
(Tenn. 2008). Tennessee Rule of Criminal Procedure 29.1(b)(2)
allows a closing argument to address any evidence introduced
at trial. In addition to addressing the evidence, parties may
also argue "reasonable inferences." State v.
Chico McCracken, No. W2001-03176-CCA-R3-CD, 2003 WL
1618082, at *8 (Tenn. Crim. App., at Jackson, Mar. 24, 2003),
perm. app. denied (Tenn. Sept. 2, 2003). A
party's argument "must be temperate, predicated on
evidence introduced during trial, relevant to the issues
being tried, and not otherwise improper under the facts or
law." State v. Middlebrooks, 995 S.W.2d 550,
568 (Tenn. 1999). A trial court has significant discretion in
controlling closing argument, and its decisions relative to
the contents of argument may only be reversed upon an abuse
of discretion. Terry, 46 S.W.3d at 156; State v.
Trusty, 326 S.W.3d 582, 607 (Tenn. Crim. App. 2010).
Defendant argues that the trial court improperly restricted
his closing argument and "abused its discretion when it
refused to allow defense counsel to state what he believed
the proof showed." During closing ...