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State v. Fuller

Court of Criminal Appeals of Tennessee, Nashville

November 1, 2017


          Assigned on Briefs May 10, 2017

         Appeal from the Criminal Court for Davidson County No. 2013-D-3322 Cheryl A. Blackburn, Judge

         A Davidson County Criminal Court Jury convicted the Appellant, D'Maris Laquann Fuller, of aggravated robbery. The trial court sentenced the Appellant as a Range I, standard offender to ten years in the Tennessee Department of Correction. On appeal, the Appellant contends that the trial court erred by refusing to allow him to play a recording of a 911 call, that the evidence was insufficient to sustain his conviction, and that the trial court erred when determining the length of his sentence. Upon review, we affirm the judgment of the trial court.

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

          Manuel B. Russ (on appeal) and Jason Chaffin (at trial), Nashville, Tennessee, for the Appellant, D'Maris LaQuann Fuller.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn Funk, District Attorney General; and Megan King and Leandra Varney, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.



         I. Factual Background

         The Appellant and his co-defendant, Enrique Demontez Newbell, were indicted for the aggravated robbery of the victim, Thomas Lanier. At a joint trial, the victim testified that around 3:00 p.m. on Sunday, August 11, 2013, he was picked up at home by Newbell; Deron Garrett, whose nickname was "Speedy"; and a man he identified only as "Doc." Newbell, who was driving Garrett's red Mustang, took them to Garrett's apartment. Four people were at Garrett's apartment when they arrived. Thereafter, Garrett and his guests smoked marijuana, played basketball, and gambled, and the Appellant, whom the victim knew as "D, " arrived at Garrett's apartment. The victim did not have a relationship with the Appellant or Newbell, but he knew they were friends with Garrett. The victim said that he saw the Appellant with a gun at Garrett's apartment.

         The victim said that he had been working for Federal Express since February 13, 2013, and that he had saved $2, 000 to buy a car. He kept the money with him in twenty-dollar bills "balled . . . with a rubber band wrapped around it." He took the cash to Garrett's apartment because he "was trying to be flashy." The Appellant was at the apartment when the victim got out his money to gamble, but Newbell was not present. The victim recalled that he took out his money three times that weekend and that he talked about having the money with him.

         The victim said that he and the other guests spent the night at Garrett's apartment. The next day, they gambled on dice, video games, and a football game that was on television, then they started to "wrap[] it up" and "get[] back to their daily routine."

         Around 1:00 or 2:00 p.m., the Appellant and Newbell left Garrett's apartment, but Newbell returned sometime later. Thereafter, the victim, Newbell, Garrett, and a man known as "Jonas" or "Big J" got into Garrett's red Mustang. Newbell drove them to get Big J's paycheck, then he left Garrett and Big J at Garrett's mother's house in Highland Ridge. Next, Newbell drove the victim to a Captain D's restaurant to buy food then "dropped [the victim] off" at the end of the victim's street around 7:45 or 8:00 p.m. The victim was not concerned that Newbell had not driven him to his house. The victim had last used marijuana before 3:00 p.m. and did not feel "under the influence" at the time he got out of the car.

         Less than ten seconds after the victim got out of the car, two men jumped from behind some bushes. One of the perpetrators pointed a gun at the victim's face, cocked the gun, and "told [him] to come out with everything." The victim recognized the Appellant's voice. The Appellant threatened to shoot the victim if he did not comply in "a certain amount of time." The Appellant had a black shirt wrapped around the lower part of his face, and he was wearing the same shorts he was wearing earlier that day at Garrett's apartment. The other perpetrator did not have a gun and had "his shirt pulled over his face."

         The victim said that he tried to give the perpetrators only his wallet, which contained approximately forty dollars. The wallet had sentimental value for the victim because it had been "passed down" from his grandfather. After the Appellant grabbed the wallet, he ordered the victim to remove his pants. The victim took off his white shorts and threw them on the ground. The victim's keys, cellular telephone, telephone charger, and bundled cash were in the pockets of his shorts. The victim said that he had spent some of his money but that he had between $1, 800 and $2, 000 in the bundle. While the unarmed perpetrator picked up the victim's shorts, his shirt fell off of his face, but the victim did not recognize him. The perpetrators also took the food the victim had bought at Captain D's. The perpetrators told the victim that he "had a few seconds to get home or whatever or they was [sic] going to shoot." The victim ran home, and the perpetrators ran away from the scene. The victim estimated the robbery lasted forty-five seconds to one minute.

         When the victim arrived home, he "banged on the door, " and his mother let him inside the house. The victim told her that he had been robbed, and she called 911. The victim spoke with the 911 operator, described the robbery, and said that the perpetrators were two black men. The victim said that he "wasn't talking clear" during the call because he was "really upset."

         After the police arrived at the victim's home, they asked for details about the robbery. The victim responded that the perpetrators had taken his clothes. The police asked the victim to describe the clothes, and the victim said that he was wearing white shorts. The victim said that when he mentioned the white shorts, "it was like something triggered and [the police] just ran out of [his] house." The victim estimated that the police were at his house for five minutes.

         The victim said that "at some point, " the police returned to his house. The officers informed him that they had found his shorts and wanted him to go with them to see if he could identify the perpetrators. Around 8:45 p.m., the officers took the victim to "Doverside by Walmart." The officers got three suspects out of separate patrol cars "one by one, " and the victim identified them as the perpetrators. One of the perpetrators was the Appellant, who was wearing the same clothes he had on at Garrett's house. The victim said that he was positive of his identification of the Appellant. The victim also identified Newbell as the man who drove him home immediately before the robbery, and Dezzion Pickett as the unarmed perpetrator who retrieved the victim's shorts from the ground. The victim said that the police returned all of the stolen items except his money.

         On cross-examination, the victim said that Newbell did not gamble with the other men at Garrett's apartment; he merely was "hanging out." The victim said that he purchased marijuana from Newbell and Garrett but that he "didn't really have anything to do with" Newbell.

         The victim said that he did not recognize the Appellant until he heard the Appellant's voice and saw his clothes. The victim had never seen the unarmed perpetrator, Pickett, prior to the robbery.

         The victim said that he was "close friends" with Big J, "Big Al, " and Doc, who were at Garrett's apartment on Sunday night. The victim recalled that all of the guests spent Sunday night at Garrett's apartment. Most of the guests stayed up late; the victim went to sleep around 1:00 or 1:30 a.m. The victim did not know the Appellant and did not talk much with him. On Monday, the Appellant left Garrett's apartment with Newbell two or three hours before the victim left. The victim acknowledged that he smoked marijuana but denied using "Xanax bars."

         The victim said that he was positive of his identification of the Appellant at the time of trial but acknowledged that he did not identify the Appellant during the 911 call because he was not "sure who robbed [him] at first." The victim conceded that he did not "get a good look" at the Appellant's gun during the robbery and that he was not "paying attention and looking at faces" while he was "having to take [his] clothes off." The victim said that he told the 911 operator that both perpetrators were young black men wearing black shirts and shorts. The main difference between the perpetrators was that one had long hair in dreadlocks and that the other had shorter hair.

         The victim said that when the police got the perpetrators out of the patrol cars, he realized that the Appellant was one of the people he had been with at the apartment. The victim noted that the Appellant did not have a shirt covering his face when he got out of the police car.

         The victim said that at the time of the robbery, he was earning an average of $280 per week, which was about $1, 000 per month. The victim did not have a bank account, and he cashed his checks at Walmart. The victim said that he was carrying a "huge wad" of twenty-dollar bills, which was "all the money to [his] name."

         On redirect examination, the victim reiterated that he recognized the Appellant's voice during the robbery but that "[i]t took a moment for it to sink in[.]" He said ...

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