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State v. Fleming

Court of Criminal Appeals of Tennessee, Jackson

April 12, 2018

STATE OF TENNESSEE
v.
KENNETH FLEMING

          Assigned on Briefs July 11, 2017

          Appeal from the Criminal Court for Shelby County No. 14-03634 Chris Craft, Judge

         The Defendant, Kenneth Fleming, appeals as of right from his convictions for two counts of aggravated robbery and one count of evading arrest. The Defendant argues that the trial court erred: (1) by giving an improper jury instruction and allowing the case to be presented to the jury when there was insufficient proof to establish venue and jurisdiction; (2) by failing to give a jury instruction on lost or destroyed evidence; (3) by allowing the State to enter a silver handgun and blue toboggan into evidence; (4) by not providing a curative instruction when a witness testified as to other crimes similar to the crime in this case; (5) by allowing the State to make improper comments during closing arguments and by giving an improper curative instruction to the jury; and (6) by sentencing the Defendant partially consecutively. Following our review, the judgments are affirmed.

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

          Terrell L. Tooten, Cordova, Tennessee (on appeal); and James Coleman and Laura Locke, Memphis, Tennessee (at trial), for the appellant, Kenneth Fleming.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Carla Taylor, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         This case arose following the December 26, 2013 robbery of the victims, Brandon Raupp and Joseph Lumley, at the Watkins Express Gas Station in Shelby County. Thereafter, the Shelby County Grand Jury charged the Defendant with two counts of aggravated robbery, one count of possessing a firearm as a convicted felon, and one count of evading arrest. See Tenn. Code Ann. §§ 39-13-402; -16-603; -17-1307. The Defendant proceeded to a jury trial for the two counts of aggravated robbery and one count of evading arrest. At the conclusion of the trial, the Defendant pled guilty to one count of possessing a firearm as a convicted felon. Co-defendant Darryl Gaither was charged similarly and tried jointly with the Defendant. The trial began in the Criminal Court for Shelby County on January 11, 2016.

         Mr. Raupp testified that on December 26, 2013, he and Mr. Lumley were "head[ed] to play disc golf" at Shelby Forest and stopped at the Watkins Express Gas Station. Mr. Raupp testified that he and Mr. Lumley were traveling in Mr. Raupp's Mitsubishi Galant and that Mr. Raupp was driving. Mr. Raupp did not remember the exact time they stopped at the gas station but remembered that "[i]t was daylight." Mr. Raupp explained that when he and Mr. Lumley exited their vehicle, two men approached them and asked if the victims wanted "to buy some weed." Mr. Raupp and Mr. Lumley declined the offer and entered the store. Mr. Raupp explained that he went back outside to make sure his car doors and windows were locked and said that he noticed that the two men "were up on this hill" near the gas station. Mr. Raupp said that the men were "kind of standing there talking with each other and when they s[aw Mr. Raupp, ] they started walking back down" the hill. Mr. Raupp went back inside the store where he and Mr. Lumley purchased drinks and snacks.

         Mr. Raupp identified these two men as the Defendant and his co-defendant. When asked what the two men were wearing on the day of the incident, Mr. Raupp said that one man was wearing a blue toboggan and that the other was wearing a black toboggan. He also said that "one of them was wearing dark jeans and the other one was wearing light jeans."

         Mr. Raupp explained that he and Mr. Lumley left the store and returned to his car. As they neared the car, the Defendant and co-defendant were standing on a corner in close proximity to Mr. Raupp's vehicle. Mr. Raupp testified that as he was unlocking his car door, the Defendant "c[ame] up on [Mr. Raupp] and pull[ed] the pistol out and [told Mr. Raupp] to get in the car." Mr. Raupp said that he sat "down in the car" and that the Defendant was "pointing the gun in [his] face saying to empty [his] pockets." Mr. Raupp explained that he removed a wallet, iPod, and a cell phone from his pockets. He stated that in his wallet, he "had a hundred dollars and a couple of gift cards."

         Mr. Raupp said that the co-defendant went to the passenger side of the car where Mr. Lumley was standing. Mr. Raupp explained that the co-defendant instructed Mr. Lumley to get into the car, but the car doors were locked. Mr. Raupp said that the co-defendant "didn't pull his pistol out" but that he "kept . . . lifting up his shirt and showing it." Mr. Raupp stated that he unlocked the car doors, but Mr. Lumley did not get into the vehicle immediately. He explained that Mr. Lumley "was pretty upset[, ] and he started walking around to the other guy" on Mr. Raupp's side of the car. Mr. Raupp testified that "the guy on [Mr. Raupp's] side started pointing his pistol at" Mr. Lumley. He described the pistol as "silver, like nickel plated." Mr. Raupp did not recall details about the other gun because the co-defendant "wouldn't pull [the gun] out, he just kept showing it, in his waistband."

         Mr. Raupp said that after the Defendant, who was standing on the driver's side of the car, pointed the silver pistol at Mr. Lumley, Mr. Lumley "walked back around to the passenger side of the car." He said that Mr. Lumley pulled out his wallet and a bag of peanuts and threw his peanuts at one of the men. Mr. Raupp testified that one of the men told them that "they were going to burn" them and that he felt threatened by this. He explained, "I thought they were going to shoot us. . . . I was scared." Mr. Raupp said that the Defendant "reached in [the] glove box and pulled out the owner's manual to the car." He said that after that, the Defendant and co-defendant "took off, once they got what they wanted."

         Mr. Raupp testified that the Defendant and co-defendant ran back up the hill. When asked what he did after the men ran away, Mr. Raupp explained "that he was pretty upset" and that Mr. Lumley suggested they drive after the men. Mr. Raupp said that he drove down the street in the direction the Defendant and co-defendant had run and that Mr. Lumley called the police. He stated that the Defendant and co-defendant "noticed us coming and so they pulled their guns out again and pointed them at us[.]" Mr. Raupp explained that he "turned down a side street and when [he] turned back around and came up, [the defendants] were gone." Mr. Raupp said that was approximately the time that he saw the police driving down another street to the left and that he met the police in a parking lot. Mr. Raupp said that he and Mr. Lumley got out of their car and "described to the police what [the Defendant and co-defendant] were wearing and what happened." He said that they were instructed to "follow another police officer back to the gas station to give a statement." Mr. Raupp explained that he and Mr. Lumley returned to the gas station and after arriving, got into the back of the police car to give a statement.

         When asked how he described the incident to the police officers, Mr. Raupp responded, "[T]hey took my [i]Pod, my wallet, my cell phone, they were wearing you know, one had a blue toboggan, and one had a black toboggan, one had a black hoodie, . . . one had light colored jeans, and one had dark colored jeans." Mr. Raupp told the officers that his assailants were two "[b]lack male[s, ]" who were "probably between five ten and six" feet tall and each weighed "about a hundred and fifty pounds." Mr. Raupp explained that he and Mr. Lumley remained in the back of the squad car for approximately five minutes before officers brought two individuals back to the gas station. Officers brought the two men up to the windows of the squad car in which Mr. Raupp and Mr. Lumley were seated, and Mr. Raupp told the officers that they were the men who robbed him.

         When asked how he was certain they were the same individuals, Mr. Raupp replied, "I recognized their face[s]. They had my property in their pocket." Specifically, it was a black iPod with "a couple of cracks in the top right screen and it had a picture of like a smiley face or something when you turned it on." Mr. Raupp said that after he identified the Defendant and co-defendant, he was told to return to the police station where he gave a statement about the robbery. The prosecutor showed Mr. Raupp a silver gun. Mr. Raupp said that the gun looked like the weapon the Defendant used during the robbery, and it was marked as an exhibit for identification purposes only.

         Mr. Lumley gave a similar account at trial as Mr. Raupp. Furthermore, he identified the two defendants as the men who robbed him and Mr. Raupp that day. Mr. Lumley also testified that during the robbery, the Defendant demanded, "[G]ive [him] everything or he was going to burn [them]." Mr. Lumley said that he understood the Defendant to mean "[t]hat he was going to shoot [them] if [they] didn't give him what [they] had." When asked to describe the weapon that the Defendant had, Mr. Lumley responded, "It was a nickel plated .380, maybe a [.40 caliber], it wasn't a .22 or something small. It was a full sized Glock." Additionally, he testified that the co-defendant had a black gun during the robbery. Mr. Lumley testified that the co-defendant was wearing "a black hoodie" and "a blue toboggan, " and that the Defendant was wearing a "black hoodie, a pair of solid black pants and a black toboggan." Mr. Lumley said that the Defendant had a small mustache and that the co-defendant was "younger, possibly [a] teenager."

         Officer Derrick Gary testified that he was employed with the Memphis Police Department (MPD) and that he responded to an incident at the Watkins Express Gas Station on December 26, 2013. He stated that the incident happened at approximately "midday" and that he found the victims at a carwash in a shopping center located near the gas station. Officer Gary said that the victims told him

that they had just stopped at the gas station to buy some things before they went to Shelby Forest to play disc golf and were approached by two then unknown . . . black[] [males] that produced handguns and demanded their property. They gave me a list of items that had been taken from them, their wallets, and an Apple [i]Pod and things of that nature. . . . I put them in the backseat of my car and they gave me a description of the two gentlemen responsible for the robbery.

         Officer Gary testified that as part of his preliminary investigation, he "searched for additional witnesses" and "talked to the store clerk to see if there [was] any video" of the incident. However, the store clerk informed Officer Gary that the store had cameracs but that they were not operational at that time. Officer Gary said that "[o]nce he was given the confirmation that the subjects that were detained were the subjects responsible for the robbery, " a supervisor was called to the scene and "everybody that was involved with the situation was taken to the investigative bureau for further investigation." Officer Gary said that he was with the victims for approximately one hour. Moreover, he stated that everything he testified to at trial occurred in Shelby County.

         On cross-examination, Officer Gary was asked if it would "be a surprise to [him] if the owner of the [Watkins Express Gas Station] said that the cameras were up and had never not been operational." He responded that "it would not necessarily be a surprise to [him]. Those store owners [were] typically not cooperative with law enforcement."

         Officer Langdon Hubbert testified that he was employed with the MPD on December 26, 2013, as a patrolman. Officer Hubbert said that he responded to a call and participated in the investigation involving the robbery at the Watkins Express Gas Station. Officer Hubbert explained that he helped to detain the co-defendant outside a house located near the gas station on "Gilly." Officer Hubbert "placed him into custody and . . . patted him down for any type of weapon." Officer Hubbert found no weapons and placed the man in the back seat of the police car. Officer Hubbert took the co-defendant to the gas station "where he was positively identified by both victims."

         Officer Onrico Atkins testified that he was employed with the MPD and participated in a robbery investigation on December 26, 2013. Officer Atkins explained that he received "a call over the air via dispatch and [he] was one of the responding cars." He said that he arrived at the scene, and the two victims claimed that they had been robbed and "gave a location" for "where they believed the suspects had gone." Officer Atkins "went to the house in question" located on Gilly. Officer Atkins testified that he located the Defendant in a nearby "storage shed that was partially open[.]" Officer Atkins then identified the Defendant as the man he detained on the day of the robbery. The prosecutor showed Officer Atkins an item, and Officer Atkins identified it as the blue skullcap that he took from the Defendant the day of the incident. Counsel for the co-defendant requested a bench conference regarding the blue cap:

[Co-defendant's counsel]: Your honor, before this goes in I think I need to have some . . . clue about the chain of custody and how it gets from Officer Atkins to the present day.
. . . .
[Trial court]: Well, . . . [Officer Atkins] said that's what it was and under [Tennessee Rule of Evidence] 901 it's sufficient if the witness says that's way it is, so he's authenticated it.
. . . .
[Defense counsel]: It's a question of where it's been. Is this just a general blue skullcap and there's no indication of who had custody over time. . . .
[Trial court]: You're welcome to cross[-]examine [Officer Atkins] about it[, ] but he gets to testify under oath that was the cap. Now if you want to tell the jury it's not the cap, it may be someone else's cap and his cap was different, that's fine but there's no question about test results being invalid because it wasn't kept safely. There's no reason for me to have to go through all that. Now if there were fingerprints taken, DNA taken, serology taken, that's different, but he testified it was the cap.

         Following the bench conference, the blue cap was entered into evidence. Officer Atkins testified that the Defendant was patted down for weapons. No weapons were located, but an iPod was found in the Defendant's "front right pants pocket."

         Officer Atkins testified that he "returned the [D]efendant and the [i]Pod back to the scene of the robbery[, ]" and one of the victims identified the iPod "as property taken from him" during the robbery. Officer Atkins stated that he did not remember if the iPod was identified before or after the Defendant was identified. During cross-examination, Officer Atkins said that he believed the iPod was returned to the victim. Officer Atkins testified that the events occurred in Shelby County.

         Lieutenant Matthew Pugh testified that he was employed with the MPD and that he participated in a robbery investigation on December 26, 2013. He testified that he received a broadcast describing the suspects as "two . . . black[] [males] wearing dark clothing. One of them had a black skullcap on and the other one had a blue skullcap on." Lieutenant Pugh said that one of the victims "explained that they had followed the suspects to a house around the corner, so [Lieutenant Pugh] had [the victims] point out that house." He testified that the house was located on Gilly, which was the first street located behind the store. Lieutenant Pugh testified that as he approached the house,

[t]wo . . . black[] [males] ran out the back door and [he] heard them hit the fence and rattle the fence, and [Lieutenant Pugh] was in the driveway right beside the house when that happened and [he] observed them jump the fence and they took off running back westbound in between . . . two houses.

         Lieutenant Pugh said that he got on the police radio and explained where the suspects were located. He stated that "within thirty seconds Officer Hubbert got on the radio and said he had one [of the suspects] in custody" and that "Officer Atkins . . . got on the radio and said he had the other one in custody on the next street over."

         After learning that the two suspects had been detained, Lieutenant Pugh walked through the backyards of the area and "ran across [a] black bag and one of the suspect's skull caps[.]" He said that he found the bag behind a house located "in between the two streets of Corning and off the corner of Gilly[.]" He said that at that point, he joined Officer Hubbert and that he "had the suspects returned to the scene [of the robbery] for identification." When asked if he recalled what was in the black bag, Lieutenant Pugh replied, "[S]ome grayish black gloves and a hangun." Lieutenant Pugh identified a photograph of the house where he located the bag. Additionally, he identified the skullcap and the black bag containing the gloves and handgun, and these items were entered into evidence. Lieutenant Pugh also testified that all of the events occurred in Shelby County.

         On cross-examination, Lieutenant Pugh was asked how he recognized the gun introduced into evidence. Lieutenant Pugh reiterated that "it was the weapon that was pulled out of the bag that day." He further explained that the gun was unique in that it was "chrome" or "nickel plated" and had "black electrical tape around the grip."

         Hussein Mawani testified that he owned the Watkins Express Gas Station on North Watkins. He said that he had owned the gas station since 2003. Mr. Mawani identified a photograph of the inside of the store, which depicted "the register and the camera system[.]" He testifed that the system consisted of sixteen cameras. When asked if the system had ever been out of order or broken, he responded, "Not for too long. Even if it had, we would have repaired it quickly, but nothing [wa]s out of order for too long[.]" Mr. Mawani asserted that there had never been a time when all of the cameras were broken at once. Mr. Mawani also testified that the surveillance video recordings were erased automatically every two weeks. When asked if the police ever requested video footage from the store's camera system regarding incidents in the past, Mr. Mawani said, "[W]e have helped authorities when they needed camera footage for the outside of the store. And we have helped multiple times giving them video footage of outside of the store[.]"

         At the conclusion of the trial, the jury convicted the Defendant of two counts of aggravated robbery and one count of evading arrest. The Defendant subsequently entered a guilty plea for one count of being a convicted felon in possession of a firearm.

         Sentencing ...


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