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State v. Orozco

Court of Criminal Appeals of Tennessee, Nashville

May 24, 2018

STATE OF TENNESSEE
v.
LARRY E. OROZCO

          Session December 12, 2017

          Appeal from the Circuit Court for Rutherford County No. F-72737B Paul G. Summers, Senior Judge

         The Defendant, Larry E. Orozco, was convicted of two counts of attempted second degree murder, two counts of unlawful employment of a firearm during an attempt to commit a dangerous felony, and seven counts of reckless endangerment committed with a deadly weapon. The trial court sentenced him as a Range I, standard offender to an effective term of thirty-one years' imprisonment. On appeal, the Defendant argues that (1) the trial court erred in admitting certain evidence in violation of Tennessee Rules of Evidence 403 and 404(b); (2) the evidence was insufficient to sustain his convictions; and (3) his sentence was erroneous and excessive. After a thorough review of the record and briefs, we affirm the judgments of the trial court.

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

          W. Scott Kimberly, Murfreesboro, Tennessee, for the Defendant-Appellant, Larry Estrella Orozco.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; Jennings H. Jones, District Attorney General; and John Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Timothy L. Easter, J., joined. Norma McGee Ogle, J., filed a concurring in part and dissenting in part opinion.

          OPINION

          CAMILLE R. McMULLEN, JUDGE

         On September 6, 2014, as the Chavez family held a family party in their backyard, the Defendant and his accomplice walked up and threatened to rob Rene Chavez, Sr. When Mr. Chavez, Sr. saw the Defendant reaching for a gun, he attempted to defend himself by punching the Defendant. The Defendant and his accomplice began shooting at the party attendees, severely wounding Mr. Chavez, Sr. and his son. The Defendant and his accomplice then fled to the apartments across the street until the police extricated the Defendant and recovered the two guns used in the shooting shortly after. That same evening, three eyewitnesses from the party positively identified the Defendant as one of the shooters. The Defendant and his co-defendant, Aaron Jamar McKee, were subsequently indicted for two counts of attempted first degree murder, two counts of employing a firearm during the commission of a dangerous felony, and fifteen counts of reckless endangerment.[1]

         Trial. Rene Chavez, Sr., eyewitness and named victim in counts 2 and 4, testified that, on the night of September 6, 2014, he was hosting a family party at his home on Rock Springs Road when the Defendant and his accomplice approached the party. He described the Defendant as wearing jeans, a light blue shirt, white sneakers, and a black cap with "SWAT" written on it. He said that the Defendant tried to rob him and reached for what looked like the butt of a gun under his t-shirt. At that moment, Chavez, Sr. punched the Defendant in the face, and the Defendant fell to the ground. After Chavez, Sr. turned around, he felt a gunshot in his back, which he believed came from the Defendant's accomplice because the Defendant was still on the ground. He said the accomplice also shot his son three times. He said when the Defendant got up, he and his accomplice ran towards the street, and Chavez, Sr. heard "[s]ix, seven, perhaps ten gunshots more." He observed the Defendant and his accomplice run towards Colony Square Apartments across the street from his home. He identified exhibit 1 as the photographic lineup in which he identified the Defendant as the man who tried to rob him the night of the shooting. He identified exhibit 2 as an aerial view of his home and pointed to where he was standing when confronted by the Defendant and his accomplice. On cross-examination, Chavez, Sr. confirmed that he did not see the Defendant shoot his gun at anyone, but he heard gunshots after the Defendant got up and started running.

         Rene Chavez, Jr., eyewitness and named victim in counts 1 and 3, testified that he was standing with Cedric Maldonado, Roberto Aguilar, the named minor victim in count 11, and others when he saw two strangers approach his father, Rene Chavez, Sr. He described the Defendant as wearing a light blue sweatshirt and a dark colored cap. When he and Maldonado walked over to Chavez, Sr., he testified that he saw the Defendant lift his shirt and reach for something and then saw his father punch the Defendant. At that moment, the accomplice pulled out his gun and shot Chavez, Jr. in the knee. As he dragged himself to the grass, he heard more gunshots, turned around, and saw the Defendant standing up and shooting at him and Maldonado. Chavez, Jr. testified that he was shot a total of three times: in the knee, legs, and back, and that he believed the final shot that hit him was fired by the Defendant. He identified exhibit 3 as the photographic lineup in which he identified the Defendant as one of the men who shot him.

         On cross-examination, Chavez, Jr. confirmed that he had previously testified about the shooting in a preliminary hearing and stated that he did not remember anything after being shot and only heard gunshots. At trial, Chavez, Jr. clarified that his answer differed because he was scared. On redirect, Chavez Jr. confirmed that his testimony at trial was the truth.

         Misty Lowe testified, over the Defendant's objection, that she was standing outside her apartment at Colony Square Apartments, Building E, when she heard gunshots coming from across the street, Rock Springs Road. She took her children inside and when she came back outside, she saw the Defendant and his accomplice running towards her from the same direction as the gunshots. As the Defendant approached her, she saw a gun in his waistband which he removed and pushed against her stomach. The Defendant's accomplice intervened and both men ran to an upstairs apartment in the building. Lowe identified exhibit 4 as a photograph of her apartment building and indicated with an "L" where she was standing when the Defendant approached her.

         Cedric Maldonado, eyewitness and father of the named minor victim in count 5, testified that he was standing with Chavez, Jr. and several of the minor victims when they saw two strangers approach Chavez, Sr. He described the Defendant as wearing a light blue t-shirt, a black cap, and white sneakers. As he and Chavez, Jr. approached the three men, he saw the Defendant fall to the ground when his accomplice pulled out a gun and started shooting at Chavez, Sr. and Chavez, Jr. After Chavez, Jr. was shot the first time, Maldonado jumped to the grass with him to try to protect them. When he looked up, he saw the Defendant shooting at him and Chavez, Jr. He then saw the Defendant and his accomplice run towards Colony Square Apartments across the street and indicated the specific direction on exhibit 2. Maldonado testified that there were several children at the party, playing in the backyard, and with their parents in the cars getting ready to leave. After the shooting, he said he noticed several bullet holes in those cars, including a bullet hole "about [five] or [six] inches above" where one of the minor victims was seated. Later that evening, he participated in a show up during which he identified the Defendant as the man who shot at him and Chavez, Jr. He then identified exhibit 5 as the photographic lineup in which he identified the Defendant as the shooter.

         On cross-examination, Maldonado testified that he is still friends with Chavez, Jr., but that they had not discussed their testimony or the shooting since that night. He clarified that the Defendant stood up after he fell down and started "shooting at [him and Chavez, Jr.] with that gun trying to kill" them "more than three or four times."

         Karin Orizabal testified that she was Cedric Maldonado's wife and the mother of the named minor victim in count 5. She was placing her child in the car and preparing to leave the party, when she noticed two strangers walking up the driveway. She saw Chavez, Sr. speaking with the two men and saw her husband and Chavez, Jr. walk up to them. All of a sudden, she heard gunshots and then grabbed her daughter to protect her. She saw the Defendant "shooting as if he were shooting up in the air" and that both the Defendant and his accomplice were "just shooting and shooting away."

         On cross-examination, Orizabal clarified that she jumped into the car to protect her child and watched the rest of the shooting through her car window. She and her husband have remained friends with Chavez, Jr. since that night. She confirmed that, since that night, she had discussed the shooting with her husband and Chavez, Jr., and that she had seen her husband and Chavez, Jr. discuss the shooting together.

         Sergeant Patrick Mangrum of the Smyrna Police Department testified that he responded to the shooting on Rock Springs Road on September 6, 2014. He learned that the shooters fled on foot into the Colony Square Apartments across the street. He called Officer Jacobs to process the crime scene and Detective Monroe to lead the investigation. He also called the tactical team to Colony Square Apartments where the shooters were ultimately found.

         Herod Castro, eyewitness and father of the named minor victim in count 6, testified that he saw two strangers approach the party and saw the Defendant speaking to Chavez, Sr. He described the Defendant as wearing jeans, a light blue t-shirt, a cap, and white shoes. He saw the Defendant fall down and then his accomplice pulled out his gun and started shooting at Chavez, Sr. He then saw the Defendant stand up, pull out his gun, and shoot "more than two or three shots" at Chavez, Jr. and Maldonado. He said the Defendant and his accomplice started to run away towards the apartments, but then they "started shooting towards all of us, " including the children. Later that evening, he participated in a show up during which he identified the Defendant as the man who shot at Chavez, Jr. and noted that the Defendant was wearing different clothing than at the shooting. He identified exhibit 6 as the photographic lineup in which he identified the Defendant as the shooter.

         On cross-examination, Castro clarified that when the shooting started, he ran towards his wife and daughter, made sure they were safe in the house, and then came back to the yard where he "saw them firing towards the cars and the children." He affirmed that he gave a written statement the night of the shooting that did not mention the Defendant, but clarified that he was very nervous and was not "in a very good state of mind to be making statements[.]" He testified that he was telling the truth. He also confirmed that he was still friends with Chavez, Jr. and Maldonado, but stated that they only discussed the shooting "with the authorities."

         Denise Cordova, mother of the named minor victims in counts 9 and 10, testified that she was in her car with her kids preparing to leave when she saw two strangers walk past her and towards Chavez, Sr. She then heard gunshots, grabbed her children, and laid on the floor of the car. She said she heard an "explosion" when one of the gunshots shattered her window and that another shot hit approximately five inches above her daughter's head. On cross-examination, Cordova confirmed that she did not witness the actual shooting because she kept her head down the whole time.

         Roberto Aguilar, eyewitness and father and uncle to the named minor victims in counts 7 and 8, respectively, testified that he was talking to Chavez, Sr. when two strangers walked up to them. He described the Defendant as wearing a light blue shirt, blue jeans, white shoes, and a black cap with letters "like swap or swat[.]" He saw Chavez, Sr. walk the Defendant and his accomplice off the property while he stayed back with his sister, wife, and children. He then heard gunshots, tried to find cover behind the grill, and lifted his head to see the shooting. He testified that he saw the Defendant "shooting at all of the cars and all of the people[, ]" including the car in which his mother was sitting. He then saw the two men run across the street toward Colony Square Apartments. Later that night, he participated in a show up during which he identified the Defendant as the shooter, noting that he was wearing different clothing from ...


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