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State v. Toles

Court of Criminal Appeals of Tennessee, Jackson

May 17, 2019


         Assigned on Briefs April 2, 2019

          Appeal from the Criminal Court for Shelby County No. 16-03687 Lee V. Coffee, Judge

         Defendant, Telvin Toles, was convicted by a Shelby County jury of one count of felony murder. On appeal, Defendant argues that the trial court erred by refusing to instruct the jury on self-defense and voluntary manslaughter; that the evidence is insufficient to support his conviction; that the trial court abused its discretion in ruling on the admissibility of certain photographs; that the trial court erred by allowing additional security officers to sit behind Defendant throughout the trial; that the trial court erred in overruling Defendant's objections to certain questions asked by the State; and that the trial court erred in allowing expert testimony when the full ballistics report had not been produced during discovery. Upon our review, we affirm the judgment of the trial court.

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

          Josie S. Holland (on appeal); Jason Ballenger and Benjamin Israel (at trial), Memphis, Tennessee, for the appellant, Telvin Toles.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; Chris Lareau and Carla Taylor, Assistant District Attorney Generals, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which John Everett Williams, P.J., and Alan E. Glenn, J., joined.



         Factual and Procedural Background

         On June 9, 2016, Defendant was indicted for one count of first degree felony murder and two counts of aggravated robbery. The murder charge was severed from the robbery charges and tried before a sequestered jury in April 2018.[1]

         At trial, Tracy Simpson testified that the victim, Charles Davis, was 63 years old in December 2015. Though her mother and the victim were not legally married, Ms. Simpson considered the victim to be her stepfather because he had been with her mother for over 25 years. Ms. Simpson described the victim as "[v]ery calm, very patient, loving. Would do anything for anybody[.]" Ms. Simpson did not know the victim to be violent, to carry a gun, or to use drugs. Ms. Simpson stated that the victim was not the kind of person who would flag down a random car of people he did not know.

         Juilie Juarez testified that on the afternoon of December 1, 2015, she was at home in her living room. She was watching television and using her cell phone when she heard a gunshot. She got up, looked out the front window, and saw three men fighting. Two men appeared to be holding down the third man and were beating him. One of the men was thin and was wearing a striped jacket. The other was "big, buff" and was wearing a black jacket. The victim appeared to be blocking blows from the assailants but was not hitting back. Ms. Juarez stated that one of the men stepped back and shot the victim three times. The two men then quickly got into a white Maxima and fled, leaving the victim on the ground. Ms. Juarez got her father's attention and called 911. Ms. Juarez testified that she recognized the victim from the neighborhood and that her father referred to him as a friend. Ms. Juarez had never seen the victim be mean or violent towards anyone. Ms. Juarez did not recall seeing the victim with a gun and testified that the shooter still had the gun when he got into the car. On cross-examination, Ms. Juarez agreed that she did not see the beginning of the fight, did not know who started it, and did not see who fired the first shot that initially got her attention. Ms. Juarez testified that she did not see either men take anything from the victim.

         Pedro Juarez, Ms. Juarez's father, testified through an interpreter that he was at home on December 1, 2015. He was sitting at a table using his phone when he heard the first gunshot. His daughter went to the window and told him that people were fighting outside. Mr. Juarez ran to the window and saw three people fighting. The victim was on the ground. One of the men had a weapon, and he got up and shot the victim while the other man was holding the victim from behind. Mr. Juarez testified that the shooter then searched the victim's pockets before both assailants ran to the car and drove off. Mr. Juarez went outside to see if he could help the victim, but the victim could not talk. Mr. Juarez knew the victim because he used to walk around the neighborhood every day. Mr. Juarez testified that the victim was friendly and that they often talked to each other, even though there was a language barrier. Mr. Juarez testified that he had never seen the victim be violent or carry a gun. On cross-examination, Mr. Juarez reiterated that one of the men shot the victim and then searched his pockets, though he agreed that he could not see if the man actually took anything. Mr. Juarez also agreed that he did not see the fight start or who started it, and he did not know to whom the gun belonged. Mr. Juarez admitted that he had been convicted of aggravated assault in 2015.

         Officer Namika Johnson of the Memphis Police Department responded to a shots fired call and arrived on the scene around 4:25 p.m. She observed the victim lying face down on top of a storm drain. She rolled him over onto his back. Blood was coming from his mouth, but Officer Johnson could not see any gunshot wounds. The victim did not have a pulse, so Officer Johnson began performing CPR.

         Sergeant Christopher Slaughter processed the scene after the victim had been taken to the hospital. He did not find any bullets or shell casings at the scene. A hat and an empty bottle were found on the ground near the storm drain, but Sergeant Slaughter did not remove the grate over the storm drain to search for more evidence. Sergeant Slaughter received from another officer the victim's personal property, which included the victim's wallet with his identification and social security card, a cross pendant, a lottery ticket, $12.74 in cash and coins, a cell phone, and a lanyard with two pocket knives.

         Dr. Paul Benson, a forensic pathologist with the West Tennessee Regional Forensic Center, performed the autopsy of the victim. Dr. Benson testified that the victim's cause of death was multiple gunshot wounds. One gunshot wound entered the victim's right armpit, perforated his lung, injured his jugular vein and carotid artery, and fractured his ribs. The bullet did not exit and was able to be recovered from the victim's left shoulder. This wound was fatal. The victim had another gunshot entrance wound to his left buttock. The bullet hit his bladder and small intestine before exiting his right front pelvis. The victim had a third gunshot wound to his left thigh. The bullet penetrated less than an inch but was lost before the autopsy. Dr. Benson explained, "It may have fallen out if there was manipulation of the clothing somewhere between where the shooting occurred and the Medical Examiner's office." As to the depth of the wound, Dr. Benson explained that it "probably could be a ricochet from something, or it could have hit something else first before it hit the thigh. It only went in a very superficial amount[.]" The victim also had blunt force injuries to his head, knees, and hands. A toxicology report showed that the victim did not have drugs or alcohol in his system.

         Kimyata McWilliams testified that Defendant rented a room from her for five or six months in 2015. Defendant drove a white Maxima. On December 1, 2015, Defendant came by the house a couple of times. The second occasion, sometime after the murder, Ms. McWilliams noticed that someone else was driving Defendant's car. Defendant got out of the car, went across the street to the back of his mother's house, came back around to the front, handed something to a person in a red pickup truck, and then the person driving Defendant's car came back and picked him up. Ms. McWilliams knew the driver of the car as "P" and was able to identify him in a photographic lineup as Richard Leach, the indicted codefendant. Ms. McWilliams also identified Leach in a photograph from Facebook of "Telvin and his friend."

         Defendant did not come back to Ms. McWilliams's house after December 1, but he called a couple of times about getting his child's coat that he had left after Ms. McWilliams had put him out of the house. After he did not show up, Defendant called and "said he had gotten into something, and couldn't come around there because he was hiding[.]" Defendant did not tell Ms. McWilliams what he had gotten into at first. Ms. McWilliams testified that Defendant later told her that someone had tried to rob him. Ms. McWilliams testified that she gave a statement to police on December 4, 2015, and that she "[b]asically" told the police the following:

He called me, and he was telling me that he couldn't come to the house because he was hiding from police. He got into it with the old man. The old man tried to rob him. It was self-defense. And he had to get the old man - - I don't know. I know it was about some weed.

         The State presented Ms. McWilliams her statement to refresh her recollection. Ms. McWilliams then testified that Defendant "said he f***ed up. The old man tried to rob him, so he had to get him." She then agreed that she told police that Defendant said, "I f***ed up. I tried to rob the old man in the neighborhood behind us." Ms. McWilliams explained, "Telvin told me that the old man tried to rob him, but I know the old man wasn't trying to rob him for no weed," so she "told the police that Telvin robbed the old man." When the police presented Ms. McWilliams with a photographic lineup, she wrote the following under Defendant's picture:

This is Telvin Toles. He told me that he couldn't come get his child's coat because he was hiding out, staying away from the house. Police was looking for him and his car. That he f[***]ed up. And I said, "Why?" He said he got the old man by our neighborhood.

         Ms. McWilliams clarified that she told the police both that Defendant stated he tried to rob the old man and that Defendant stated the old man tried to rob him. Ms. McWilliams believed that Defendant was the one who tried to rob the old man.

         On cross-examination, Ms. McWilliams admitted that she had kicked Defendant out of the house because she was mad at him over something that had happened. She admitted that she was still mad at Defendant when she talked to him on the phone. She stated that the first time she spoke to Defendant, he told her that "the old man approached him about a bag," that the old man tried to rob him, and that Defendant "f***ed up" and shot him; however, she "later found out what happened." On redirect examination, Ms. McWilliams testified that the "last time we had a conversation," Defendant told her, "I f***ed up. I tried to rob the old man in the neighborhood behind us, and I got him," so that is what she told the police. The trial court then clarified with Ms. McWilliams that she had actually spoken to Defendant twice. The first time he said that the old man tried to rob him, "but it was more to it, and that's how we ended up talking again, and everything came out." The second time Defendant called Ms. McWilliams, he told her "[e]xactly everything that happened" and admitted that he tried to rob the old man. On recross-examination, Ms. McWilliams testified that Defendant told her both versions of what happened. She admitted that she had previously been convicted of two counts of theft in 2011, though she could only remember one. On further re-direct examination, Ms. McWilliams testified that she had previously seen Defendant with guns, including a .9 millimeter and a .38 caliber.

         Dr. Eric Warren testified that he was a former special agent forensic scientist for the Tennessee Bureau of Investigation (TBI), specializing in firearms identification and ballistics testing. Dr. Warren examined the bullet recovered from the victim and determined that it was consistent with a .38 special caliber. No gun was recovered to compare the bullet to, but Dr. Warren testified that such bullets could be fired from either .38 special or .357 Magnum firearms, the majority of which are revolvers. Because revolvers do not eject cartridge casings, it would not be unexpected for none to be recovered from the crime scene. Dr. Warren also testified with regard to gunshot residue. Even though Dr. Benson had collected samples from the victim's hands, Dr. Warren testified that the general policy of the TBI is not to test shooting victims for gunshot residue because "we know that they were associated with a firearm in some form or fashion," and gunshot residue testing "would not answer anything additional." Dr. Warren testified that in the case of two people struggling over a gun, he "wouldn't be surprised if [gunshot residue] was all over everybody, and [he] wouldn't be surprised if it was inconclusive on everybody" due to the sensitivity of the material and the way in which it is distributed when a gun is fired. On cross-examination, Dr. Warren agreed that .38 special is one of the most common types of revolvers. Dr. Warren testified that a gunshot residue report only indicates whether it is present, absent, or inconclusive rather than the amount of gunshot residue in the sample.

         Richard Leach testified that he was indicted with Defendant for the first degree murder of the victim. After he was arrested on December 12, 2015, he gave a statement to police. Leach testified that he did not have an agreement with the State but that he understood that the State would be willing to offer him a plea to something less than first degree murder if he testified truthfully.

         Leach testified that he had known Defendant since high school. On December 1, 2015, he and Defendant were hanging out. Around 4:00 p.m., they headed over to "Red's" house to get a shot for Defendant's dog. Leach was driving Defendant's white Maxima. When they got close to their destination, Defendant told Leach that someone had flagged them down. Even though Leach had not seen the man flagging them down, he pulled over, and Defendant got out of the car. Leach explained, "either dude want to buy some weed or whatever. But I wasn't really paying no attention. I was calling Red to let him know we was outside." Then, Leach heard Defendant calling his name. He looked up and saw Defendant and the victim "tussling or whatever." Leach got out of the car and saw Defendant and the victim on the ground, struggling over a gun. Defendant was kicking the victim to try to get him to let go of the gun. Leach tried to pull Defendant off of the victim. Defendant was able to get up with the gun. Leach recognized it as Defendant's gun, a black revolver, which he had seen Defendant with earlier that day. The victim said, "I can't die like this." Leach told Defendant, "Let him live," and told Defendant to come back to the car with him. Defendant said, "Naw. He tried to shoot me," then "upped [the gun] and shot him." Leach heard three gunshots. Defendant got back into the car, and they drove back to his neighborhood. Leach asked Defendant why he shot the victim, and Defendant responded, "Man, he tried to shoot me." Defendant then gave the gun to a person Leach did not know.

         On cross-examination, Leach denied that he was hoping for a deal and stated that he was "just going to tell what happened." At the time Leach gave his statement to police, he knew he was being investigated for this murder and that he needed to "separate" himself from the situation. He testified that he signed the statement at 1:52 a.m., agreeing that he had been in the interrogation room for "quite some time" and that he was tired and ready to go home, but he denied that he told the police "whatever [he] thought [he] had to tell them to go." Leach testified that when the victim flagged them down, he pulled over and parked on the street in front of "Dirty Red's" house, which was their original destination. Defendant got out of the car and started talking to the victim, whom Leach did not know. However, Leach was not paying attention to Defendant's interaction with the victim until they started fighting and Defendant called for help. Leach stated that he was trying to break up the fight and to prevent anyone from getting shot. Leach denied that he or Defendant took anything from the victim. Leach agreed that Defendant told him after the fact that the victim tried to shoot him. Leach admitted talking to another inmate while waiting for a court appearance but denied saying that he was going to testify against Defendant because "Dirty Red" told him to put it all on Defendant.[2]

         Defendant was arrested on December 9, 2015. Officer Jacob Minor, who participated in serving the arrest warrant, testified that the police went to an address provided by the homicide investigators and were given permission to enter the apartment by a female. Defendant was found hiding behind the bed in the master bedroom. Officer Minor agreed on cross-examination that Defendant was laying or crouching beside the bed, not under the bed, and that Defendant did not attempt to run when the officers entered.

         Defendant testified that he was 27 years old, was born in Memphis, had graduated high school and attended a few months of college, and had children. Defendant stated that he wanted to "tell my side of the story and what really happened." Defendant admitted that he sold marijuana for a living. Defendant testified that on December 1, 2015, around 4:00 p.m., he and Codefendant Leach went to "Dirty Red's" house and parked in the street. Defendant went to get his dog out of the car when a man standing in "Dirty Red's" driveway yelled out and asked Defendant if he had any "weed." The man asked Defendant for 2 grams, so Defendant went to the passenger side of the car to get the marijuana and a scale. Defendant weighed out the marijuana, bagged it in two separate bags, and then went to go meet the man in the street. As Defendant got close, the man "tried to up a gun." Defendant explained,

Before he could up the gun all the way, I grabbed his hand. . . . [A]t the same time, I pushed it, and it went off. I put my other hand on it so he - - to prevent him from trying to aim the gun back at me, I had both hands on the gun.

         Both Defendant and the man fell to the ground. Defendant called out to Leach for help. Leach jumped on top of Defendant, and Defendant "could barely move." Defendant told Leach to get the gun because he had to let go. Defendant got up and "started kicking and hitting the guy, telling him to let go of the gun. He wouldn't let go of the gun." Defendant had to pry the man's fingers off of the gun. Once Defendant had control of the gun, he backed up, told Leach to watch out, and shot three or four times. Defendant testified that he then tossed the gun and got back into the car.

         Defendant testified that he was scared and his adrenaline was rushing, even after he got control of the gun. Defendant claimed that he was trying to protect himself and trying to prevent the man from shooting him. Defendant did not recall either the man or Leach saying anything. Defendant did not know what happened to the bags of marijuana because everything happened so quickly and he was focused on the gun, which he identified as a black revolver. Defendant denied going through the man's pockets or demanding anything from him.

         After the shooting, Defendant and Leach drove to Defendant's mother's neighborhood. Defendant testified that he ran from the scene because he was scared and because he knew he was a convicted felon with drugs and a gun in the car. Defendant denied that he ever took his gun out of the car. When Defendant spoke to Ms. McWilliams a few days later about picking up his child's jacket, she told him that the police were looking for him. He told her, "A couple of days ago, a man tried to rob me, and I killed him." Defendant denied having a second conversation with Ms. McWilliams or changing his story and saying that he tried to rob the man. Defendant admitted that he did not know the victim and had never sold marijuana to him before, but he lived around the corner and occasionally sold marijuana to strangers.

         On cross-examination, Defendant admitted that he had convictions for misdemeanor theft, felony coercion of a witness, and felon in possession of a handgun. Defendant testified that when he gave a statement to the police on December 10, 2015, he told them that "[e]verything that happened that day should be on the ground" because the marijuana was dropped on the ground during the struggle, and he tossed the gun before getting into the car. Defendant told the police that he did not own any weapons because he was a convicted felon, but they did not specifically ask if he had a gun with him that day. Defendant admitted that he carried a gun "[m]ostly" every day. Defendant told police that the victim asked if he had drugs and that he responded he had "loud," also known as "kush." Defendant testified that as he approached the victim with the marijuana, the victim raised the gun with this right hand when Defendant came within reach. Defendant put both his hands on the gun before the victim could raise it "all the way up." When Leach jumped in to help, Defendant was able to get one of his hands free while Leach and the victim struggled over the gun. Defendant picked up their hands and tried to loosen the victim's grip on the gun. Defendant was hitting and kicking the victim, telling him to let go of the gun. Defendant was eventually able to get control of the gun by prying the victim's fingers off of it. On redirect examination, Defendant testified that he could not recall if the victim was larger or smaller than him but that he was slim in December 2015 and had gained roughly 40 to 50 pounds since then.

         At the conclusion of the proof, the jury convicted Defendant as charged of first degree murder, and the trial court imposed an automatic sentence of life in prison. On May 17, 2018, Defendant filed a motion for new trial, which was denied by the trial court on May 23, 2018. Defendant filed a timely notice of appeal.


         On appeal, Defendant argues that the trial court erred by refusing to instruct the jury on self-defense and on voluntary manslaughter as a lesser-included offense of felony murder; that the evidence is insufficient to support his conviction for felony murder; that the trial court abused its discretion in ruling on the admissibility of photographs depicting Defendant and the victim; that the trial court erred by allowing additional security officers to sit behind Defendant throughout the trial; that the trial court erred in overruling Defendant's objections to questions asked by the State regarding Codefendant Leach's credibility and the victim's character for ...

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