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State v. Almahmmody

Court of Criminal Appeals of Tennessee, Nashville

August 23, 2019

STATE OF TENNESSEE
v.
MOHAMED A. ALMAHMMODY

         Session: June 19, 2019

          Appeal from the Criminal Court for Davidson County No. 2016-A-457 Angelita Blackshear Dalton, Judge

         A jury convicted Mohamed A. Almahmmody, Defendant, of one count of first degree premeditated murder and three counts of aggravated assault. The trial court sentenced Defendant to a total effective sentence of life plus six years. On appeal, Defendant argues that the trial court erred in denying his motion to suppress evidence obtained from his cell phone as a result of an invalid search warrant and that the trial court erred in declining to provide a special jury instruction on self-defense in the killing of an innocent bystander. After a thorough review of the facts and applicable case law, we affirm.

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

          Mark C. Scruggs, Nashville, Tennessee, for the appellant, Mohamed A. Almahmmody.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Assistant Attorney General; Glenn R. Funk, District Attorney General; and Amy M. Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and D. Kelly Thomas, Jr., J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Factual and Procedural Background

         On March 8, 2016, the Davidson County Grand Jury indicted Defendant and Tristen Jade Bowen for one count of first degree premeditated murder and three counts of aggravated assault. The trial court severed the trials of Ms. Bowen and Defendant.

         Motion to Suppress

         Prior to trial, Defendant filed a motion to suppress "any evidence that was obtained by the State through the search of . . . Defendant's cell phone; to wit: Samsung Galaxy Note MNPD property barcode #PR25276438." The motion asserted that the affidavit submitted in support of the search warrant did not sufficiently establish the affiant's basis of knowledge that Defendant was using the phone at issue during the commission of the offenses. The affidavit, sworn on August 18, 2015, stated that the MNPD sought to search for "[i]mages, [s]ims card, [m]icro memory data cards, text messages, call history, contacts, voice mails, emails, apps, any social media accounts, and all electronic information or data relating to cell phone and any evidence or items which would be used to conceal the forgoing or prevent [its] discovery." The affidavit listed the following statement of facts in support of probable cause:

On 8/11/15, a homicide occurred at 2118 Vine Hill Rd. This cell phone was recovered from the suspect [Defendant] when he was arrested. It is believed that the suspect used this phone at the time of the homicide. There are communications from the suspect that contain information in regards to the homicide in question. The forensic download of the cell phone is needed to further the investigation.

         Regarding Detective Chandler's basis of knowledge, the affidavit stated that Detective Chandler was assigned to the Midtown Hills Precinct Investigation Section as a Criminal Investigator. The affidavit stated that Detective Chandler had "participated in investigations involving violations of [h]omicides, [r]obbery, [a]ggravated assault, [t]hefts, weapon and narcotic related cases[, ]" had "conducted surveillance, arrested suspects, executed search warrants, seized evidence, and assisted in the preparation of cases for trial where [Detective Chandler] ha[d] testified as a witness." Additionally, Detective Chandler had previously "questioned suspects, . . . consulted with other officers and prosecuting attorneys, and, as a result, ha[d] gained considerable experience."

         At a hearing on Defendant's motion to suppress, no witnesses testified, and after entertaining arguments from the parties, the trial court took the motion under advisement. After a recess, the trial court denied Defendant's motion to suppress. The trial court found that, while "there probably could have been at least one more sentence [in the affidavit] to make certain facts more clear," based upon the content of the probable cause statement, the search warrant met the requirements of State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017).

         Request for Jury Instruction

         During trial, Defendant filed a written request for the following special jury instruction: "A defendant who unintentionally injures a third party bystander while using justifiable force in self[-]defense may not be held criminally liable for his injury to the bystander."

         The trial court denied the request and, instead, gave the following instruction to the jury:

Included in the defendant's plea of not guilty is his plea of self-defense.
If a defendant was not engaged in unlawful activity and was in a place where he had a right to be, he would have no duty to retreat before threatening or using force against the alleged victim when and to the degree the defendant reasonably believed the force was immediately necessary to protect against the alleged victim's use or attempted use of unlawful force.
In determining whether the defendant's use of force in defending himself was reasonable, you may consider not only his use of force but also all the facts and circumstances surrounding and leading up to it. Factors to consider in deciding whether there were reasonable grounds for the defendant to fear death or serious bodily injury from the alleged victim include but are not limited to any previous threats of the alleged victim made known to the defendant; the character of the alleged victim for violence, when known to the defendant; the animosity of the alleged victim for the defendant, as revealed to the defendant by previous acts and words of the alleged victim; and the manner in which the parties were armed and their relative strengths and sizes.
The use of force against the alleged victim would not have been justified if the defendant provoked the alleged victim's use or attempted use of unlawful force, unless the defendant abandoned the encounter or clearly communicated to the alleged victim the intent to do so, and the alleged victim nevertheless used or attempted to use unlawful force against the defendant.
If from all the facts and circumstances you find the defendant acted in self-defense, or if you have a reasonable doubt as to whether the defendant acted in self-defense, you must find him not guilty.

         Jury trial

         The State's proof

         Natasha Fite testified that, on August 11, 2015, she lived in the Vine Hill Road community with her son, Kenny Hatcher, who was eighteen at the time. She explained that the community had one entrance and one exit. Ms. Fite stated that the Vine Hill Community Center was a three- to five-minute walk from her residence. Mr. Hatcher frequently played basketball at the Vine Hill Community Center on Thursdays. On cross-examination, Ms. Fite testified that Mr. Hatcher did not have a reputation in the Vine Hill community for being involved with crime or for carrying a weapon. She recalled speaking with a detective approximately ten or eleven days before August 11, 2015, about a robbery that occurred in the Vine Hill community, but she did not remember informing the detective that Mr. Hatcher carried a weapon. She denied that Mr. Hatcher was suspected of being involved in the robbery. Ms. Fite agreed that Mr. Hatcher went to high school with Montez Love and that Mr. Hatcher was also friends with Kevin Smith and Antywuan Goodner. On redirect examination, Ms. Fite agreed that, after her son was shot and killed, she spoke with Detective Anthony Chandler. She agreed that she told Detective Chandler that, on the day before the shooting, Mr. Hatcher told her that his life was in danger because someone believed that he had committed a robbery. Mr. Hatcher informed Ms. Fite that he did not commit the robbery at issue and that he wanted to stay with his grandmother in La Vergne. During recross-examination, Ms. Fite explained that she had heard that Mr. Hatcher carried a weapon; when she asked him if he had a weapon on the day prior to the shooting, Mr. Hatcher informed her that he had previously carried a weapon, but he did not have it anymore.

         Antywuan Goodner testified that he was a close friend with Mr. Hatcher. On August 11, 2015, he played basketball at the Vine Hill Community Center with Mr. Hatcher, Mr. Love, Mr. Smith, Mr. Goodner's cousin, and some other friends from the Vine Hill community. When the community center closed that evening, Mr. Goodner, Mr. Smith, Mr. Hatcher, and Mr. Love went to Mr. Hatcher's house and sat on the front porch. Around 9:30 p.m., a black Infiniti pulled up to Mr. Hatcher's house; Mr. Goodner was not familiar with the vehicle. When the vehicle approached the house, Mr. Goodner could only see the driver; however, he observed there was a passenger in the vehicle after the front passenger window was lowered. The black Infiniti stopped in front of Mr. Hatcher's house, and the female driver said, "What's up?" Mr. Goodner returned the greeting and observed that the male passenger pointed a gun through the open front passenger window and said something unintelligible. Mr. Goodner "took off running" towards the entrance of the community, and the male passenger began shooting. Mr. Goodner was scared and believed that the shooter would kill him. He heard the shooter fire over six times.

         After Mr. Goodner ran from the shooting, he heard Mr. Hatcher's female neighbor scream. He returned to Mr. Hatcher's house and observed Mr. Hatcher lying on the back porch of the house. He did not see the black Infiniti leave the scene. After Mr. Goodner returned to Mr. Hatcher's house, police questioned him about the shooting. On August 13, 2015, two detectives spoke with Mr. Goodner while he was at school to see if he could identify the shooter. Mr. Goodner identified Defendant as the shooter both in the photographic lineup and at trial. Mr. Goodner asserted that none of the four friends sitting on Mr. Hatcher's porch on the evening of August 11 had a gun. He also stated that none of them threatened the driver of the Infiniti or Defendant. Mr. Goodner agreed that someone committed a robbery in the Vine Hill community prior to Mr. Hatcher's death and that Mr. Hatcher feared that he was in danger. He also agreed that the four friends were discussing Mr. Hatcher's fear immediately prior to the shooting.

         During cross-examination, Mr. Goodner stated that he did not discuss the robbery with Mr. Hatcher. Mr. Goodner knew an individual named "Kevonte" but did not discuss the robbery with him. He explained that approximately ten minutes elapsed between the shooting and his return to Mr. Hatcher's house. When he returned to the house, he observed Mr. Love, Mr. Smith, and other neighbors gathered around Mr. Hatcher's body. He also heard sirens from approaching emergency responders. Mr. Goodner testified that he had not seen Defendant prior to the shooting.

         Montez Love testified that in August 2015, he was seventeen years old, lived in the Vine Hill community, and was friends with Mr. Hatcher. On August 11, 2015, Mr. Love began playing basketball with Mr. Hatcher, Mr. Goodner, and other members of the neighborhood around seven p.m. at the Vine Hill Community Center. After Mr. Love and his friends finished playing basketball, Mr. Love walked to his house with Mr. Goodner. He saw Mr. Hatcher sitting on the front porch of Mr. Hatcher's house with Mr. Smith. Mr. Love and Mr. Goodner walked over to Mr. Hatcher's house and sat with Mr. Hatcher and Mr. Smith on the front porch. The friends discussed college and their future plans. Approximately fifteen minutes later, a black Infiniti stopped in front of Mr. Hatcher's house. Mr. Hatcher said, "[W]ho is that?" Mr. Love heard a female voice say, "[W]hat's up[, ] you guys[?]" He then saw a man in the front passenger seat point a gun out the vehicle's window. Mr. Love ran and heard shots. He looked back and observed Mr. Hatcher "hop over the guard rails at the house and he had crawled to the back porch." Mr. Love continued running and heard a total of eight or nine shots.

         Mr. Love later returned to Mr. Hatcher's house and spoke with police about the shooting. He observed that, after the shooting, the black Infiniti circled the Vine Hill community, stopped for a few seconds, and then exited the community. Mr. Love recognized the driver of the black Infiniti as Tristen Bowen. Mr. Love attended school with Ms. Bowen, and he recognized the black Infiniti as Ms. Bowen's vehicle. Mr. Love did not recognize the passenger of Ms. Bowen's vehicle who shot Mr. Hatcher. He asserted that none of the four friends had a weapon on the evening of August 11, 2015. Mr. Love was not aware of a robbery that occurred in the Vine Hill community a week or two prior to Mr. Hatcher's death. He also stated that he did not think anyone was concerned for Mr. Hatcher's safety prior to the shooting. On cross-examination, Mr. Love agreed that, during his interview with police on August 12, 2015, he discussed the robbery of Ms. Bowen and Muslah al-Nimar that occurred approximately ten days prior to Mr. Hatcher's death.

         Kevin Smith testified that, at the time of Mr. Hatcher's death, he had known Mr. Hatcher for four or five years. On the evening of August 11, 2015, Mr. Smith played basketball at the Vine Hill Community Center with Mr. Hatcher, Mr. Love, Mr. Goodner, and other members of the Vine Hill community. After the four friends finished playing basketball, they went to Mr. Hatcher's house and sat on the front porch or stood in the front yard. While the four friends were at Mr. Hatcher's house, Mr. Smith observed a vehicle, a black Infiniti, approaching Mr. Hatcher's house from the entrance of the community. Mr. Smith initially only saw the driver of the black Infiniti, a female, who stopped in front of Mr. Hatcher's house and said, "[W]hat's up, what's up[?]" Mr. Smith said, "[W]ho are you?" Mr. Smith then saw a man in the front passenger seat, which was closest to Mr. Hatcher's house, lower the window and point a gun at the four friends. The passenger began shooting towards Mr. Hatcher's house, and Mr. Smith ran from the scene. Mr. Smith heard the passenger shoot between five and nine times. He heard tires screech, but he did not see the vehicle leave the community. When Mr. Smith returned to Mr. Hatcher's house, he initially went to the front of the house and saw that the front door was open. Mr. Smith walked around to the back of the house and observed Mr. Hatcher lying on the back porch. On August 12, 2015, Mr. Smith viewed a photographic lineup and identified Defendant as the passenger of the black Infiniti who shot Mr. Hatcher. Mr. Smith asserted that none of the four friends had a gun with them on the evening of August 11, 2015. He also stated that none of the four men verbally or physically threatened Defendant or the female driver of the black Infiniti.

         Mr. Smith was aware that someone committed a robbery in the Vine Hill community a few weeks prior to Mr. Hatcher's death. He testified that he and Mr. Hatcher observed the robbery while they were sitting on Mr. Hatcher's front porch. Mr. Smith stated that people ran away from the scene of the robbery and ran past Mr. Hatcher's house towards a park. After the robbery, a female approached Mr. Smith and Mr. Hatcher and yelled at Mr. Hatcher, who was shocked. Mr. Smith testified that the female who approached Mr. Hatcher after the robbery was the same woman who drove the black Infiniti while Defendant shot Mr. Hatcher. After Mr. Smith and Mr. Hatcher observed the robbery, Mr. Hatcher informed Mr. Smith that he received threatening calls and messages.

         William Taylor stated that in August 2015, he worked for the Metro Nashville Police Department ("MNPD") at the Midtown Hills Precinct as a patrol officer. On August 11, 2015, Officer Taylor responded to Mr. Hatcher's residence on Vine Hill Road, after dispatch informed Officer Taylor that shots had been fired at the location. When Officer Taylor arrived at the scene of the shooting, "there was a small to medium size crowd of people outside the residence." After exiting his patrol car, Officer Taylor observed bullet casings on the street outside of Mr. Hatcher's residence. Officer Taylor walked behind the residence and saw Mr. Hatcher lying "face down half-way in, halfway outside of the residence." Mr. Hatcher was not moving, and his breathing was shallow. Officer Taylor began to provide medical aid to Mr. Hatcher and observed a gunshot exit wound on the right side of Mr. Hatcher's chest and an entry wound on Mr. Hatcher's left side under his arm. After an ambulance arrived and transported Mr. Hatcher to a hospital, Officer Taylor secured the scene and collected evidence, including shell casings and "a bullet hole in a nearby air conditioner unit." Officer Taylor did not observe any weapons at the crime scene.

         Officer Chris Davis testified that in August 2015, he worked at the Midtown Hills Precinct of the MNPD. On August 11, 2015, Officer Davis responded to Mr. Hatcher's residence regarding "a juvenile that had been shot and a 'shots fired' call." When Officer Davis arrived at the scene, he ran to the back of the residence and observed Officer Taylor giving Mr. Hatcher medical aid. Officer Davis observed that the back door of the residence was open, and he conducted a protective sweep of the residence with other officers. Officer Davis did not observe any individuals or weapons inside Mr. Hatcher's residence. He also did not observe any weapons on Mr. Hatcher while Officer Taylor gave Mr. Hatcher aid. After clearing the residence, Officer Davis assisted in controlling the crowd and obtained information about the shooting. Some witnesses observed that "a dark colored sedan, possibly an Infiniti[, ] . . . had pulled up in front of the house[, ] fired several shots, [and] took off." After hearing the ...


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