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State v. Colbert

Court of Criminal Appeals of Tennessee, Knoxville

September 24, 2019

STATE OF TENNESSEE
v.
ROSHAUN COLBERT

         Session: July 23, 2019

          Appeal from the Criminal Court for Knox County No. 104464 Bobby R. McGee, Judge

         On February 8, 2018, a Knox County jury convicted Roshaun Colbert, Defendant, on one count each of reckless endangerment, evading arrest, reckless driving, attempted tampering with evidence, and possession of drug paraphernalia. The trial court sentenced Defendant to a total effective sentence of twelve years. On November 14, 2018, the trial court vacated Defendant's conviction for reckless endangerment because reckless endangerment was not properly charged in the indictment as a lesser-included offense of aggravated assault. On appeal, Defendant argues that there was insufficient evidence to convict Defendant of attempted tampering with evidence and that the trial court erred in instructing the jury on flight. 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

          Joshua Hendrick, Knoxville, Tennessee, for the appellant, Roshaun Colbert.

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas White Spangler and Katherine C. Redding, Assistant Attorneys General; Charme P. Allen, District Attorney General; and Phil Morton, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Factual and Procedural Background

         On November 18, 2014, the Knox County Grand Jury indicted Defendant for aggravated assault in count one, evading arrest in count two, reckless driving in count three, violation of driver's license law in count four, tampering with evidence in count five, simple possession of a controlled substance in count six, possession of drug paraphernalia in count seven, violation of window tint law in count eight, and failure to provide proper evidence of financial responsibility in count nine. In count ten of the indictment, the Grand Jury charged Defendant with violating the criminal gang offense statute, pursuant to Tennessee Code Annotated section 40-35-121.

         The case proceeded to trial on counts one, two, three, five, and seven on April 4, 2017, after the State entered a nolle prosequi as to the other counts in the indictment.

         Lieutenant Kenneth Brian Bush testified that he was a patrol supervisor with the Knoxville Police Department ("KPD") east district. Lieutenant Bush explained that, on April 3, 2014, he was a sergeant with the KPD east district and was on duty at approximately 2:00 a.m. He traveled to the scene of a possible stabbing in the 2700 block of East Magnolia Avenue, parking in front of an apartment building. After checking on the stabbing victim, Lieutenant Bush walked around the building looking for witnesses, possible suspects, or other evidence. Lieutenant Bush testified that the parking lot behind the building was well-known for narcotics trafficking. Lieutenant Bush spotted Defendant sitting in his vehicle with the engine running. The vehicle's windows were very darkly tinted. Lieutenant Bush explained that he tapped on the driver's side window, and Defendant rolled it down approximately three-quarters of the way. Inside the vehicle, Lieutenant Bush observed Defendant in the driver's seat, a female in the front passenger seat, and a male in the back seat behind the driver.

         Lieutenant Bush introduced himself and looked in the vehicle with his flashlight, where he saw two baggies in Defendant's lap in plain view. One baggie contained a green leafy substance, and the other baggie contained a white powdery substance. Lieutenant Bush stated that, based on his experience as a patrol officer, he recognized the sight and smell of the green leafy substance as marijuana and that he knew the quantity of each baggie was several grams. Lieutenant Bush testified that, when Defendant saw that Lieutenant Bush was a police officer, Defendant seemed "extremely nervous" and "very surprised." Lieutenant Bush asked for and received Defendant's identification card. Lieutenant Bush stated that he asked Defendant to remain where he was and to stay in the vehicle. Lieutenant Bush stepped "five or ten feet" away from the vehicle to seek assistance from another officer from the nearby scene of the stabbing. Lieutenant Bush noticed some movement of the vehicle, so he approached the vehicle and reached for the driver's side door handle. When Lieutenant Bush was "one or two feet" from the vehicle, Defendant made a "very hasty turn to the right of the steering wheel and placed the vehicle in reverse and very quickly pressed the acceleration and backed up." Lieutenant Bush testified that Defendant's turning the steering wheel right and backing up caused the vehicle to "come to the left, which [was] right where [Lieutenant Bush] was standing." Lieutenant Bush "lunged to the left . . . in fear for [his] life." Lieutenant Bush testified that he then drew his service weapon.

         Next, Lieutenant Bush explained that Defendant placed the car in "drive" and traveled westbound through the alleyway towards Harrison Street. Based on his training of speed evaluation, Lieutenant Bush estimated Defendant was traveling fifty miles per hour in the alleyway, where the posted speed limit was fifteen miles per hour. Lieutenant Bush testified that Defendant was "traveling at a high rate of speed, in a reckless manner, [and] did not stop at the intersection" of the alleyway with Harrison Street. At that point, Defendant crashed his vehicle in a grassy area, approximately one and one half blocks from the parking lot. Lieutenant Bush stated that, when he and the other officers arrived at the scene of the crash, all the occupants had fled. The officers towed Defendant's vehicle and, upon inspection, recovered two marijuana blunts in an ashtray, two cell phones, the vehicle owner's identification, joint rolling papers, and a baggie containing a white powder residue. Lieutenant Bush said that he recovered "several baggies." Lieutenant Bush testified that, after Defendant crashed the vehicle, there was only a trace amount of the white powdery substance left in one baggie, which was less than the amount he observed earlier when Defendant rolled down his window. Lieutenant Bush testified that he did not find the baggie containing the marijuana in the vehicle. Lieutenant Bush testified that officers found the backseat passenger from Defendant's vehicle and arrested him for public intoxication.

         On cross-examination, Lieutenant Bush stated that he did not send the recovered baggie with the white powdery residue to the Tennessee Bureau of Investigation ("TBI") for testing because, based on his experience, there was an insufficient amount to test.

         On redirect examination, Lieutenant Bush testified that the amount of the white powdery substance he initially observed would have been enough to send to TBI for testing.

         Defendant testified that in the early morning of April 3, 2014, he was behind an apartment building located on Magnolia Avenue in Knoxville that was well-known for narcotics trafficking. Defendant stated that he was sitting in a four-door 1995 Toyota Camry with two other individuals. Defendant explained that he had some marijuana sitting in his lap that night, "probably a $10 sack[, ]" which he was planning to smoke. Defendant stated that, when the female passenger saw Lieutenant Bush approach the car, she asked Defendant to "pull off" because there was a warrant out for her arrest. Defendant testified that he refused to pull away because he did not want Lieutenant Bush to think he was "doing something." He stated that he rolled the window down when Lieutenant Bush knocked. Defendant said that Lieutenant Bush told him, "I ain't going to say nothing about the drugs in the car" and asked for Defendant's identification. Defendant claimed that he forgot the marijuana was sitting in his lap, so he did not understand Lieutenant Bush's reference to drugs. Defendant handed Lieutenant Bush his identification. When Lieutenant Bush told Defendant to place his hands on the steering wheel, Defendant complied. Defendant explained that he complied when Lieutenant Bush ordered him to roll down the backseat window where the male passenger was sitting. Lieutenant Bush asked Defendant and his passengers if they knew anything about the stabbing that had occurred nearby. Defendant stated, "I didn't want to be nowhere around all that so . . . when I rolled that back window down, [and Lieutenant Bush] got to grabbing that holster, man, all I did, [I] put it in reverse and drove straight back. I didn't turn that car nowhere near him." Defendant stated that he had no intention of hurting a police officer because "that's a life sentence to do something to an officer." Defendant testified that, after driving straight back, he turned his car, and then Lieutenant Bush drew his weapon. Defendant claimed that Lieutenant Bush yelled, "I['ll] shoot you. I['ll] kill you, motherf**ker. I['ll] kill you. Stop." Defendant stated that he ducked down when Lieutenant Bush drew his weapon.

         On cross-examination, Defendant testified that he did not know anything about a white powdery substance in his car. He said, "I didn't have . . . no cocaine on my lap. I had the weed." Defendant stated that he did not move from his position until Lieutenant Bush reached for his weapon. He said that Lieutenant Bush never instructed him not to leave. Defendant testified that, from where Lieutenant Bush stood, he could not have seen whether Defendant failed to stop at the ...


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