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State v. Ware

Court of Criminal Appeals of Tennessee, Nashville

November 7, 2019


          Assigned on Briefs May 15, 2019

          Appeal from the Criminal Court for Davidson County No. 2017-A-754 Angelita Blackshear Dalton, Judge

         The Defendant-Appellant, Joseph L. Ware, was convicted by a Davidson County jury of first degree felony murder (count 4), second degree murder (count 5), attempted especially aggravated robbery (count 6), attempted aggravated robbery (counts 3, 7), reckless endangerment (counts 8, 9), aggravated assault (count 10), and theft under $500 (counts 2, 11, 12), for which he received an effective sentence of life plus 10 years imprisonment. In this appeal as of right, the Defendant raises the following issues for our review: (1) whether the trial court "committed reversible error by the failure to charge the jury in the law regarding accomplice testimony;" (2) whether the trial court erred in admitting into evidence posts from the Defendant's Facebook page; (3) whether the prosecutors engaged in prosecutorial misconduct during closing argument by "emotional displays . . . calculated to inflame and/or play to the sympathies of the jury" thereby denying the Defendant a fair trial; (4) whether the evidence is sufficient to support the conviction of first degree felony murder; and (5) whether the trial court erred in imposing consecutive sentencing. Upon our review, we reverse and remand count eight for a new trial because felony reckless endangerment is not a lesser included offense of attempted first degree murder. In all other respects, the judgments of the trial court are affirmed.

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

          David A. Collins, Nashville, Tennessee, for the Defendant-Appellant, Joseph L. Ware.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant Attorney General; Glenn Funk, District Attorney General; and Amy M. Hunter and Addie Askew, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.



         In the early morning hours of July 23, 2016, the Defendant and his co-defendant, Jamal Bekhtyar, engaged in a crime spree during which Billy Ray Plunk, one of the victims, was shot and killed. The Defendant admitted that he participated in the crime spree and that he shot and killed the victim, Billy Ray Plunk. However, he claimed that he "renounced or abandoned" his intent to rob the victim and that he shot the victim in self-defense. The following proof was adduced at the Defendant's trial, conducted on January 8-12, 2018.

         Mary Beth Plunk, the mother of Billy Ray Plunk and Zachary Plunk (the Plunk brothers), testified that she and her husband raised four sons in Cheatham County, Tennessee. She identified the Defendant as someone with whom her sons were familiar from their neighborhood and said that he had been to their home to swim in their pool. She also identified a photograph of her son, Billy Ray Plunk, which was admitted as an exhibit.

         Investigative Sergeant Richard Lowry of the Metropolitan Nashville Police Department (MNPD) testified that there were three related crime scenes in this case: a vehicle theft from the Marathon gas station, an attempted robbery from the apartment complex of Rebecca Mahaffey, and a homicide at the apartment complex of the Plunk brothers, all of which involved a similar vehicle. Investigator Lowry's initial involvement was in the attempted robbery of Rebecca Mahaffey, which involved a silver SUV "that was similar to the description of the homicide suspect vehicle." He explained that law enforcement had also received a report of a stolen SUV from a nearby Marathon gas station between one and two o'clock that same morning and that the license plate number to the stolen SUV was connected to several "beer runs" or thefts that had occurred the same morning. Officer Benjamin Cole testified that the day after the offenses, July 24, 2016, he recovered the vehicle stolen from the Marathon gas station, an "Infiniti SUV," within two blocks of the Marathon gas station. He testified that the license plate on the SUV when it was recovered, "W24-35X," did not match the stolen vehicle. The owner of the license plate, Braden Cameron, later confirmed that it had been stolen from his 2001 Dodge Ram van on or about July 23 or 24, 2016. Officer Charles Linville of the MNPD took photographs of the Infinity SUV and processed it for evidence. He also removed the license plate, from which he obtained fingerprint evidence to be analyzed by a latent fingerprint examiner. He identified the stolen license plate removed from the Infinity SUV, which was admitted as an exhibit at trial.

         Daniel Ford, the assistant manager of the Twice Daily Shell gas station and convenience store in Davidson County, testified that sometime after 3:00 a.m. on the morning of the offense his store "had a beer run." He explained that a "beer run" occurs when "people [] come in and grab as much beer as they can and just walk out the door and get in the car and leave." In this instance, two men came into the store. While one man stood in front of the assistant manager, the other man went to the back of the store to get the beer. Although the men were told that by law it was too late to purchase beer, they took the beer and walked out of the store without paying for it. The assistant manager testified that the estimated value of the beer was between $55 and $65, and that he did not give the men permission to take the beer from the store. The events as described by the assistant manager were recorded on the store's surveillance system, a video of which was admitted into evidence. The theft was subsequently reported to the police.

         Yazid Fahhoury, a cashier at the BP Mapco, testified that around 5 a.m. on the morning of the offense "some guy" came into the store, grabbed some beer, and ran out of the store without paying. The cashier followed the thief outside and observed him get into a "silver car, SUV, Infinity FX35" with another man and drive away. The cashier wrote down the license plate number and called the police. The BP Mapco had a surveillance system that recorded the theft, a video of which was admitted at trial as an exhibit and played for the jury. The cashier did not know the man and did not give him permission to take the beer. The man took four cases of beer valued at $9.99 each.

         Detective Trevor Von Dohlen was off duty on the day of the theft from the BP Mapco and preparing to go out of town on a trip. He had gone to the BP Mapco to fill his tires with air and entered the store to get quarters for the change machine. While in the store, Detective Dohlen observed a male white individual grab some beer and leave without paying. He followed the individual outside and observed him get into the passenger side of a "silver SUV, Infiniti." Detective Dohlen described the driver of the SUV as a "heavy set male black" with a tattoo between his eyes. Detective Dohlen recorded the license plate number and provided it to the store clerk. Upon returning from the trip, he researched the case and immediately recognized the two individuals connected to the stolen license plate number as the same individuals he had seen take the beer. At trial, he identified himself in the video from the BP Mapco that had been previously shown to the jury. Finally, he identified the Defendant at trial as the individual he observed as the driver of the SUV on the night of the theft.

         Rebecca Mahaffey testified that around 5:20 a.m. on the morning of the offense, she was preparing to leave for summer vacation and was loading her two small children into her van. She had put her oldest child, age 7, in the van, and was about to retrieve her younger child, age 2, from her apartment when she observed an SUV enter her apartment complex. When she returned from getting her younger child, she noticed that the SUV had parked "in an awkward spot . . . very near to her van." She strapped her younger child in the van and closed the door. As she walked around the rear of her van, a man approached her from the bushes with a gun. She said the man had a bandana around his face and said, "you're cool, I just want your money. You know, be cool, be cool." Mahaffey told the man that her purse was in the back of her van. When she opened the door, the man was "right on [her]" with the gun, and she asked him "to please not let the children see the gun." She testified further that she told the man that children were in the van prior to opening the door, but he did not retreat. She said the man put the gun behind his back and said, "I won't let them see it."

         Mahaffey continued to get her bags from the back of her van. She was "fumbling" and "shaking" and set her bag on the ground. As she was kneeling on the ground going through her bag, she realized that she only had credit cards and no cash. She told the man that she did not have anything, and she feared her children might see her die. However, the man "stood there for a second . . . put his hands in the air, and he said, 'You know, what, I'm sorry. I have a horrible addiction pray for me' and he left." An aerial photograph and a map of Mahaffey's apartment complex were admitted as a collective exhibit. Although she was unable to identify the man, Mahaffey described him as an African American male, stocky build, 5'9" or 5'10", with braids that had rubber bands. She was also certain that there was another person inside the SUV. Following the offense, Mahaffey called the police. At trial, she identified a photograph of an SUV, admitted as exhibit 4, that was similar to the one she saw that morning during the offense.

         MNPD Officer Clayton Lewis responded to the robbery call from Mahaffey at her apartment complex. He testified that while he was speaking with Mahaffey, another call was relayed over dispatch concerning a person that had been shot. The location of that offense was at an apartment complex only a mile away. Officer Steven Popp of the MNPD also responded to the call from Mahaffey's apartment complex and confirmed that another shooting call was relayed over his radio while Officer Lewis was interviewing Mahaffey. Officer Popp testified that the description of the perpetrator given by Mahaffey was similar to the description of the perpetrator of the shooting offense. Upon arrival at the apartment complex of the shooting, Officer Popp established a perimeter, set up crime scene tape, and eventually followed the ambulance to the hospital. Officer Popp determined that the victim of the shooting, Billy Ray Plunk, had died at approximately 6:30 that morning.

         Zachery Plunk, age 24, testified that he was the youngest of the four Plunk brothers. He said that his brother, Billy Ray Plunk, was 29 years old and lived with him at the time of the offense. His brother was his best friend and had one child, age 3. On the morning of the offense, around 5:00 a.m., he and his brother woke up and left to get something to drink at the Twice Daily, which was minutes from their apartment. The brothers purchased their items and left the store without incident. Zachary drove back to the apartment complex and parked his car.[1] As he stepped out of his car, he was "looking down the barrel of a gun." Zachary testified that a man then demanded "everything you got," and Zachary told him he did not have anything. Zachary said that the man had the gun pointed at him while his brother was getting out of the car. The man then demanded the same from his brother, who laughed, shook his head, and crossed his arms. Zachary said his brother asked, "are you serious . . . I think I know you. You look familiar."

         The man angrily replied, "you don't know me" with the gun pointed at Billy Ray. Zachary testified that his brother said, "okay," and began taking off his shirt. When Billy Ray did so, the man "backed up a little bit so there was a little distance a little space between them." Zachary said his brother made his way to the back of the perpetrator's SUV and got the license plate number. At this point, his brother smiled and waved and started walking back toward Zachary. Zachary said the man then started shooting and shot his brother in the back. He heard two shots. Zachary ducked down and got behind their car. The man got in the perpetrator's SUV on the passenger side and the driver sped off. Once Zachary got to his brother, he did everything he could to stop the bleeding and find the bullet holes. He called the police, his family, and the ambulance. He identified the Defendant at trial as the perpetrator of the offense. Photographs depicting the scene were admitted into evidence.

         Zachary admitted to calling the Defendant a "b---h" during the offense, but he denied calling him any racial slurs because the defendant had a gun on him. Defense counsel then played a segment of Zachary's prior statement to police during which he said, "and I couldn't help [Billy Ray Plunk] and them god damn n ----- s f---ing took him from me [.]"

         Helen Wallace, a resident of the Plunk brother's apartment complex, testified that she awoke on the morning of the offense to the sound of gunshots. She ran to her balcony and saw "a car pulling away with a gentleman on the passenger side reaching up shooting toward the sky and then the victim l[y]ing on the ground." She described the car as a "hatchback" type vehicle. She said two men were in the car.

         Several officers with the MNPD responded to the scene at the Plunk brother's apartment complex and testified at trial. Officer Ryan McManman "established" the crime scene, contacted medical personnel, briefly spoke with Zachary Plunk, and observed three shell casings on the scene. Officer Kristen Morgan attempted to aid the shooting victim, and Officer Douglas Atwood called a tow truck to remove the victim's car for processing. Officer Mark Rosenfeld took several photographs that were subsequently admitted into evidence, and he also marked various items from the scene including a gray towel, a black shirt, the shooting victim's undershorts, a white shirt, and three shell casing, all of which were admitted as exhibits. Photographs of the stolen van were also admitted into evidence; however, no fingerprints were found. Photographs of the victims' car were taken and admitted into evidence. Officer Steven Jones created a crime scene diagram/sketch, which was also admitted into evidence.

         Detective Barry Scarborough of the MNPD received the report of the BP Mapco theft and testified that the license plate and vehicle description recorded by the cashier matched the vehicle description involved in the attempted robbery and the shooting. Detective Scarborough also responded to the scene of the shooting and observed a bullet strike on a van "directly next to" the victims' vehicle. After receiving consent from the van owner, Detective Scarborough recovered a "nearly intact bullet round" or the nose of a bullet from inside the van. Detective Scarborough testified that the bullet round appeared to have been recently fired and that the owner of the van denied any knowledge of the bullet. After speaking further with the owner of the van, Detective Scarborough went to the Twice Daily to trace the Plunk Brothers' movement prior to the offense. Detective Scarborough obtained the video surveillance from the Twice Daily, and he testified that it showed the victims purchasing items and leaving the store. As the victims backed out of the parking lot, the video showed a silver SUV follow them. Detective Scarborough recovered the video for evidence, and it was admitted as an exhibit and played for the jury at trial. Detective Scarborough also assisted in retrieving the video from the scene of the SUV theft from the Marathon gas station. The video was admitted as an exhibit and played for the jury at trial. The video showed two individuals, one, later identified as co-defendant Jamal Bekhtyar, and another individual unrelated to this case. Co-defendant Bekhtyar is seen jumping into the driver's seat of the SUV and driving off, while the owner of the SUV "grabbed onto the vehicle."

         Detective William Stokes, the lead investigator in this case, confirmed the timeline of events as previously testified to by other officers. He also created still photographs from the videos from the convenience stores, admitted as exhibits at trial, and distributed them department wide and to the media. He was later contacted by members of the Plunk family who identified the male black as the Defendant. He also received information from a federal probation officer identifying the co-defendant as Jamal Bekhtyar. Detective Stokes contacted Bekhtyar, who subsequently provided a statement admitting to his involvement in each of the offenses. Bekhtyar also identified himself in the still photographs and the Defendant from a photographic array. The photographic array was admitted as an exhibit at trial. Detective Stokes agreed that the weapon used was a .9mm semi-automatic, which ejects an empty cartridge after each firing unless there is a malfunction. He further agreed that the evidence supported the theory that the Defendant had a gun pointed at the Plunk brothers while he was backing away from them. Out of the presence of the jury, there was much discussion concerning the truthfulness of statements made by Zachary Plunk to Detective Stokes, which were subsequently denied at trial. The parties ultimately agreed to play the entirety of Zachary Plunk's interview for the jury, which was admitted as an exhibit at trial.

         Officer Michael Lynch of the MNPD testified that on July 25, 2016, he received a department wide email from Detective Stokes for assistance in identifying an individual in a still photograph. He identified the individual in the photograph as the Defendant and provided this information to Detective Stokes. Officer Lynch said that the ...

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