State of Tennessee v. Mario Patterson ( 2017 )

09/18/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 1, 2017
STATE OF TENNESSEE v. MARIO PATTERSON
Appeal from the Criminal Court for Shelby County
No. 14-01032 Chris Craft, Judge
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No. W2016-02080-CCA-R3-CD
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A Shelby County jury convicted the Defendant, Mario Patterson, of first degree felony
murder, and the trial court imposed a mandatory life sentence. On appeal, the Defendant
asserts that the State failed to prove that he intended to commit a robbery and, therefore,
he was improperly convicted of first degree felony murder. After review, we affirm the
trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.
Laurie W. Hall, Memphis, Tennessee, for the appellant, Mario Patterson.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Amy P. Weirich, District Attorney General; and Tracye Jones, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
A Shelby County grand jury indicted the Defendant and his co-defendant, Dondre
Johnson for the first degree felony murder of David Santucci, the twenty-seven-year old
victim. The Defendant’s and co-defendant’s cases were severed, and the Defendant’s
case proceeded to trial. At trial, the parties presented the following evidence: Steven
Ferguson worked as a bouncer at the nightclub Rumba Room on August 12, 2013. Mr.
Ferguson was standing outside the Rumba Room with some co-workers, smoking, at
around 1:45 a.m. on August 12. Mr. Ferguson observed a Pontiac driving south on South
Main Street, make a U-turn on South Main Street, and begin driving north. The car
appeared to back up “like they was fixin to park” and then Mr. Ferguson heard a gunshot.
He immediately looked down the street and saw a man hop into the Pontiac and then the
Pontiac “peeled out” and turned off of South Main Street onto Pontotoc Street.
After observing the Pontiac drive away, Mr. Ferguson and another security guard
walked ten to twenty feet down the street and saw the victim lying on the ground with a
gunshot wound to his chest. Two “girls” had followed the men down the street, and the
other security guard asked one of them to call the police and the other to apply pressure
to the victim’s wound. The victim attempted to speak but was unable to do so. Mr.
Ferguson and the other security guard provided a description of the car to the police, and
the Pontiac was located shortly thereafter. On cross-examination, Mr. Ferguson agreed
that the nearest street light was off when the shooting occurred.
Taneshia Lawrence was sitting with two friends outside the Rumba Room
nightclub in the early morning hours of August 12, 2013. While waiting for some others
to join them, she noticed a “greenish-silver” Pontiac Grand Am driving down South Main
Street with a black female driving, and she also noticed the victim walking down the
street. She saw the victim talking with a man who wore his hair in dreadlocks. She
turned to her friends and then heard a gunshot coming from the direction she had seen the
two men speaking. She looked down the street and saw the Pontiac speed away and turn
onto Pontotoc Street. Before the vehicle sped away, Ms. Lawrence observed the man
wearing his hair in dreadlocks “jump” in the back passenger side of the Pontiac. She also
saw two people, a male and a female, in the front seat of the Pontiac with the male now
driving.
Ms. Lawrence walked down the street and saw the victim lying on the ground.
She knelt down next to him and tried to comfort him. The victim did not say anything to
Ms. Lawrence but held her hand “extremely tight” and appeared to be trying to catch his
breath. Ms. Lawrence remained with the victim until the ambulance arrived and then
spoke with police providing a statement about what she had witnessed.
Sharae Robertson was at the Rumba Room in the early morning hours of August
12, 2013, and standing outside when she heard a gun fire. She then saw a “green”
Pontiac Grand Am speed down South Main Street and make a left on to Pontotoc Street.
She saw the “shadows” of the heads of three people in the Pontiac. Ms. Robertson
walked down the street and found the victim lying on the ground between a black truck
and a burgundy car. Ms. Robertson applied pressure to the victim’s chest wound and
attempted to comfort the victim along with Ms. Lawrence. Ms. Robertson remained with
the victim until the police arrived.
Ashton Britton, a Memphis Police Department (“MPD”) officer, heard the
dispatch providing a vehicle description linked to the shooting on South Main Street. He
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drove to the Foote Homes apartment complex to look for the vehicle matching the
description. As he drove around, he noticed a vehicle with the parking lights on. He
approached the vehicle, initially, to see if it had broken down. He did not see anyone in
the vehicle until he was “right up on the vehicle” and saw people “ducked down” inside.
He immediately drew his gun and ordered the occupants to sit up with their hands up. At
this point, Officer Britton realized that the car matched the description provided by
dispatch. The back seat passenger, the co-defendant, attempted to exit the vehicle, and
Officer Britton ordered him to remain in the car. The Defendant, who sat in the front
passenger seat, kept dropping his hands. On the third time he did so, Officer Britton
warned the Defendant that if he dropped his hands again, he would fire. The Defendant
complied. Officer Britton called for back-up and, once additional officers arrived, the
occupants, two males and one female, were taken into custody. During a search of the
vehicle, a gun was recovered from the floor by the front passenger seat where the
Defendant had been seated.
Marcus Berryman, an MPD officer, executed a search warrant on the Pontiac.
Inside the vehicle he recovered two cell phones, a gun with a magazine, a single live
round of ammunition found inside the chamber of the gun, and a ski mask. The magazine
contained thirty rounds of live ammunition.
Robert Wilkie, an MPD sergeant in the Homicide Bureau, interviewed the
Defendant on August 12, 2013, about the homicide of the victim. The Defendant signed
a waiver of his rights and agreed to speak with Sergeant Wilkie. The Defendant indicated
that he did not need glasses to read but that he did not read or write “well.” Sergeant
Wilkie provided the Defendant with a written copy of his rights but also read them to
him.
The Defendant told Sergeant Wilkie that he, Jerrica Norfleet, and the co-defendant
were out together and “then a bunch of bad stuff happened because he blank[ed] out.”
The Defendant did not disclose what the “bad stuff” was. The Defendant maintained that
he did not know what happened but said that he knew that “Jerrica wasn’t the killer and
that he wasn’t the killer.” When asked how he knew that neither he nor Jerrica was “the
killer,” he responded that he did not know.
During a break, Sergeant Wilkie spoke with the case coordinator who updated him
on new information learned through other witnesses. He confronted the Defendant with
the new information that indicated that the Defendant was present and active during the
shooting. The Defendant told Sergeant Wilkie that he remembered getting out of the car
when the co-defendant shot the victim. Sergeant Wilkie began interviewing the
Defendant at 9:40 a.m. on August 12, 2013, and at 1:00 p.m. they took a typed statement
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from him, with breaks throughout that time period. Sergeant Wilkie read the Defendant’s
responses:
Q. Are you aware that the Memphis Police Department is investigating
a homicide that happened on August 12, 2013 at 275 South Main
Street?
A. Yes.
Q. Are you the person responsible for this homicide?
A. No.
Q. Do you know who is responsible for this homicide?
A. Yes.
Q. Who’s responsible for this homicide?
A. Dondre Johnson.
Q. Who is Dondre Johnson to you?
A. My cousin.
Q. How do you know that Dondre Johnson is the person responsible?
A. I was there.
Q. Who else was present?
A. Jerrica Norfleet-Burns.
Q. Do you know [the victim]?
A. No.
Q. Have you ever seen him before this incident?
A. No.
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Q. What type of weapon was used in this shooting?
A. Nine-automatic, black, with an extended clip.
Q. Whose gun is it?
A. It’s mine.
Q. How long have you had the gun?
A. About two weeks.
Q. Where did you get it?
A. I found it in the dumpster out in Cordova, behind the liquor store.
Q. Who all was armed during this incident?
A. Just Dondre.
Q. Was anyone with [the victim]?
A. Nope.
Q. Explain how you and Dondre came to be together last night?
A. I was in Orange Mound and when I showed up to my mom’s house
Dondre was there. Dondre just show anytime he wants to.
Q. What time did you get to your mom’s house and how did you get
there?
A. I got to my mom’s house at 10:00 o’clock and Jerrica Norfleet, or
Burns, took me.
Q. Who is Jerrica Norfleet Burns, to you?
A. My friend.
Q. In your own words describe to me the events that took place, before,
during and after the incident on August 12, 2013 at 275 South Main?
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A. I pulled up to the house with Jerrica, my cousin Dondre was already
there. We sat on the porch and then we smoked and then I asked
Jerrica to take us to the store to get some money off of a card so we
could get some more weed. So we did that and we ended up riding
around downtown. That’s when I seen Mr. David and I asked him
for a light and he told me, “fuck you nigger” and I said, “fuck you”
back. So Mr. David pulled out his keys and started walking fast to
his car. Mr. David was already across the street when we turned left.
I was going to pull over, because I thought we were going to fist
fight. So me, Jerrica and Dondre pulled on the side of Mr. David, I
was driving. Dondre hopped out from the back seat and I hopped
out the front driver’s seat, that’s when I heard one gun shot. I seen
Mr. David on the ground, using his phone. Then Dondre jumped in
the back seat of the car and I jumped on top of Dondre while Jerrica
pulled off. Jerrica drove me and Dondre to Foote Homes and that’s
when the police pulled up and told us to put our hands up. I put my
hands up and I thought about running, but the police stopped me
when he pointed the gun at me. Backup police arrived and arrested
us and put us in three separate cars and brought us to down to 201
Poplar.
Q. Before the incident with David Santucci you and Dondre came
across a heavy set male, black, downtown, explain that?
A. I seen the heavy set black dude get out of the car and I said to
Dondre, “I wonder if he has some money?”
Q. Did either you or Dondre ever get out on this individual?
A. No.
Q. Was this right before you and Dondre saw David Santucci?
A. Not right before, but I would say about five minutes before.
Q. The mask that was found in Jerrica’s car, where did it come from?
A. It came from Orange Mound, it was in one of my friend’s old
backpack that I had put my shoes in and I had seen it.
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Q. Why did you give it to Dondre?
A. I didn’t give it to him, it was in the backpack and he went and got it
out of the backpack.
Q. Was anyone wearing the mask when David Santucci was
approached?
A. Nope, I didn’t see anyone with it on.
Q. What kind of car does Jerrica have that all three of you were riding
in?
A. Dark grey, Grand Pontiac.
Q. While riding around did you and Dondre discuss robbing anyone?
A. Nope, we didn’t discuss robbing anyone, we just talked about how to
get some money.
Q. Have you and Dondre ever talked about robbing someone?
A. No, we never talked about robbing someone, we just talked about
robbing.
Q. Did Jerrica know what your intentions were when you pulled up on
David Santucci?
A. No, my intentions was fighting, she didn’t know nothing.
Q. When you and Dondre got back in the vehicle, after you heard the
shot, what did Dondre say?
A. He didn’t say nothing, it wasn’t nothing personal, he didn’t know
him.
Q. Have you and Dondre ever done anything like this before?
A. Nope.
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Q. How did the gun get under the front seat where you were sitting at in
the car?
A. I took it from Dondre when I crawled to the front seat from the back.
Q. Did Dondre have any pictures made with the cell phone, prior to
making contact with David Santucci?
A. Yes.
Q. Who took the picture?
A. Jerrica, with her cell phone.
Q. Are you or Dondre gang affiliated?
A. Yes, I’m Blood and I don’t know if Dondre is affiliated.
Q. Who had the gun when the police showed up?
A. I did.
Q. Why?
A. Because I took it from Dondre, I took it from him because I was mad
that he shot dude.
Q. Were any demands made to David Santucci?
A. No.
Q. Why did you admit to being responsible for this incident involving
David Santucci to the police officer on the scene of your arrest?
A. Because I didn’t know Mr. David was dead and I didn’t want to see
my little cousin or Jerrica get in trouble because of that.
Q. Is there anything you would care to add to your statement that you
feel might aid us in this investigation?
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A. I just want to say I’m sorry that it happened like that, because he
wasn’t supposed to get shot and if I could take it back, I would.
Sergeant Wilkie testified that in his experience as a police officer he has come to
understand the term “lick” to mean a robbery.
On cross-examination, Sergeant Wilkie testified that the Defendant’s interview
began at 9:39 a.m. He confirmed that at the beginning of the Defendant’s interview, the
Defendant disclosed that he had used marijuana at 9:30 p.m. the previous night and taken
a prescribed two-milligram Xanax pill the day before. The Defendant stated that he took
the Xanax because he had been diagnosed paranoid schizophrenic.
Sergeant Wilkie confirmed that he interviewed Jerrica Norfleet before he
interviewed the Defendant. Based upon the information from both interviews, Sergeant
Wilkie learned that Ms. Norfleet had taken a picture of the co-defendant with her cell
phone before the shooting. The photograph is part of the record, and in the photograph,
the co-defendant is wearing a ski mask and holding a handgun. He agreed that he did not
recover any photographs of the Defendant wearing a ski mask or holding a handgun.
On redirect examination, Sergeant Wilkie testified that the Defendant was driving
the Pontiac and stopped when the victim was “trying to walk away, fast.” He further
confirmed that it was the Defendant and the co-defendant who talked about a robbery and
it was the Defendant’s ski mask and handgun.
Jerrica Norfleet testified that on August 12, 2013, she had been dating the
Defendant for a few months. She had met the Defendant in high school and knew the co-
defendant because he was the Defendant’s cousin. She recalled that on August 12, 2013,
the Defendant sent her a text asking her to give him a ride home. Ms. Norfleet agreed
and drove the Defendant home. When they arrived, the co-defendant was sitting on the
porch waiting for the Defendant. The Defendant asked Ms. Norfleet to go inside the
house while he and the co-defendant spoke on the porch. She estimated that the two men
remained outside for fifteen or twenty minutes while she watched television. When the
two men came inside, the Defendant asked Ms. Norfleet if she would wait for him at the
house while he and the co-defendant walked “somewhere.” She agreed and the two men
were gone for about thirty minutes.
When the Defendant and the co-defendant returned, they ate and played dominoes.
After awhile, the Defendant asked Ms. Norfleet to drive them to the store. The
Defendant and co-defendant went into the “corner store” and purchased a “black and
mild.” The group then drove around while the Defendant and co-defendant took turns
using the Defendant’s phone to call different people to find out about “a lick.” Ms.
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Norfleet said that at the time she did not know what “a lick” was but that she now
understood that term to reference a robbery. At some point, Ms. Norfleet became
frustrated with driving aimlessly around and asked the Defendant to drive. The
Defendant got into the driver’s seat, and Ms. Norfleet sat in the front passenger seat while
the co-defendant remained in the back seat positioned behind the driver’s seat.
As they drove around, Ms. Norfleet saw the Defendant hand a gun to the co-
defendant. Ms. Norfleet had seen the Defendant with a gun before but not the gun she
saw that night. The co-defendant asked Ms. Norfleet for her cell phone, and she declined
to give it to him but instead took a photograph of the co-defendant as the Defendant
drove around. Ms. Norfleet identified the photograph she took of the co-defendant
wearing a ski mask and holding the gun.
By this point, the Defendant was driving downtown, and the Defendant and co-
defendant were discussing potential victims on the street. Ms. Norfleet recalled seeing an
older couple and the Defendant’s saying, “I bet they got some money.” The couple,
however, was in the midst “of a crowd,” so they were passed by. Ms. Norfleet became
suspicious of the Defendant and co-defendant’s behavior and asked “What ya’ll got going
on?” Her question came “too late,” however, because the Defendant turned the corner
where the victim was standing.
The victim was identified as someone who “got some money” because “he looked
as if he was frightened, . . . so he started to speed up with his walk.” The Defendant
turned the car left, and the co-defendant got out. The Defendant finished parking the car
and then got out of the car. Both the Defendant and co-defendant were approaching the
victim when the victim yelled, “Get the f**k out of here.” The co-defendant responded,
“What do you mean, get the f**k out of here?” and then he fired the gun. Ms. Norfleet
“panicked” and moved into the driver’s seat to speed away. She said that she intended to
leave the men behind, but the Defendant and co-defendant both “jumped into the
backseat.” Ms. Norfleet made a “quick left” onto Pontotoc Street from South Main
Street. The Defendant directed Ms. Norfleet to the Foote Homes area.
Ms. Norfleet testified about the conversation in the car following the shooting as
“a lot of rage.” She said that the co-defendant stated, “That MF’r, hollered, get the f**k
out of here, I should of shot that n***er three more times.” The Defendant responded,
“We didn’t even get s**t off of him.” The Defendant instructed Ms. Norfleet to back into
an area, park, and turn off the lights. She tried to do so, but apparently the parking lights
remained on. The Defendant climbed back into the front seat and told the co-defendant
to give him the gun. As they sat in the dark car, the two men said that the “police [were]
going to flood the area” so to “sit still” and “hopefully it [would] clear soon.”
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A police car turned into the apartment complex, and the officer parked his car in
front of the Pontiac. The police officer approached the car and saw Ms. Norfleet, the
Defendant, and the co-defendant “slumped down” and ordered them to sit up and get
their hands up. At this point, the Defendant told the co-defendant to try to run. The two
began arguing because the co-defendant was afraid he would be shot. Ms. Norfleet
recalled that the police officer was “basically, frightened, not knowing what was going
on, because he saw them trying to get out of the car. He told us that if he [moved], he
would put a bullet in all our heads. And because I was scared, I told [the Defendant] to
just, please let him do what he had to do.” Additional police officers arrived, and all
three were taken into custody.
Ms. Norfleet agreed that she had not been indicted for facilitation of first degree
murder.
Erica Curry, a medical examiner, testified as an expert witness in the field of
forensic pathology. Dr. Curry performed the autopsy on the victim. During the
examination, Dr. Curry observed an entrance wound on the left side of the victim’s heart.
The bullet traveled through the victim’s aorta, diaphragm, liver, stomach, kidney and
exited on the right side of the victim’s back. The toxicology report indicated the presence
of alcohol and marijuana metabolites in the victim’s system. Based upon the
examination, Dr. Curry determined that the cause of death was the gunshot wound to the
victim’s chest and that the manner of death was homicide.
Eric Warren, a Tennessee Bureau of Investigation forensic scientist, testified as an
expert witness in the field of firearms identification. Special Agent Warren was provided
with a firearm, a magazine, several cartridges, one cartridge case, and one bullet
recovered during the course of the investigation. His findings were that the cartridge case
and the bullet recovered at the crime scene had been fired from the Defendant’s gun.
After hearing the evidence, the jury convicted the Defendant of first degree felony
murder, and the trial court imposed a mandatory life sentence. It is from this judgment
that the Defendant appeals.
II. Analysis
On appeal, the Defendant asserts that the evidence is insufficient. He argues that
the State failed to prove that he intentionally engaged in or intended to commit a robbery.
The State responds that there was sufficient evidence to support the Defendant’s
conviction for felony murder. We agree with the State.
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When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “The standard of review [for sufficiency of the evidence] ‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973). The Tennessee Supreme
Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).
As it relates to this case, felony murder is “[a] killing of another committed in the
perpetration of or attempt to perpetrate . . . robbery.” T.C.A. § 39-13-202(a)(2) (2014).
The mental state required for the conviction was that the Defendant possessed the intent
to commit the underlying offense, which in this case was the robbery. Robbery is “the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” T.C.A. § 39-13-202(b); § 39-13-401.
The evidence, viewed in the light most favorable to the State, proves that the
Defendant planned and attempted to execute the robbery of the victim. The Defendant
left his home that night to get money for “more weed.” The Defendant and co-defendant,
while armed, drove around Memphis searching for a possible victim. The Defendant and
co-defendant discussed a robbery, and the Defendant called people on his cell phone
asking about potential “licks.” The Defendant used Ms. Norfleet’s vehicle to drive to the
downtown area where they found the victim and to flee the scene following the attempted
robbery. The Defendant stopped the car near the victim, who was attempting to quickly
walk away. The co-defendant, armed with the Defendant’s gun, and the Defendant exited
the vehicle, and the co-defendant shot and killed the victim. This is sufficient evidence
upon which a jury could find beyond a reasonable doubt that the Defendant attempted to
rob the victim with a gun and as a result, the victim was killed.
We conclude that during the course of the attempted robbery, the victim was shot
and killed. The Defendant possessed the intent to commit the underlying offense, the
robbery, and the victim was killed during the perpetration of the attempted robbery.
Accordingly, we conclude the evidence is sufficient to support the jury’s finding that the
Defendant was guilty beyond a reasonable doubt of first degree murder in the
perpetration of an attempted robbery. As such, the Defendant is not entitled to relief on
this issue.
III. Conclusion
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In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.
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ROBERT W. WEDEMEYER, JUDGE
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