State of Tennessee v. Emmanuel Wallace ( 2021 )

09/15/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 18, 2021 Session
STATE OF TENNESSEE v. EMMANUEL WALLACE
Appeal from the Circuit Court for Montgomery County
No. CC-15-CR-1209 Jill Bartee Ayers, Judge
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No. M2020-00484-CCA-R3-CD
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Emmanuel Wallace, Defendant, and co-defendant Joshua Aretz were indicted for their
roles in the shooting death of Savon Easterling in Clarksville in August of 2015. Defendant
was indicted for premeditated murder, felony murder, and aggravated robbery. Defendant
elected to proceed to trial. After the presentation of the proof, the trial court granted a
motion for judgment of acquittal with respect to the offense of aggravated robbery. The
trial court submitted the lesser-included offenses of attempted aggravated robbery,
attempted robbery, and attempted theft of property for the jury’s consideration. After
deliberating, the jury found Defendant guilty of second degree murder and felony murder
but not guilty of attempted aggravated robbery and all lesser included offenses. The trial
court sentenced Defendant to an effective life sentence after merging the convictions. After
the denial of a motion for new trial, Defendant appealed to this Court. On appeal,
Defendant argues that the jury’s verdict was inconsistent because he was found guilty of
felony murder and not guilty of the underlying felony. He also argues that the trial court
improperly responded to a jury question in violation of Tennessee Rule of Criminal
Procedure 30(c). After a thorough review of the record and the briefs, we determine that
Defendant is not entitled to relief. Consequently, the judgments of the trial court are
affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., J., joined. NORMA MCGEE OGLE, J., concurred in results only.
Adrienne Gilliam Fry, Clarksville, Tennessee, for the appellant, Emmanuel Wallace.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Robert Nash and
Arthur Bieber, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The victim, Savon Easterling, a Fort Campbell soldier, was dating Jayde Hodge at
the time of his death. Ms. Hodge started dating the victim while she was still dating co-
defendant Aretz. Ms. Hodge and co-defendant Aretz dated for three or four years. They
broke up about a month prior to the victim’s death after Ms. Hodge had an abortion without
co-defendant Aretz’s knowledge. Defendant and co-defendant Aretz were best friends.
Ms. Hodge was living with the victim when she and co-defendant Aretz ended their
relationship. After the breakup, co-defendant Aretz sent Ms. Hodge a threatening text
message a few weeks before the killing. In the text, he claimed he knew the victim’s
address and called him a “dead man.” Ms. Hodge told the victim about the text but told
him not to worry.
On August 9, 2015, the victim went to the grocery store. Ms. Hodge was at the
victim’s home when the victim returned from the store. She heard his keys “jingle” at the
front door. The next thing she heard was a series of gunshots and a “thud on the front
door.” When she opened the door, she discovered the victim lying on the ground bleeding.
Ms. Hodge did not see anyone outside. She called 911 and applied pressure to the victim’s
wounds.
By the time police and emergency medical personnel arrived, the victim was dead.
Officers Christopher Bailey and Detective Sunisa Hamilton were among the first to
respond to the call at the victim’s house. When they arrived, they found the deceased
victim on the ground outside the front door. He was holding a Glock 9-millimeter pistol
in his right hand. The pistol had a bullet in the chamber and was equipped with an extended
magazine.
During the investigation, police located four .380 caliber shell casings and six .40
caliber shell casings. There were no 9-millimeter shell casings found at the scene. Police
also recovered five bullets from the victim’s home and five bullet fragments from the scene.
All of the .40 caliber shell casings and bullets found at the scene were fired from the same
gun.
The medical examiner determined that the victim received two gunshot wounds.
The fatal wound, to the neck, was fired from a distance of two to three feet away at a
downward trajectory.
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Defendant and co-defendant Aretz were eventually arrested for their role in the
victim’s death. Defendant’s car was seized during the investigation. Inside the car, officers
discovered a black bag. The bag contained a pair of gloves, a black ski mask, a black and
gray hooded sweatshirt, a black and red t-shirt, and a black bandana. The right glove was
stained with blood that contained the victim’s DNA and the left glove was stained with
blood that contained DNA from Defendant.
Defendant was interviewed by the police. Defendant initially denied being in
Clarksville when the victim was murdered. After he was incarcerated, however, Defendant
told cellmate Joshua Bryan Johnson that he took part in the murder. According to Mr.
Johnson, Defendant told him that his intent was to rob someone for “rims and money” with
co-defendant Aretz. Once the men were on the way to Clarksville, co-defendant Aretz told
Defendant that “there was a soldier that was sleeping with his old lady and that he was
going to kill him.” Defendant and co-defendant Aretz went to the victim’s home.
Defendant was armed with a .380 caliber gun, and co-defendant Aretz was armed with a
.45 caliber gun. They waited for the victim outside the house. When he arrived, Defendant
ordered him to get on the ground. They “shot him ten times, five times a piece.”
Defendant told Mr. Johnson that he gave the .45 caliber gun to someone and that he
hid the .380 caliber gun in the woods. Officers were able to recover the .380 caliber gun
based on the information they received from Mr. Johnson. Ballistics testing revealed that
the .380 caliber shell casings and bullet fragments recovered at the scene were fired through
Defendant’s .380 caliber handgun.
Defendant eventually gave another recorded interview a few months later. As part
of this interview, he completed a statement. Part of the statement read as follows:
I went to Josh [Aretz’s] house . . . he told me that he got a robbery set-up. . .
. I didn’t know he wanted to kill this person that’s why I tagged along. . . .
He [the victim] turned around and it looked like he had a gun in his waistband
and was kin[d]a grab[bing] for it. [Co-defendant Aretz] was behind me and
started to fire [h]is .40. It shot like 3 times before I started to. I looked away
and I didn’t mean too. I didn’t want to do it at all. I’m sorry.
Defendant did not testify or present any proof.
At the conclusion of the State’s proof, Defendant made a motion for judgment of
acquittal. The trial court granted the motion in part, determining that the evidence was not
sufficient to establish aggravated robbery. However, the trial court determined that there
was sufficient evidence to submit the lesser-included offenses of attempted aggravated
robbery, attempted robbery, and attempted theft of property.
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During deliberation, the jury submitted a noted to the trial court, asking the
following:
The court has dismissed [C]ount 3 [aggravated robbery]. We the Jury agree
with the dismissal and do not want to bring it back into effect. Do we still
need to mark an item on the form[?]
On Count 3 [aggravated robbery] if we wish that it stays as dropped do we
need to consider in the document as not guilty[?]
Without objection from either party, the trial court submitted a typewritten instruction to
the jury. The instruction read:
The Court has dismissed the charge of aggravated robbery as indicted in
[C]ount three. However, as instructed, you are required to consider the
lesser[-]included offenses of attempted aggravated robbery, attempted
robbery, and attempted theft of property. You are required to complete the
verdict form for [C]ount three.
After deliberating, the jury found Defendant guilty of second degree murder and felony
murder but not guilty of any of the lesser-included offenses in Count 3.
Defendant filed a motion for new trial. In the motion, he argued that the evidence
was insufficient to sustain the conviction for felony murder because he was not found guilty
of the underlying felony. In an amended motion, Defendant argued that the trial court erred
by failing to answer the jury question in open court. The trial court held a hearing and
denied the motion for new trial. Defendant filed a timely notice of appeal. He raises the
same issues in this Court.
Analysis
First, Defendant argues that the evidence is insufficient to support the conviction
for felony murder because the jury found Defendant not guilty of the underlying felony,
aggravated robbery. Specifically, Defendant argues that second degree murder cannot be
used “as the elevation offense” for felony murder. In other words, because the jury found
Defendant not guilty of the underlying felony, his conviction for felony murder should be
reversed. The State disagrees, pointing out that Defendant is not entitled to relief because
of inconsistent verdicts.
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As relevant here, first-degree felony murder is “[a] killing of another committed in
the perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(2).
No culpable mental state is required for conviction of felony murder except the intent to
commit the underlying felony. Id. § 39-13-202(b). Robbery is defined as “the intentional
or knowing theft of property from the person of another by violence or putting the person
in fear.” Id. § 39-13-401(a). A robbery is aggravated when it is “[a]ccomplished with a
deadly weapon” or “[w]here the victim suffers serious bodily injury.” As pertinent here,
criminal attempt requires proof that a person “[a]cts with intent to complete a course of
action or cause a result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.” T.C.A. § 39-12-101(a)(3). Proof
of the intention to commit the underlying felony and at what point it existed is a question
of fact to be decided by the jury after consideration of all the facts and circumstances. State
v. Buggs, 995 S.W.2d 102, 107 (Tenn. 1999).
In a light most favorable to the State, the proof showed that Defendant and co-
defendant Aretz planned to go to Clarksville to rob the victim for “rims and money.” On
the way there, co-defendant Aretz informed Defendant that he wanted to kill the victim for
sleeping with his ex-girlfriend. They arrived at the victim’s house, waiting outside for the
victim to arrive, and shot the victim multiple times. Bullets and shell casings from
Defendant’s gun were found at the scene of the victim’s death. Defendant admitted that
he shot his weapon. Moreover, Defendant had a bag in his trunk with dark-colored clothing
and gloves. The gloves contained the blood of the victim. In our view, there was sufficient
evidence for the jury to convict Defendant of felony murder.
Defendant’s argument that the acquittal on the charge of attempted aggravated
robbery precluded the jury from finding him guilty of felony murder is flawed. The
Tennessee Supreme Court has clearly stated that a defendant is not entitled to relief on this
basis, explaining as follows:
Inconsistent verdicts on multiple charges against a single defendant
may take the form of an inconsistency between a conviction and an acquittal.
For instance, a defendant may be charged with committing both a felony
murder and the predicate felony. The jury then may convict the defendant of
the felony murder but acquit the defendant of the predicate felony. It is well-
settled under Tennessee law that the defendant is not entitled to relief from
the felony murder conviction in this situation as long as the evidence was
sufficient to support his murder conviction. See, e.g., State v. Shane Michael
Grogger, No. M2008-02015-CCA-R3-CD, 2009 WL 3832921, at *14, *17
(Tenn. Crim. App. Nov. 17, 2009), perm. app. denied (Tenn. Apr. 14, 2010);
State v. Tony Scott Walker, No. 02C01-9704-CC-00147, 1997 WL 746433,
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at *3-5 (Tenn. Crim. App. Dec. 3, 1997), perm. app. denied (Tenn. Sept. 21,
1998). Accord Wiggins v. State, 498 S.W.2d 92, 94 (Tenn. 1973) (“This
Court will not upset a seemingly inconsistent verdict by speculating as to the
jury’s reasoning if we are satisfied that the evidence establishes guilt of the
offense upon which the conviction was returned.”).
State v. Davis, 466 S.W.3d 49, 72 (Tenn. 2015). We have already determined that the
evidence was sufficient to support the felony murder conviction. Accordingly, Defendant
is not entitled to relief on this issue.
Jury Question
Next, Defendant contends that the trial court erred by responding to a jury question
without bringing the jury back into open court in violation of Tennessee Rule of Criminal
Procedure 30(c). The State argues that because the jury found Defendant not guilty of the
offenses related to the charge in question, any error was harmless.
As recounted in the factual background section above, during deliberation, the jury
submitted a question to the judge about the dismissal of Count 3. The trial court submitted
a typewritten response without bringing the jury back into open court. At the hearing on
the motion for new trial, the trial court acknowledged that an oral response was not
provided to the jury. The trial court stated on the record that its “practice” for a “simple
issue” was to “bring the attorneys back, [to] review the questions” and answers and “if
there’s no objection, then [the court] just submit[s] that back to the jury.” Neither
Defendant nor the State objected to the supplemental jury charge herein.
It is well-settled that a trial court may provide supplemental instructions in response
to jury questions. State v. Forbes, 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995). When
supplemental instructions are given by a trial court, the better practice is to admonish the
jury not to place undue emphasis on the supplemental instructions. Leach v. State, 552
S.W.2d 407, 408 (Tenn. Crim. App. 1977). However, the issue of whether the failure to
do so amounts to reversible error depends upon whether the omission might reasonably be
expected to prejudice the Defendant in light of the entire record. Id. (citing Burton v. State,
394 S.W.2d 873 (Tenn. 1965)).
Defendant argues that the trial court violated Rule 30 of the Tennessee Rules of
Criminal Procedure, which provides that jury instructions shall be reduced to writing for
the jury to have during deliberations and that the “written charge shall be read to the jury
and taken to the jury room by the jury when it retires to deliberate.” Tenn. R. Crim. P.
30(c) (emphasis added).
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Defendant cites this Court’s opinion in State v. Dylan Brewer, No. W2017-01725-
CCA-R3-CD, 2019 WL 1109917, at *1 (Tenn. Crim. App. March 11, 2019), no perm. app.
filed, to support his argument. In Dylan Brewer, a panel of this Court determined that the
trial court erred by failing to orally instruct the jury as to the definitions of intentionally
and knowingly. Even though the later supplemented written charge submitted to the jury
included the definitions, because Rule 30 requires jury instructions to be provided to the
jury both orally and in writing, the trial court erred. Id. at *7-8. While recognizing that
failure to properly instruct the jury on a material element of an offense is a non-structural,
constitutional error subject to harmless error review, in Dylan Brewer, we determined that
the error was not harmless because the charge “failed to fairly submit the legal issues to
the jury,” especially in a case where the proof was largely circumstantial. Id.
This case, in our view, is distinguishable from Dylan Brewer. In Dylan Brewer, the
jury instruction at issue, defining the mens rea of the offense, was completely omitted by
the trial court in the initial jury instructions. Here, the answer to the jury question instructed
the jury to follow the jury charge, which had already been read in open court and reduced
to writing as required by Rule 30. The trial court told the jury in its answer to consider the
lesser-included offenses submitted in Count 3 and to mark the verdict on the form, as it had
already been instructed. Moreover, in a footnote in Dylan Brewer, we acknowledged that:
Several unpublished opinions of this Court have indicated that Rule 30(c)’s
requirement that the trial court’s instructions shall be in writing does not
apply to supplemental instructions given in response to jury questions during
deliberation. See State v. Karen Marable, No. W2008-02191-CCA-R3-CD,
2010 WL 2553645, at *10 (Tenn. Crim. App. June 24, 2010) (citing State v.
John William Matkin III, No. E2005-02946-CCA-R3-CD, 2007 WL
4117362, at *8 (Tenn. Crim. App. Nov. 19, 2007), perm. app. denied (Tenn.
Apr. 7, 2008); State v. Tywan Faulk, No. M1999-01124-CCA-R3-CD, 2000
WL 1278375, at *7 (Tenn. Crim. App. Aug. 31, 2000), perm. app. dismissed
(Tenn. Nov. 28, 2000)), no perm. app. filed.
Id. at *5 n.4. These cases, like the case herein, involved instructions that “merely clarif[ied]
prior written instructions,” rather than instructions that were erroneously omitted from the
original charge. Karen Marable, 2010 WL 2553645, at *10; but see State v. Bowers, 77
S.W.3d 776, 791 (Tenn. Crim. App. 2001) (applying Rule 30(c) to supplemental
instruction); State v. Crocker, 697 S.W.2d 362, 365 (Tenn. Crim. App. 1985) (same). In
our view, there was no error because the supplemental written instruction merely clarified
the written charge, which had already been read aloud and submitted to the jury in writing.
Moreover, the jury ultimately acquitted Defendant of the charged offense about which he
complains on appeal. Consequently, he cannot prove prejudice as a result of the trial
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court’s failure to orally give the supplemental instruction. Defendant is not entitled to relief
on this issue.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
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TIMOTHY L. EASTER, JUDGE
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