State of Tennessee v. Delarris Jones a/k/a Cedrick Jones ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 12, 2016
STATE OF TENNESSEE v. DELARRIS JONES
a/k/a CEDRICK JONES
Appeal from the Criminal Court for Shelby County
No. 13-04830 James M. Lammey, Jr., Judge
No. W2015-01085-CCA-R3-CD - Filed June 6, 2016
The Defendant, Delarris Jones, also known as Cedrick Jones, was convicted by a Shelby
County Criminal Court jury of attempt to commit second degree murder, a Class B
felony; aggravated assault, a Class C felony; employing a firearm during commission of a
dangerous felony, a Class C felony; possessing a firearm as a person convicted of a
felony involving the use of violence, a Class C felony; and possessing a firearm as a
person convicted of a felony drug offense, a Class D felony. See T.C.A. §§ 39-13-
210(a)(1) (2014) (second degree murder); 39-13-102(a)(1)(iii) (Supp. 2011) (amended
2013, 2015) (aggravated assault); 39-17-1324 (2014) (employing a firearm during the
commission of a dangerous felony); 39-17-1307(b)(1)(A), (B) (Supp. 2012) (amended
2014) (felon in possession of a firearm); 39-12-101(a) (2014) (criminal attempt). The
Defendant received an effective forty-year sentence. On appeal, the Defendant contends
that the evidence is insufficient to support his convictions. We affirm the judgments of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL, P.J., and ALAN E. GLENN, J. joined.
Monica A. Timmerman (on appeal), Memphis, Tennessee; Stephen C. Bush, District
Public Defender; Sam Christian and Kathy Kent (at trial), Assistant Public Defenders, for
the appellant, Delarris Jones.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
This case arises from a May 5, 2013 incident in which Tyion Taylor was shot
while inside his home. At the trial, the victim testified that the Defendant was his former
coworker and that he considered the Defendant a friend. The victim said that the
Defendant had visited the victim‟s home on previous occasions and that they did not have
any disagreements. The victim stated that on May 5, 2013, the victim missed a telephone
call from the Defendant, that the victim returned the Defendant‟s call, and that the
Defendant asked to come to the victim‟s home. The victim said that he and the
Defendant communicated periodically and that the victim anticipated a normal, friendly
visit.
The victim testified that the Defendant arrived at his home, that they stood in the
kitchen and talked for ten or fifteen minutes, and that they did not drink alcohol or use
drugs. The victim said that although he smoked marijuana, he had not smoked it that
day. The victim stated that when he turned away from the Defendant and then turned
back, the Defendant had a small gray handgun pointed at him. The victim said he raised
his hands and said, “Man, whatever it is it‟s not worth it.” The victim said that the
Defendant told him, “Don‟t do it, Bro,” and that the victim was afraid.
The victim testified that the Defendant attempted to force the victim into the
bathroom, that the victim backed up toward the bathroom, and that the victim decided he
would not go into the bathroom because he did not know what the Defendant would do to
him. The victim said that he attempted to run into the bedroom, that the Defendant said,
“I said bathroom,” and that the victim heard a gunshot and felt a burning pain. The
victim stated that he fell on the floor, that he felt burning and wetness, that he saw blood
coming from his arm and on his shirt, and that when he turned over, he saw blood
flowing from his back. The victim had been shot through the arm and the bullet entered
his torso.
The victim testified he was not armed and denied “pull[ing] a gun on” the
Defendant. The victim denied the Defendant came to the victim‟s home to buy or sell
marijuana. The victim said that the marijuana present in the police photographs belonged
to him and that he was rolling marijuana cigarettes before the incident.
The victim testified that he was discharged from the hospital the same day as the
shooting, that his arm ached periodically, and that he had residual elbow pain. The
victim said that he identified the Defendant in a photograph lineup.
Photographs of the interior of the victim‟s home and the photograph lineup were
received as exhibits. The photograph lineup showed the victim‟s signature, the date, and
“This [is] Cedrick, he shot me,” written by the victim.
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On cross-examination, the victim testified that he met the Defendant between 2007
and 2010, that he and the Defendant were coworkers for about two weeks, and that after
the victim changed jobs, he and the Defendant remained friendly. The victim said that he
had visited the Defendant‟s home previously but had not met the Defendant‟s family.
The victim said that on the day of the shooting, the Defendant called the victim and asked
him where he was and for his address. The victim stated that he and the Defendant had
not spoken on the telephone the day before the shooting and that the Defendant had
visited him previously.
The victim testified that when the Defendant arrived, the victim met him outside
and “flagged him down” because the Defendant had passed the victim‟s home. The
victim said he and the Defendant walked inside together. The victim said that he and the
Defendant did not have a history of animosity and that they did not argue on the day of
the shooting. When asked whether the victim told the police that the Defendant tried to
rob him, the victim said he assumed the Defendant was trying to rob him because they
did not have any problems. The victim said that the Defendant‟s statement, “Don‟t make
me do it,” was a sign the Defendant intended to rob him. The victim stated that he did
not have anything valuable in the home. The victim said that he and the Defendant
discussed the victim‟s moving into a new home and that the Defendant said the victim
looked like he was “doing better” since the last time they met.
The victim testified that the Defendant paced between the back door and the
kitchen table where the victim stood and that the Defendant asked the victim whether he
was alone. The victim said that marijuana, rolling papers, his wallet, and his cell phone
were on the kitchen table. The victim said that he did not see the Defendant‟s gun when
the Defendant entered the home, that the victim first saw the gun in the Defendant‟s hand
when the victim turned around, and that the gun was only fired when he tried to run
away. The victim denied that he had a gun on the kitchen table and said he had not seen
the gun previously. The victim did not remember whether the Defendant wore a jacket or
removed the gun from his jacket.
The victim testified that the Defendant was between three and six feet in front of
him when the Defendant drew the gun. The victim acknowledged telling a police officer
that nothing had been taken. The victim said that the day after the shooting, he told
another police officer the only thing the Defendant could have taken was the marijuana.
The victim noted, though, that the marijuana remained on the table and the kitchen floor
after the shooting. The victim acknowledged his statement to police that the Defendant
“took a little marijuana” and shot the victim in order to rob him. The victim said that at
the time he spoke to the police, he did not know whether the Defendant took the
marijuana. The victim did not remember testifying at the preliminary hearing that the
Defendant did not say anything to him. The victim said that the Defendant did not take
his wallet and that the victim had picked up his wallet from the table and placed it in his
pocket before the shooting.
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The victim testified that he did not know how the marijuana fell on the kitchen
floor because the victim was not in the kitchen when he was shot. The victim did not
remember testifying at the preliminary hearing that the Defendant “must have thought I
was coming at him.” The victim read from his testimony that the Defendant never asked
him for anything while pointing the gun at him and that the Defendant told the victim to
go into the bathroom. The victim did not remember testifying that the Defendant thought
the victim was “fixing to try him.” The victim said that he was facing the Defendant
when he attempted to run into the bedroom and that the victim heard only one gunshot.
The victim said that he did not know how the plate shattered on the kitchen floor and that
the plate was on the table before the shooting.
The victim testified that after he was shot, he attempted to call 9-1-1, that his cell
phone did not work, that he panicked and went outside to take himself to the hospital, that
the bleeding had “kind of” stopped, that he called his girlfriend, and that she took him to
the hospital. The victim read from his previous testimony, which he did not recall, that
he called the police, that he was concerned the police would call an ambulance for which
the victim could not pay, that the victim did not have medical insurance, and that he
called his girlfriend and told her he had been shot and needed a doctor.
On redirect examination, the victim testified that about a minute passed from the
time the Defendant pulled out the gun and the victim ran into the bedroom. The victim
said that during this time, he told the Defendant, “Whatever it is, it ain‟t worth it[,]” and
that he did not know what the Defendant was going to do. The victim stated that he went
into his bathroom after the shooting, that he did not see the Defendant leave the home,
and that the victim did not threaten the Defendant.
Memphis Police Officer Adam Pickering testified that on May 5, 2013, he
processed the crime scene and collected “a projectile” from the hospital. A fired bullet
recovered from the victim and a cartridge casing were received as exhibits. Officer
Pickering stated that testing revealed the green leafy substance he collected to be 2.62
grams of marijuana.
On cross-examination, Officer Pickering testified that the officers searched the
kitchen and hallway and did a cursory examination of the remainder of the home, but that
he did not see anything which prompted him to search the remainder of the home. He did
not find a weapon.
The parties stipulated that the Defendant was convicted of a felony involving the
use of violence in 2011 and of a felony drug offense in 2008.
Memphis Police Officer Jeffery D. Arthur testified that on May 5, 2013, he went
to the Defendant‟s mother‟s home looking for the Defendant. The Defendant‟s mother
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signed a consent to search form. Officer Arthur discovered the Defendant hiding inside
the attic. Officer Arthur stated that he did not recover a weapon from the Defendant.
Upon this evidence, the Defendant was convicted of attempt to commit second
degree murder, aggravated assault, employing a firearm during commission of a
dangerous felony, and two counts of possessing a firearm as a convicted felon. This
appeal followed.
The Defendant contends that the evidence is insufficient to support his
convictions. As a preliminary matter, we note that appellate counsel stated the issue
presented as “[w]hether the evidence is sufficient to sustain convictions on all charges
against the defendant as charged in count one in the indictment[.]” Although counsel
appears to restrict the scope of review to Count 1, attempt to commit second degree
murder, she begins her argument as though she were contesting the sufficiency of all
counts: “In Defendant‟s case, particularly in regard to the offense of Criminal Attempt
Second Degree Murder, the evidence was insufficient to support a finding a [sic] guilt.”
Furthermore, counsel‟s sole argument analyzes the sufficiency of the evidence relative to
Count 1 without citation to the record and without referencing the Defendant‟s remaining
convictions. See T.R.A.P. 27(a)(7); see also Tenn. Ct. Crim. App. R. 10(b). Counsel‟s
argument in its entirety is as follows:
No evidence was presented at the trial that could lead a jury to believe that
Defendant intended to kill the victim or was attempting to kill the victim.
Additionally, Defendant willingly left the victim after shooting him only
once — a shot that was not fatal. Defendant had ample opportunity to kill
the victim if that was his intention, but chose not to. Without evidence of
Defendant‟s mental state, the evidence is insufficient to support a finding of
guilt by the jury.1
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, 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 State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
1
We note that the Defendant does not raise any issue regarding merger or double jeopardy relative to his
convictions. We decline, in our discretion, to address these issues on the basis of plain error.
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“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review „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)).
I
Attempt to Commit Second Degree Murder
The Defendant contends that the evidence is insufficient to support his conviction
for attempt to commit second degree murder, arguing that no proof of the Defendant‟s
intent to kill the victim was presented because the Defendant left after firing a single shot.
A defendant commits criminal attempt when he acts “with the kind of culpability
otherwise required for the offense . . . [and] [a]cts with intent to cause a result that is an
element of the offense, and believes the conduct will cause the result without further
conduct on the person‟s part[.]” T.C.A. § 39-12-101(a)(2). Second degree murder is
defined as a knowing killing of another. Id. § 39-13-210(a)(1); see id. § 39-11-
106(a)(20) (Supp. 2011) (amended 2014). Second degree murder is a result-of-conduct
offense. State v. Page, 81 S.W.3d 781, 787 (Tenn. Crim. App. 2002). Therefore, a
person acts knowingly “when the person is aware that the conduct is reasonably certain to
cause the result.” T.C.A. § 39-11-302(b) (2014). “[T]he „nature of the conduct‟ that
causes death is inconsequential.” Page, 81 S.W.3d at 787. Intent is shown if the
defendant acts with an awareness that his conduct is reasonably certain to cause the
victim‟s death. See id. at 790-93.
In the light most favorable to the State, the record reflects that the Defendant, the
victim‟s former coworker and friend, came to the victim‟s home and asked the victim
whether he was alone. Without a prior disagreement or provocation, the Defendant drew
a gun while the victim‟s back was turned and pointed it at the victim. The victim raised
his hands and told the Defendant, “[It] ain‟t worth it.” The Defendant ordered the victim
to go to the bathroom and shot the victim once when the victim did not comply with the
order. A rational jury could have found beyond a reasonable doubt that the Defendant
acted with an awareness that his conduct was reasonably certain to cause the victim‟s
death. The Defendant‟s shooting the victim was a substantial step toward killing the
victim, and the Defendant‟s firing a gun was an intentional act. The jury rejected the
Defendant‟s argument that he did not intend to kill the victim because he fled after
inflicting a non-fatal gunshot wound. No evidence suggested the Defendant knew the
wound was not fatal, and the Defendant did not attempt to render aid to the victim after
shooting him. We note that intent to kill may be shown by the use of a deadly weapon on
an unarmed victim, a lack of provocation by the victim, and the Defendant‟s failure to
render aid to the victim. See State v. Trusty, 326 S.W.3d 582, 595-96 (Tenn. Crim. App.
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2010) (concluding that factors weighing toward premeditation “include the use of a
deadly weapon on an unarmed victim; the lack of provocation on the part of the victim . .
. the defendant‟s failure to render aid to the victim”) (citing State v. Thacker, 164 S.W.3d
208, 222 (Tenn. 2005)); State v. Leach, 148 S.W.3d 42, 54 (Tenn. 2004); State v. Lewis,
36 S.W.3d 88, 96 (Tenn. Crim. App. 2000) (citations omitted)). We also note that the
Defendant‟s leaving the scene of a shooting and hiding in his mother‟s attic are
circumstantial evidence of guilt. See State v. Zagorski, 701 S.W.2d 808, 813 (Tenn.
1985) (“flight and attempts to evade arrest are relevant as circumstances from which,
when considered with other facts and circumstances in evidence, a jury can properly draw
an inference of guilt”); see also Dorantes, 331 S.W.3d at 388. The Defendant is not
entitled to relief on this basis.
II
Aggravated Assault
Aggravated assault, in relevant part, is a knowing or intentional assault in which a
person uses or displays a deadly weapon. T.C.A. § 39-13-102(a)(1)(A)(iii). An assault,
in relevant part, occurs when a person intentionally or knowingly causes bodily injury to
another. Id. § 39-13-101(a)(1) (2010) (amended 2013).
In the light most favorable to the State, the record reflects that the Defendant used
a gun to shoot the victim. A bullet fragment was recovered from the victim at the
hospital. Although the police did not recover a gun, the jury‟s verdict reflects it credited
the victim‟s testimony that the Defendant shot him. A rational jury could have found
beyond a reasonable doubt that the Defendant intentionally or knowingly used a gun to
cause bodily injury to the victim. The Defendant is not entitled to relief on this basis.
III
Employing a Firearm during the Commission of a Dangerous Felony
Tennessee Code Annotated section 39-17-1324(b)(1) proscribes employing a
firearm during the commission of a dangerous felony. Attempted second degree murder
is an enumerated dangerous felony. See id. § 39-17-1324(i)(1)(B).
As stated above, the evidence is sufficient to demonstrate the Defendant shot the
victim using a gun. The jury, by its verdict, credited the victim‟s testimony that the
Defendant shot him while attempting to kill him. A rational jury could have found
beyond a reasonable doubt that the Defendant employed a gun during the attempt to
commit second degree murder. The Defendant is not entitled to relief on this basis.
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IV
Possession of a Firearm by a Convicted Felon
Tennessee Code Annotated section 39-17-1307(b)(1) prohibits a person convicted
of certain felonies from possessing a firearm. In this case, the parties stipulated that the
Defendant had been convicted of two felonies, one involving the use of violence and the
other a drug offense. In the motion for a new trial, trial counsel argued that the evidence
was insufficient to establish the Defendant possessed a gun because no gun was
recovered by the police. The record reflects, though, that the victim saw the Defendant
holding a gun before shooting the victim. We conclude that the evidence is sufficient for
a rational jury to have found beyond a reasonable doubt the Defendant was a convicted
felon and that he possessed a gun. The Defendant is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.
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ROBERT H. MONTGOMERY, JR., JUDGE
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