State v. Robert Gamble ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE v. ROBERT GAMBLE
Direct Appeal from the Criminal Court for Shelby County
No. 97-07519,20,21 James C. Beasley, Jr., Judge
No. W1999-01016-CCA-R3-CD - Decided June 27, 2000
The Defendant, Robert Gamble, was indicted for two counts of robbery, one count of the
fraudulent use of a debit card, and one count of theft of property over $500. He was subsequently
tried by a jury in Shelby County and found guilty of all charges. The trial court sentenced him as
a career offender to an effective sentence of sixty-six years. In this appeal as of right, the Defendant
argues that the evidence was insufficient to support his convictions and that he was improperly
sentenced. We hold that the evidence presented at trial was sufficient to support the Defendant’s
convictions and that the Defendant was properly sentenced. Accordingly, we affirm the Defendant’s
convictions and his sentences.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed.
WELLES, J., delivered the opinion of the court, in which HAYES, J., and GLENN, J., joined.
A.C. Wharton, Public Defender, Memphis, Tennessee, Garland Erguden, Assistant Public
Defender, Memphis, Tennessee, for the appellant, Robert Gamble.
Paul G. Summers, Attorney General and Reporter, Tara B. Hinkle, Assistant Attorney General,
William L. Gibbons, District Attorney General, James M. Lammey, Assistant District Attorney
General, for the appellee, State of Tennessee
OPINION
In May 1997, the Shelby County Grand Jury indicted the Defendant, Robert Gamble, for two
counts of aggravated robbery, one count of the fraudulent use of a debit card, and one count of theft
of property over $500. A Shelby County jury found him guilty of all charges. After a sentencing
hearing, the trial court sentenced the Defendant as a career offender to six years for the fraudulent
use of a debit card, six years for theft of property, and thirty years for each count of aggravated
robbery. The trial court ordered that the sentences for fraudulent use of a debit card and theft of
property be served concurrently, but consecutive to the sentences for aggravated robbery. In
addition, the court ordered that the two sentences for aggravated robbery be served consecutively
to each other. The Defendant therefore received an effective sentence of sixty-six years.
Pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, the Defendant now
appeals. He presents the following two issues for our review: (1) whether the evidence presented
at trial was sufficient to support his convictions, and (2) whether his sentence is proper. We affirm
the judgment of the trial court.
On January 10, 1997, two masked men entered a Union Planters Bank on Lamar Avenue in
Memphis at approximately noon. Marpu Moulton, who was working as a teller at the “drive-thru”
window of the bank, testified that she heard one of her co-workers say, “oh my God,” and she turned
to see one of the men, who was holding a handgun, jump onto the teller line counter. She testified
that he told everyone to get on the floor, stating, “If you don’t get on the floor, I [will] shoot you.”
Moulton stated that the man then grabbed her by the arm and “threw” her to the other side of the
counter, where she laid on the floor. She reported that the man then rifled through her teller drawer
and took her purse before leaving. Later that day, she discovered that approximately $500 had been
removed from her bank account by way of her Automatic Teller Machine (ATM) card, which was
in her purse at the time it was stolen.
Pamela Townsend, another employee of Union Planters Bank, testified that she was also
working at the bank on the day of the robbery. She recalled that “two gentlemen enter[ed] the bank
with guns, demanding, shouting obscene words that we all get on the floor.” She testified that one
of the men “was holding the desk side officials [on the floor] on one end of the bank” while the other
man “jumped the counter and began getting money from the tellers.” After the men left, they
dropped a bag containing the stolen money outside the bank when a “dye pack” exploded inside the
bag. Townsend explained that a dye pack is a bank security measure and described it as a fake stack
of money with a detector hidden inside that releases red dye when transported through the bank door.
Townsend testified that approximately $6,500 stained with red dye was retrieved from the bag
abandoned by the robbers outside the bank. Townsend also introduced bank records showing
activity on Moulton’s ATM card following the robbery. She testified that Moulton’s ATM card was
used five times the day it was stolen and that the total amount taken from Moulton’s account was
$554.
Marquita Brownlee testified that she was using the ATM machine at the Union Planters Bank
on January 10, 1997 at the time of the robbery. She recalled that when she put her card in the ATM
machine, she heard a “commotion” behind her. When she turned around, she faced a man standing
behind her holding a gun and a white bag, who said, “bitch, turn back around.” She complied, and
he then left. She testified that the man got into a white Chevrolet Camaro Iroc Z-28 with another
person and drove away. Brownlee stated that although it was snowing on the day of the robbery and
snow covered part of the car’s license plate, she saw part of the tag number. She identified the
license plate as a Tennessee tag containing the numbers 667.
Sergeant David Roleson of the Memphis Police Department testified that he was assigned
to the Federal Bureau of Investigation (FBI) Safe Streets Task Force on January 10, 1997. He stated
-2-
that the task force was created to investigate bank robberies in Memphis and reported that he was
assigned to investigate the robbery at issue in this case. During his investigation, Sergeant Roleson
discovered three shoe prints on the bank counter. He had a crime scene officer photograph the prints
and then “lift[ed]” the prints from the counter. He reported that the prints were wet because of the
snow outside on the day of the robbery.
Gordon Neighbours, the senior fraud investigator for Union Planters Bank, stated that he was
called to the Union Planters Bank on Lamar Avenue on January 10, 1997. He testified that the
money recovered by the bank from the bag abandoned by the robbers was covered with red dye and
tear gas. Neighbours also testified that he put a “block” on Moulton’s ATM card, which had been
stolen during the robbery, and began to track where the card was being used. He stated that he
reviewed video surveillance tapes from the ATM machines where the card was used after the robbery
and took photographs from the surveillance tape of the man using the card. The photographs were
introduced and viewed by the jury.
Ed Eanes, an employee of First American Bank at the time of the robbery, testified that he
was contacted by Neighbours concerning ATM activity at his bank, one of the locations where
Moulton’s card was used after the robbery. He verified that he provided Neighbours with a video
surveillance tape of a transaction and the tape was introduced into evidence. He also verified that
Neighbours photographed the transaction using the surveillance tape.
Brian Grissom, a loss prevention officer for First Tennessee Bank, introduced records from
the bank’s ATM machines pertaining to the use of Moulton’s ATM card at a First Tennessee Bank.
Grissom verified that Moulton’s ATM card was used to access her account at two separate First
Tennessee Bank ATM machines on January 10, 1997. During the second transaction, which
occurred at 2:32 p.m., the card was confiscated. Grissom introduced video surveillance tapes and
photographs taken of these transactions.
Sergeant Roleson testified that he used the ATM photographs to target the Defendant as a
suspect for the crime. On cross-examination, he reported that he saw a woman in some of the ATM
photographs, whom he identified as Joy Rickman, one of the Defendant’s roommates. He stated that
he knew of three people living with the Defendant in a duplex at the time of the crime.
Gladys Marie Dawson, the Defendant’s aunt, identified the Defendant as the person captured
on film by the ATM surveillance cameras. She testified that at the time of the crime, the Defendant
was living with his girlfriend, Jackie Brown, Brown’s mother, Brown's aunt, and “a lot . . . more
people” at their home on Kimball. She stated that he also frequented a duplex on Eastport Cove
where his sister, Tiffany Dawson, lived. She reported that in addition to the Defendant and his sister,
a man named Carl Rickman, his sister, Joy Rickman, and often others as well lived in the duplex.
Sergeant Chad Golden of the Memphis Police Department testified that he was involved in
the Defendant’s arrest. He stated that at the time of his arrest, the Defendant was wearing a Nike
baseball cap with a “white swoosh emblem or logo on it” and a pair of gloves with a red dye stain
on the palm of one glove. Golden reported that police also searched the home where the Defendant
-3-
was reportedly living with his girlfriend at the time of his arrest. From the home, officers recovered
a gold necklace with a “Nike swoosh” medallion, which appeared to be identical to the necklace
worn by the suspect in the surveillance videos obtained from bank ATM machines.
Golden also reported that on January 1, 1997, he discovered a stolen, white Chevrolet
Camaro Iroc Z-28 parked in an apartment complex parking lot. He stated that the car matched the
description of the vehicle used in the robbery. Golden testified that the car was parked adjacent to
a concrete drainage ditch running behind the apartment complex and reported that there were
footprints in the snow leading from the car to the drainage ditch. Golden stated that the footprints
led in the direction of the duplex on Eastport Cove where the Defendant often stayed, which was
located a couple of blocks west, “down the drainage ditch,” of where the car was parked.
Joseph N. Rinehart of the FBI, assigned to the Memphis Safe Streets Task Force, testified
that he obtained consents to search both of the Defendant’s residences, the Eastport Cove duplex and
the house that the Defendant shared with his girlfriend and her family. Sergeant Mike Kitsmiller of
the Memphis Police Department, also assigned to the Safe Streets Task Force, testified that he
searched the Defendant’s Eastport Cove duplex. He reported that officers recovered from the
apartment a pair of shoes, a jacket with a “Nike swoosh” emblem on the back, and a ski mask.
Kitsmiller testified that the jacket appeared to be the same jacket worn by the suspect in the
surveillance videos from the ATM machines. In addition, Kitsmiller searched the Defendant’s home
on Kimball, from which officers recovered a baseball cap, a flannel shirt, a gold Nike medallion
necklace, and a pistol like the one carried by one of the bank robbers during the robbery.
Photographs that were introduced at trial revealed that one of the robbers wore a flannel shirt during
the crime.
Special Agent Linda Littlejohn of the Tennessee Bureau of Investigation Crime Laboratory
testified that she was a forensic scientist specializing in shoe print comparison, fiber comparisons,
and physical comparison. She compared the three shoe prints lifted from the bank counter to the pair
of shoes recovered from the Defendant’s duplex and concluded that the right shoe made one print
“to the exclusion of all others.” Special Agent Littlejohn explained that by this, she meant “that this
shoe and only this shoe could ha[ve] made [the] print based on the individual characteristic[s] . . .
found in the print corresponding to the individual characteristic[s] on . . . [the] right shoe.” She also
testified that the second print was consistent with the left shoe. She explained that the lack of
individual characteristics in the print precluded her from concluding with complete certainty that the
left shoe made the print; however, she maintained that either the left shoe or “another shoe exactly
like it” made the print. Finally, Littlejohn testified that the third print was consistent with the size,
shape, and tread design of the right shoe, but again she stated that based on the lack of individual
characteristics in the print, she could not determinatively say that the shoe made the print.
Special Agent John Canale of the FBI testified that he worked as a member of the Safe
Streets Task Force in Memphis at the time of the robbery. He stated that he interviewed the
Defendant on two occasions, January 16 and 17, 1997. He reported that during the first interview,
the Defendant told officers that he lived at both his girlfriend’s house and the duplex located on
Eastport Cove. During the second interview, the Defendant admitted that he was the person captured
-4-
on film by the surveillance cameras at the ATM machines. He also admitted that he had used
Moulton’s ATM card. However, he claimed to have obtained the card from his mother, whom he
said obtained it from her boyfriend.
James Jones, the head of maintenance for the Cottonwood Apartments in Memphis, testified
that he recovered a “large amount of purses, assorted papers, credit cards, billfolds and [a] handgun,”
which was loaded with three live rounds, from a dumpster at the apartment complex. He reported
the discovery to police, and Officer J.R. Hester of the Memphis Police Department responded to the
call. Hester testified that among the items he found Marpu Moulton’s checkbook, her Social
Security card, her “Discovery” checkbook, and other assorted papers and receipts belonging to
Moulton. Hester also testified concerning the distances between certain locations within his precinct
which were pertinent to the investigation of this case: He stated that the Union Planters Bank where
the robbery occurred was 1.9 miles from the Defendant’s Eastport Cove address and that two of the
ATM’s from which the suspect withdrew money using Moulton’s ATM card were within two and
a half miles of the Defendant’s Eastport Cove address.
Finally, Thomas Bailey, who owned a gun shop at the time of the robbery, testified that on
the evening of December 20, 1996, his shop was broken into, and several guns were stolen. One of
the stolen guns was the loaded pistol found in the dumpster at the Cottonwood Apartments. Another
of his stolen guns was the pistol recovered by police from the Defendant’s Kimball address
following the robbery.
I. SUFFICIENCY OF THE EVIDENCE
The Defendant first contends that evidence of his identity as the culprit is insufficient to
support the verdict beyond a reasonable doubt. He argues that no one present during the robbery
could identify either of the two robbers, that no witness recognized the pistol used during the
robbery, that no evidence or testimony connected the Defendant with the “getaway” car, and that
many items of evidence introduced at trial were recovered by police at residences which the
Defendant shared with numerous other people.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In
addition, because conviction by a trier of fact destroys the presumption of innocence and imposes
a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence
was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State
v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977)); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982);
Holt v. State, 357 S.W.2d 57, 61 (Tenn. 1962).
In its review of the evidence, an appellate court must afford the State “the strongest
legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
-5-
1978)). The court may not “re-weigh or re-evaluate the evidence” in the record below. Evans, 838
S.W.2d at 191 (citing Cabbage, 571 S.W.2d at 836). Likewise, should the reviewing court find
particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or
trial court judgment. Tuggle, 639 S.W.2d at 914. Furthermore,“[t]he question of appellant's identity
as the person who committed the offense [is] for the jury's determination, upon consideration of all
the competent proof.” State v. Shelley, 628 S.W.2d 436, 438 (Tenn. Crim. App. 1981).
In this case, despite the lack of eyewitness identification of the Defendant as the perpetrator
of the crime, the State presented a great deal of evidence linking the Defendant to the robbery. Not
only was the Defendant captured on film using Moulton’s stolen ATM card, but he admitted to
police that he used the card following the robbery. In addition, police found the “getaway” car,
which was identified by an eyewitness to the crime, in a parking lot near one of the Defendant’s
residences, and police found footprints leading from the car toward the Defendant’s home. From
the Defendant’s two residences, police recovered a pair of gloves, one of which was stained with red
dye like that used in the bank’s “dye packs”; a necklace which appeared to be the same necklace
worn by the suspect who used the stolen ATM card after the robbery; a baseball cap like that worn
by the suspect; a flannel shirt like that worn by one of the masked robbers, who were photographed
by bank surveillance cameras during the robbery; a jacket like that worn by one of the robbers; and
a pair of shoes that matched prints lifted from the bank counter. In addition, two stolen pistols were
found which had been taken from the same gun shop on the same night; police recovered one pistol
from the Defendant’s home and the other pistol from a dumpster where Moulton’s stolen purse and
other stolen items were found. We conclude that this is sufficient evidence from which the jury
could have adduced the Defendant’s guilt beyond a reasonable doubt. This issue is without merit.
II. SENTENCING
The Defendant next argues that the trial court improperly imposed consecutive sentences in
this case. He contends that the imposition of consecutive sentences does not reasonably relate to the
severity of the offenses in this case or to the necessity of protecting the public. We disagree.
When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).
When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn.
Code Ann. §§ 40-35-102, -103, -210.
-6-
If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
Tennessee Code Annotated § 40-35-115 provides that if a defendant is convicted of more
than one offense, the trial court may impose consecutive sentences if the court finds by a
preponderance of the evidence that:
(1) The defendant is a professional criminal who has knowingly devoted such
defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
...
(4) The defendant is a dangerous offender whose behavior indicates little or no
regard for human life, and no hesitation about committing a crime in which the risk
to human life is high;
...
(6) The defendant is sentenced for an offense committed while on probation . . . .
Tenn. Code Ann. § 40-35-115(a), (b)(1), (2), (4), (6). Furthermore, “the imposition of consecutive
sentences on an offender found to be a dangerous offender requires, in addition to the application
of general principles of sentencing, the finding that an extended sentence is necessary to protect the
public against further criminal conduct by the defendant and that the consecutive sentences must
reasonably relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933,
939 (Tenn. 1995).
We first note that because the trial judge in this case thoroughly considered all relevant facts,
circumstances, and sentencing principles, our review is de novo with a presumption of correctness.
In sentencing the Defendant, the trial judge noted that the Defendant had previously received “in
excess of six Class E or above felony convictions”1 and therefore determined that the Defendant was
a career offender. See Tenn. Code Ann. § 40-35-108(a), (b)(3). The trial judge also determined that
the Defendant had “an extensive history of criminal behavior and criminal convictions, in addition
to those necessary to make him a career offender.” Moreover, the trial court noted that the
Defendant was on parole at the time of the present offenses. The trial court further determined that
the Defendant was a dangerous offender, stating,
1
The trial judge noted that the Defendant had six prior aggravated robbery convictions, one
attempted aggravated robbery conviction, one reckless endangerment conviction, and a misdemeanor
conviction for possession of a weapon. The Defendant committed these crimes as a juvenile, but
was sentenced as an adult for each of the offenses. See Tenn. Code Ann. § 40-35-108(a), (b)(3).
-7-
the [D]efendant had no hesitation about committing a crime when the risk to human
life was high. I think, normally, that in an aggravated robbery, that would be . . .
part of the elements of the crime of aggravated robbery. However, in this case, . . .
the bank was full of customers . . . and the individual identified as Mr. Gamble . . .
leaped upon the counter brandishing a gun, leaped over the counter back behind the
tellers’ cages, and people were forced to the ground. . . . There was also testimony
that there were other individuals, customers in the bank, including a lady who had
her children with her during the time all this was occurring.
...
And couple that with the fact that [the Defendant] has numerous prior convictions for
aggravated robbery – he’s on parole for aggravated robbery when he commits this
offense – indicates to me that he has no fear. He has no concept or apprehension
about being caught, about committing a crime where he arms himself with a pistol,
and robs people. Now, on at least seven or eight occasions, he has armed himself
with a pistol to rob people. This Court finds he is a dangerous offender.
Finally, the trial judge determined that
confinement for an extended period of time is necessary to protect society. This
Court is satisfied that Mr. Gamble cannot live on the streets of free society without
committing violent offenses, as is indicated by his record. It’s obvious that
confinement, once before for aggravated robbery for a short period of time, in this
Court’s mind didn’t work, and society needs to be protected from Mr. Gamble.
And . . . that the aggregate length of the sentences, if consecutive sentencing
is ordered, reasonably relates to the severity of the offenses for which the
[D]efendant stands convicted. This Court feels that . . . the blazon nature of a bank
robbery, the fact that the numerous individuals who were present in the bank whose
lives were put in jeopardy and at risk indicates that Mr. Gamble needs to be
incarcerated for a long period of time.
We must agree with the findings of the trial court. The Defendant’s presentence report
reveals a lengthy prior record which is especially lengthy considering that the Defendant was twenty-
five years old at the time of sentencing. His record, which dates back to 1986 when the Defendant
was twelve years old, includes five convictions for aggravated robbery as well as five other felony
convictions as an adult, at least three “felony” adjudications as a juvenile, and other convictions and
juvenile adjudications. As the State points out, his record shows “a continuous criminal history.”
Moreover, by his own admission, the Defendant was on parole for armed robbery at the time he
committed his present offenses. We therefore conclude that imposition of consecutive sentences is
more than adequately supported by the record in this case.
Accordingly, the judgment of the trial court is affirmed in all respects.
-8-