State of Tennessee v. Darrell Braddock ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH SESSION , 1998 FILED
May 5, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707-CR-00279
) Cecil Crowson, Jr.
Appellee, ) Appellate C ourt Clerk
)
) SHELBY COUNTY
VS. )
) HON. CAROLYN WADE BLACKETT
DARRELL BRADDOCK, ) JUDGE
)
Appe llant. ) (Direct Appeal - First Degree Felony
) Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
JAMES BALL JOHN KNOX WALKUP
217 Exchange Attorney General and Reporter
Memphis, TN 38105
MARVIN E. CLEMENTS, JR.
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
PAUL GOODMAN
JANET SHIPMAN
Assistant District Attorn eys
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On Septem ber 12, 1 996, a S helby C ounty jury fo und Ap pellant, Darre ll E.
Braddock, guilty of first degree felony m urder , crimin al attem pt: to wit e spec ially
aggravated robbery, criminal a ttempt: to wit murder in the first degree, and two
counts of aggravated assault. Appellant appeals from his convictions, raising two
issues:
1) whether the evidence pre sented at trial was leg ally sufficient to support
the jury’s verdict; and
2) wheth er the tr ial cou rt erred in allowing the State, beca use o f the victim ’s
family’s feelings, to withdraw its offer of a plea bargain.
After a review of the record, the judgment of the trial court is affirmed.
FACTS
On January 12, 1994, at approximately 7:12 am, three armed masked men
entered Dan’s Big Star Grocery Store at 3237 Winchester, Memphis, Tennessee.
At the time the men entered, Robby Allen, Jr., Felicia Bailey, Janice Cox, A ngela
Adams, Malcolm Clark, and Johnny Russell, along with other employees of the
store, were inside the store. When Robby Allen, who was working in the store’s
office, saw a b lack ma le run acro ss the sto re with a gu n drawn , he reached for
his own gun. Before Mr. Allen could draw his gun, Michael Irvin jumped over the
partition between the office and the rest of the store and landed on Mr. Alle n’s
shoulder. Irvin was armed. Mr. A llen and Mr. Irvin struggle d for control of Mr.
Irvin’s weapon, in the p rocess the w eapon fired into the air.
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W hile Mr. Alle n and Mr. Irvin struggled, Appellant had run to cash register
number two where Felicia Bailey, a store employee, was standing. Appellant
pointed his gun at Ms. Bailey an d ordere d her to get down on the floor. Ms. Bailey
complied. Appellant then turned and pointed the gun at Malcolm Clark, who also
got down on the floor. Mr. Clark identified exhibit 15, a .380 caliber automati c
pistol taken from Appellant’s aunt’s home, as a weapon resembling the gun which
Appe llant pointe d in his face .
During the commotion, several shots were fired. One shot came from the
store floor. Another cam e from the gu n over which M r. Allen and Mr. Irvine
wrestled. In the strug gle over th e gun, M r. Irvin fell and Mr. Allen fell on top of
him. Mr. Allen reached for a pair of handcuffs that were in the office. As he was
doing so, a gun was extended over the wall into the office and fired into the back
of Mr. Allen’s neck, causing him to lose consciousness.
Once the commotion ceased, Ms. Cox jumped over the back wall of the
office and ran to a phone located in the rear of the store and called 911. Ms.
Adams also called 911 and pulled the store’s alarm.
Mr. Clark crawled along the floor toward the office. He sa w Joh nny R usse ll
lying on the floor with a large amount of blood on the floor aroun d him. Mr. Clark
retrieved Mr. Russell’s .357 Smith and Wesson pistol from the floor in front of Mr.
Russ ell’s body. Mr. Clark then climbed over the wall into the office and
handcuffed Mr. Irvin and also confiscated Mr. Irvin’s weapon, a .25 caliber
autom atic pistol. Mr. Clark picked up Mr. Alle n’s .380 caliber Bro wning pistol. Mr.
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Allen recovered consciousness and gave the store keys to Mr. Clark, who locked
the doors to the store.
Mr. Russell died as a result of a gunshot wound to his back. No bullet or
bullet fragments were found in his body. Mr. Allen was hospitalized for ten days,
recovering from the wound to his neck. A bullet was removed from his body. Mr.
Irvin died as a result of gu nshot wou nds from a .38 or a .357 ca liber revolver.
Appellant made a statement to Sergeant Tim othy C ook, o f the Me mph is
Police Depa rtment, w hich wa s introduc ed at trial. In the statement, Appellant
confessed to being involved in the attempted robbery of Da n’s Big Star G rocery.
Appellant said he used a black .380 pistol (introduced at trial as exhibit 15) which
belonged to his aun t. Appellan t also state d that Ca rlos Rice was the third
perpetrator in the robbery, and that he used a long-barreled revolver. Appellant
stated that he took th e revo lver from Mr. Ric e and threw it into a field. A Colt .38
revolver was loca ted by the police in the field indicate d by Ap pellant and was
introduced at trial as exhibit 23. Ap pellan t further stated that Mr . Rice to ld him
that Mr. Rice had shot the s tore m anag er in the back (referrin g to Mr . Russ ell)
because otherwise the manager would have shot him.
At trial Mr. Rice testified that he ha d plead guilty to murder in the
perpetration of a robbery and related charges arising out of the attempted
robbery of Dan’s Big Star. H e ackn owledg ed that he is currently s erving a life
sentence for those c rimes, b ut stated th at he is atte mpting to obtain p ost-
conviction relief from his plea. Mr. Rice testified that he did not have a gun during
the attempted robbery, and denied that he shot Mr. Russell. He said that he
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recognized the .380 automatic (exhibit 15) as Appellant’s aunt’s gun, but said that
Appellant used the .38 revolver (exhibit 23) during the robbery. He further testified
that Michael Irvin planned the robbery. He stated that the plan consisted of M r.
Irvin taking ca re of the pe ople in the office, he w as to be p ositioned at register
one and App ellant was to take re gister two. Mr. Rice testified that he did not
shoot Mr. Allen a nd did not see Appellant sho ot him either.
The State also presented evidence at trial that Appellant’s palm print was
on the car used to con vey the perpetra tors to and from Dan’s Big S tar. A Mr.
Steve Scott of the Tennessee Bureau of Investigation testified that he tested the
Colt. 38, the .25 caliber, the Browning .380 automatic, and the Smith and
Wesson .357 Magnum, and of those guns , the bullet which wa s taken from Mr.
Allen’s body could only have come from the .38 revolve r. He wa s unab le to state
conc lusively that the bullet did co me from that gun, b ut ruled ou t the poss ibility
that it came from one of the other guns found at the scene.
I. SUFFICIENCY OF THE EVIDENCE
Appellant conte nds th at the e videnc e pres ented at trial wa s not le gally
sufficient to support the conviction of criminal attempt: to wit murder in the first
degree. When an appellant challenges the sufficiency of the evidence, this Co urt
is obliged to review that ch alleng e acc ording to certa in well-settled principles . A
verdict of guilty by the jury, approved by the trial judge, accredits the testimony
of the State’s witnesses and re solves all conf licts in the testim ony in favor of the
State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839
S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a
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presumption of innocence, a jury verdict removes this presumption and replaces
it with one of guilt. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2). Hence,
on appeal, the burden of proof rests with Appellant to demonstrate the
insufficiency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to
the strongest legitimate view of the evidence as well as all reasonable and
legitimate inferences that m ay be drawn therefrom.” Id. (citing State v. Cabbage,
571 S.W.2d 832, 835 (T enn. 1 978)) . W here th e suffic iency o f the evid ence is
contested on appe al, the relevant question for the reviewing court is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v.
Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In
conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from
reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 1996 ); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not substitute its own inferences “for those
drawn by the tr ier of fact from circum stantial evidence.” Id. at 779. Finally, the
Tennessee Rules of App ellate P roced ure, R ule 13(e) provides, “findings 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 beyond a
reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.
At trial, the State presented the tes timon y of Ca rlos R ice, Ap pellan t’s
cous in and partner in this crime. Mr. Rice testified that he did not carry a gun on
the day of the attempted robbery, and that he did not shoot anyone. He also
stated that Appellant us ed a .38 caliber re volver during the rob bery. Expert
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ballistics testim ony revealed that a .38 ca liber bullet was recove red from M r.
Allen’s body.
The offense of first-degree murder, at the time of this crime, required a
showing of an inte ntiona l, premeditated and deliberate killing. Tenn. Code Ann.
§ 39-13-202 (1991). A premeditated act is “one done after the exercise of
reflection and judgm ent.” Tenn. C ode Ann . § 39-13-201 (b)(2) (1991).
Premeditation can be formed in an insta nt. State v. Brown, 836 S.W .2d 539
(Tenn. 1992). A deliberate act is “one performed with a cool purpose.” Tenn.
Code Ann. § 39-13-201(b)(1)(1991). Deliberation is present when the
circumstances suggest that the actor contemplated the manner and
consequences of his actions. State v. West, 844 S.W.2d 144, 147 (Ten n. 1992).
On appe llate review, questions of fact, contradictions in testimony, and the
credibility of witness es are left for the jury to resolve. Byrge v. S tate, 575 S.W.2d
292, 295 (Tenn. Crim. App. 1978). There is ample evidence to support the
conclu sion that appellant shot Mr. Allen as Allen got the better of one of
Appe llant’s compa triots during the robbery. Clearly, such a shooting was
deliberate and pre medita ted. This issue is with out me rit.
II. STATE ’S REF USAL TO O FFER PLEA B ARGAIN
Appellant also complains that the family of Johnny Russell blocked an offer
which the State had previously extended to Appellant regarding a plea
agreement. It is well-settled that even in the presence of an agreement, an
Appellant does not have an absolute right to have a plea bargain accepted.
Santo bello v. New York , 404 U.S. 257, 92 S.Ct. 495, 498, 30 L.Ed .2d 427 (197 1).
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There is also no obligation on the State to offer any benefit or advantage to a
defendant by reason of his pleading guilty, and aside from any agreement that
may exist between a defendant and the State in reference to the entry of the
guilty plea, the u ltimate de cision to accept or reject any such plea is to be made
by the trial court. William s v. State, 491 S.W.2d 862, 867 (Tenn. Crim. App.
1972). It is also well-settled th at any p lea ba rgain o ffer from the Sta te is
revoc able until it is accep ted by the trial court. See Mabry v. Johnson, 467 U.S.
504, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984). The ultimate decision whether
to accep t or reject a p articular ple a barga in agree ment re sts entirely with the trial
court. A prereq uisite to the e ffectivenes s and e nforcea bility of a plea agreement
is its approva l by the cou rt. State v. Todd, 654 S.W .2d 379, 382 (Tenn.19 83). In
the matte r sub ju dice, it a ppea rs that th e State and A ppella nt had enga ged in
plea negotiations, but had not formally entered a plea. Until such time as the trial
court acce pts the plea a greem ent, the State is free to rescind any offer it makes.
While withdrawing a plea bargain offer prior to its acceptance by the trial
court may be unacceptable if the withdrawal is premised on som e invidio us ba sis
such as race, gen der or religion, victim impact is not a prohibited basis for
withdraw ing an un approve d plea ba rgain offer. T his issue is without m erit.
According ly, for the aforemen tioned reason s, the judgme nt of the trial court
is affirmed.
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JERRY L. SMITH, JUDGE
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CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
GARY R. WADE, JUDGE
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