STATE OF TENNESSEE v. RONALD D. MCCALLUM, JR. ( 2021 )

01/28/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 13, 2020
STATE OF TENNESSEE v. RONALD D. McCALLUM, JR.
Appeal from the Criminal Court for Davidson County
No. 2016-B-2336 Angelita Blackshear Dalton, Judge
No. M2019-02287-CCA-R3-CD
The Defendant, Ronald D. McCallum, Jr., was convicted by a Davidson County Criminal
Court jury of two counts of aggravated robbery, a Class B felony, and vandalism, a Class
A misdemeanor. See T.C.A. § 39-13-402 (2018) (aggravated robbery); § 39-14-408 (2018)
(vandalism); § 39-14-105 (2018) (grading for vandalism). The trial court sentenced the
Defendant as a Range I, standard offender to ten years’ confinement at 85% service for
each aggravated robbery conviction and to eleven months, twenty-nine days for the
vandalism conviction. The court imposed partial consecutive service, for an effective
twenty-year sentence at 85% service. On appeal, the Defendant contends that the
prosecutor engaged in misconduct during her closing argument. 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 JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.
Jay Umerley (on appeal) and Kyle Parks (at trial), Nashville, Tennessee, for the appellant,
Ronald D. McCallum, Jr.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; Glenn Funk, District Attorney General; and Amy Hunter and Addie
Askew, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case relates to the armed robberies of Selvin Perdomo and Famara Diedhiou
and to the failed attempt to break into an automated teller machine (ATM). The Defendant
and two codefendants, Paige Hammonds and Brennan Lee, were charged in connection
with the offenses, and the Defendant and codefendant Lee were tried jointly.
At the trial, Joseph Ward testified that on June 22, 2016, at 5:00 a.m., he left home
to play hockey at the Ford Ice Center but stopped at Regions Bank to deposit money at the
ATM. He said that another car was at the ATM when he arrived, that he pulled over and
waited, that he saw two African-American men standing outside of the car, and that the
men got in the car when the men noticed him. Mr. Ward described the car as a black sedan
and recalled that the men wore red bandanas and baseball caps. Mr. Ward said that the
black sedan drove away, that he drove up to the ATM, and that he noticed it was damaged
and that debris was on the ground. As Mr. Ward attempted to follow the sedan to obtain a
license plate number, the driver of the sedan had “turned the car around . . . nose-to-nose
and had [him] boxed in.” However, Mr. Ward was able to drive around the sedan and get
away without further incident. Mr. Ward was unable to identify the men.
Selvin Perdomo testified that on June 22, 2016, at 5:00 a.m., he left his apartment
to go to work. Mr. Perdomo started his car. As he leaned over the trunk dealing with tools,
a dark-colored, four-door sedan stopped, and two men left the car. Mr. Perdomo said that
one of the men pointed a firearm at his face and that the other man slapped him and asked
for his money. Mr. Perdomo described the men as tall African-American men, who had
their faces covered with bandanas. When Mr. Perdomo did not produce enough money,
one of the men turned off the engine of Mr. Perdomo’s car and searched inside for
additional money. The men took Mr. Perdomo’s cell phone and wallet, which contained
about $235, threw Mr. Perdomo’s car keys into the parking lot, and left. The man who
held the gun took Mr. Perdomo’s wallet. Mr. Perdomo said that the men drove toward
another apartment building and that after he retrieved his car keys, he heard someone
scream. Mr. Perdomo’s jaw hurt for three days after being struck. Mr. Perdomo said that
about two or three minutes before the robbery, he heard gunshots while he prepared his
morning coffee. The Regions Bank location at which Mr. Ward had been was near Mr.
Perdomo’s apartment complex. Mr. Perdomo could not identify the perpetrators.
Famara Diedhiou testified that on June 22, 2016, around 6:00 a.m., he was outside
his apartment cleaning out the trunk of his car. Other evidence showed that Mr. Diedhiou
and Mr. Perdomo lived at the same apartment complex. Mr. Diedhiou heard four or five
gunshots. About fifteen minutes later, two men approached Mr. Diedhiou, pointed a gun
at Mr. Diedhiou’s stomach, and demanded “everything you have.” The men punched Mr.
Diedhiou on the head, Mr. Diedhiou fell, and the men kicked Mr. Diedhiou. While on the
ground, the men searched Mr. Diedhiou’s pants pockets and took a cell phone. The men,
likewise, searched Mr. Diedhiou’s car. Mr. Diedhiou said that the man with the gun wore
a white shirt, black pants, and red shoes. Both men wore face coverings, and they left
behind a cell phone. Other evidence showed that the phone left behind belonged to Mr.
Perdomo. Sometime after the robbery, Mr. Diedhiou saw a television news report about
the incident at Regions Bank. Mr. Diedhiou said that the men featured in the news report
were the same men who robbed him because the men wore the same clothes and bandanas.
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Judy West, her mother, and her daughter, Kayla Evans, lived at the apartment
complex where the robberies occurred. On June 22, 2016, at 5:30 a.m., Ms. West saw a
news report about the ATM vandalism and noticed that the car described in the report
looked like her mother’s car, which at the time was a Chevy Cruze. Ms. West noticed that
the car was not in the parking lot but that the car “came pulling up,” along with a second
car, around 6:00 or 6:30 a.m. Ms. West saw two men get out of her mother’s car, remove
items from the car, and place items in the woods in front of her apartment. She saw the
two men throw a license plate into the dumpster and leave in the second car. She could not
identify the men. Ms. West learned later that Ms. Evans had loaned the car to one of the
men.
Kayla Evans testified that on June 21, 2016, the Defendant asked to borrow the
Chevy Cruze she shared with her grandmother. The Defendant, codefendant Lee, and
codefendant Hammonds picked up the car between 1:00 and 2:00 a.m. She received a
telephone call from one of the men just before the car was returned. She went to the parking
lot to retrieve the keys, and codefendant Hammonds gave them to her. The Defendant,
codefendant Lee, and codefendant Hammonds retrieved items from the car and left in a
separate car. Ms. Evans later found a crowbar, a license plate, a wallet, and water bottles
inside her car, and she placed the items in the dumpster outside of her apartment.
Metropolitan Nashville Police Officer Steven Jones collected fingerprint evidence
and took photographs at the robbery scenes. At Regions Bank, the front of the ATM had
been torn off, and it had been shot with a shotgun. A crowbar was found, along with fired
and unfired shotgun shell casings. The video camera inside the ATM was not damaged.
Officer Jones photographed injuries sustained by the robbery victims. The collection of
fingerprint evidence at the ATM was not possible because the surveillance recording
showed that the perpetrators wore gloves.
Metropolitan Nashville Police Officer Kayla Fulton collected evidence from a dark
blue Chevy Cruze, which was found one day after the robberies and the vandalism. The
car was likewise processed for the presence of DNA and fingerprint evidence. She
collected evidence found in “a woodline across the way from” the car and from the
surrounding area. The evidence collected included two black fabric gloves, a solo cup,
paperwork, a pack of gum, four bandanas, a proof of insurance card belonging to Mr.
Diedhiou, and a plastic wrapper that had previously contained bandanas. She also collected
evidence from a nearby dumpster, which contained two plastic bags. Inside the bags were
an empty box of twelve-gauge shotgun shells, a cigarette butt, a torn Tylenol wrapper, two
Walmart receipts, a Tennessee license plate reflecting number U3807N, a crowbar, an
electronic “car adapter” cord, five empty water bottles, an empty pack of cigarettes, two
compression sleeves, and a wallet containing Mr. Perdomo’s identification.
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Codefendant Paige Hammonds testified that he knew the Defendant and
codefendant Lee. On June 22, 2016, codefendant Hammonds borrowed a dark blue Chevy
Cruze from Ms. Evans. Two people were with codefendant Hammonds. Initially, he said
he had forgotten the names of the people who were with him but later said the two people
had been murdered. He said he was under the influence of Xanax when he spoke to the
investigating police officers, although he recalled speaking to them about the vandalism
and the two robberies. Later, codefendant Hammonds testified that he, the Defendant, and
codefendant Lee were involved with these incidents and that a shotgun was used against
the ATM. Codefendant Hammonds said it was his idea to vandalize the ATM. He did not
recall telling the police that “it [was] a hostage situation,” in which he went along with
what other people wanted. He said that he fired the gun at the ATM and did not recall
telling the police anything different. He denied that the Defendant and codefendant Lee
picked him up at 3:00 a.m. on July 22, 2016, that the Defendant was inside the car, and that
codefendant Lee drove the car. Codefendant Hammonds said that he robbed the victims at
gunpoint, that he punched one victim, and that the Defendant and codefendant Lee were
not with him. Codefendant Hammonds said that after he returned to Ms. Evans’s
apartment, he placed some things in the woodline area. He said, though, he lied to the
police when he stated that the Defendant and codefendant Lee were involved in the
robberies and the vandalism.
Codefendant Hammond’s police interview was played for the jury as a prior
inconsistent statement, in which he implicated the Defendant and codefendant Lee as
participants in the ATM vandalism and the two robberies. Codefendant Hammonds
identified himself in photographs taken from the ATM surveillance recording and stated
the vandalism occurred before the two robberies. Codefendant Hammonds provided
descriptions of the robbery victims.
Metropolitan Nashville Police Detective Brandon Dozier lead the investigation in
this case. Although the surveillance camera inside the ATM was not damaged and recorded
the vandalism, the machine was “severely damaged.” The recording was played for the
jury and showed a dark four-door Chevy Cruze approach the ATM at 5:21 a.m. The rear
passenger and front passenger left the car, and the driver threw two bags from the open
driver’s window. The driver pointed a shotgun at the ATM and fired four to five times,
and the two passengers attempted to pry open the ATM’s casing. All of the car’s occupants
were male, and they wore gloves and face coverings. The driver left the car and fired the
shotgun at the ATM, and the two passengers continued using an object to pry open the
ATM. After they were unsuccessful at gaining access to the ATM, the men left at 5:49
a.m. Other evidence showed that the license plate number on the car was registered to a
different car. Detective Dozier stated that the Regions Bank where the vandalism occurred
was located near the rear entrance of the apartment complex, that it would have taken
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seconds for the driver of the car at the ATM to drive to the location of the robberies, and
that the robberies occurred quickly.
Walmart receipts recovered from the dumpster outside of Ms. Evans’s apartment
were received as an exhibit and reflected purchases at 4:22 a.m. and 4:23 a.m. of gloves, a
duffle bag, and Dasani water. Surveillance recordings from Walmart reflected the
individuals who purchased the items. During her police interview, Ms. Evans identified
codefendant Hammonds and the Defendant in the Walmart recordings. Codefendant Lee
was not identified in the recordings. Other evidence showed that Walmart was about a
five-minute drive from Regions Bank and the apartment complex where the robberies
occurred.
Cell phone records belonging to the Defendant, codefendant Lee, and Ms. Evans
were received as an exhibit and reflected that the Defendant and Ms. Evans first
communicated around 12:10 a.m. on June 22, 2016. The records showed forty attempted
and completed calls from Ms. Evans’s phone to the Defendant’s phone. Likewise, the
records reflected five attempted and completed calls from the Defendant’s phone to Ms.
Evans’s phone. The records showed that codefendant Lee and Ms. Evans communicated
six times. Cell phone tower data showed that the Defendant’s and codefendant Lee’s
phones used towers near Regions Bank and the apartment complex at the time of the
offenses.
Fingerprint evidence reflected codefendant Hammond’s fingerprints on the clear
wrapper that previously contained bandanas. The Defendant was excluded as the
contributor of some fingerprints that were analyzed but could not be excluded as the
contributor of other fingerprints on the items submitted for analysis. DNA evidence
reflected that the Defendant’s DNA was found on the cigarette butt submitted for analysis.
Upon this evidence, the jury found the Defendant guilty of two counts of aggravated
robbery and misdemeanor vandalism. The trial court sentenced him to an effective twenty
years’ confinement at 85% service. This appeal followed.
The Defendant contends that the prosecutor committed misconduct during closing
argument. He argues that the prosecutor improperly expressed an opinion about the
Defendant’s identity as one of the perpetrators. The State responds that the Defendant has
waived appellate review by failing to object contemporaneously at the trial and,
alternatively, that the prosecutor did not engage in misconduct.
Closing argument is “a valuable privilege that should not be unduly restricted.”
Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001); see State v. Bane, 57 S.W.3d 411, 425
(Tenn. 2001); State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). However, closing
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argument “must be temperate, based upon the evidence introduced at trial, relevant to the
issues being tried, and not otherwise improper under the facts or law.” State v. Goltz, 111
S.W.3d 1, 5 (Tenn. Crim. App. 2003); see State v. Jordan, 325 S.W.3d 1, 64 (Tenn. 2010).
A trial court has significant discretion in controlling closing argument, and its decisions
relative to the contents of argument may only be reversed upon an abuse of discretion.
Terry, 46 S.W.3d at 156; Cauthern, 967 S.W.2d at 737; Smith v. State, 527 S.W.2d 737,
739 (Tenn. 1975).
Although an exhaustive list of the bounds of prosecutorial impropriety cannot be
defined, five general areas of prosecutorial misconduct have been recognized:
1. It is unprofessional conduct for the prosecutor intentionally to misstate the
evidence or mislead the jury as to the inferences it may draw.
2. It is unprofessional conduct for the prosecutor to express his personal
belief or opinion as to the truth or falsity of any testimony or evidence or the
guilt of the defendant. See State v. Thornton, 10 S.W.3d 229, 235 (Tenn.
Crim. App. 1999); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App.
1978); Tenn. Code of Prof’l Responsibility DR 7–106(c)(4).
3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury. See Cauthern, 967 S.W.2d at 737; State
v. Stephenson, 878 S.W.2d 530, 541 (Tenn. 1994).
4. The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader
than the guilt or innocence of the accused under the controlling law, or by
making predictions of the consequences of the jury’s verdict. See Cauthern,
967 S.W.2d at 737; State v. Keen, 926 S.W.2d 727, 736 (Tenn. 1994).
5. It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common public
knowledge.
Standards Relating To The Prosecution Function And The Defense Function
§§ 5.8–5.9 Commentary (ABA Project on Standards for Criminal Justice,
Approved Draft 1971).
Goltz, 111 S.W.3d at 6.
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If improper argument occurs, a new trial is required only if the argument affected
the outcome of the trial to a defendant’s prejudice. Bane, 57 S.W.3d at 425. In determining
whether prosecutorial misconduct affected the jury verdict to prejudice a defendant, this
court should consider the conduct in light and in context of the facts and circumstances of
the case, any curative measures taken by the trial court and the prosecutor, the prosecutor’s
intent in making the comment, the cumulative effect of the improper comment and any
additional errors, the strength or weakness of the case, whether the prosecutor’s comments
were lengthy and repeated or isolated, and whether the comments were in response to
defense counsel’s closing argument. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim.
App. 1976); see Goltz, 111 S.W.3d at 5-6.
The record reflects the following during the prosecutor’s closing argument
regarding the Defendant’s identity:
. . . I want to start with Ronald McCallum. The first thing that the State would
submit showed that this defendant, Ronald McCallum is the person who
committed the offense and it is the State’s position that the defendant is the
one who was wearing the black t-shirt in the Walmart video and who was
wearing the black hoodie in the Regions video.
We know that because of the testimony of or we know that this
defendant is involved because of the testimony of Kayla Evans. She has
known Ronald McCallum forever, sometimes she calls him G. Ronald,
sometimes she calls him G, and sometimes she just calls him Ronald, but she
has known him for a really long time and she testified that he called her the
night before all of this. He called her [in] the early morning hours that it
actually happened and he actually came to her house.
He is the one who along with Brennan Lee got the keys to her vehicle.
He is the one who left in her vehicle. He is the one who returned in her
vehicle and he is the one who texted her afterwards and had all of those text
messages that she showed to Detective Dozier about what is happening, are
you the one who told the police or something to that affect, so we know that
by her testimony.
We know that it was been this defendant who committed these
offenses, Ronald McCallum, because he is on the video purchasing the very
supplies that he used to conceal his, Brennan Lee’s, Paige Hammond’s
identity during this offense.
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The Defendant argues that the prosecutor improperly commented on his identity by
concluding that he was depicted in the Walmart surveillance recordings. He asserts that
the statement was prejudicial and that it was “solely the jury’s job to determine the identity
of someone in a photograph.” Although the Defendant raised this issue in his motion for
new trial, he concedes that he did not object contemporaneously during the closing
argument. See T.R.A.P. 36(a) (“Nothing in this rule shall be construed as requiring relief
be granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”). The State
contends that the Defendant has waived consideration of this issue because he failed to
object contemporaneously and, alternatively, that the prosecutor did not engage in
misconduct. The Defendant has not addressed the State’s waiver argument.
Any waiver notwithstanding, the Defendant is not entitled to relief because the
prosecutor did not engage in misconduct. The prosecutor’s statement about the
Defendant’s identity was based upon the surveillance recordings and Ms. Evans’s
testimony that the Defendant was depicted in the recordings. The prosecutor connected
additional evidence to argue the Defendant’s identity as a perpetrator had been established.
The prosecutor did not provide the jury with her personal opinion. Rather, she argued the
logical inferences to be drawn from the evidence.
In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.
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ROBERT H. MONTGOMERY, JR., JUDGE
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