State of Tennessee v. Deangelo Taylor

06/16/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 7, 2017
STATE OF TENNESSEE v. DEANGELO TAYLOR
Appeal from the Criminal Court for Shelby County
No. 11-03335 W. Mark Ward, Judge
No. W2016-00718-CCA-R3-CD
The defendant, Deangelo Taylor, appeals his Shelby County Criminal Court jury
convictions of second degree murder and attempted aggravated robbery, claiming that the
trial court erred by admitting certain witness testimony and that the evidence was
insufficient to support his convictions. Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.
Joseph A. McClusky (on appeal) and Lauren Fuchs (at trial), Memphis, Tennessee, for
the appellant, Deangelo Taylor.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Tracye Jones and
Omar Malik, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
In May 2011, the Shelby County Grand Jury charged the defendant with
one count each of premeditated first degree murder, aggravated robbery, and employing a
firearm during the commission of a dangerous felony, arising out of the November 25,
2009 shooting death of the victim, Robert Williams. The trial court conducted a jury trial
in July 2015.
The State’s proof at trial showed that the victim and his roommate, Larry
Martin, shared an apartment in Memphis; two of the victim’s cousins and one of the
victim’s uncles lived there as well. Mr. Martin testified that, on the morning of
November 25, 2009, he saw the victim “counting money” although Mr. Martin did not
know the amount of the money. Sometime after that, the victim left the apartment and
drove away. Mr. Martin later looked out the front apartment window and saw the victim
standing near his vehicle; it appeared to Mr. Martin that the victim had just arrived home.
Mr. Martin noticed that two men were standing close to the victim and that a neighbor,
Wilbur Ruffin, was nearby working on his own vehicle. Mr. Martin stated that the faces
of the two men talking to the victim were obscured by “hoodies,” but he noticed that one
of the men was a few inches taller than the other man. While the victim was speaking
with the two men, Mr. Ruffin approached and joined the conversation, which lasted “less
than five minutes.” When the victim reentered the apartment, he “was mad . . . about
something.” Although Mr. Martin never saw any of the men with a gun and did not
witness a robbery, Mr. Martin testified that the victim told him that he had been robbed,
and he heard the victim say that “he needed some peace” and that “these Ns have me
messed up, F’d up.” Shortly thereafter, the victim left the apartment with his cousin,
Tony Winters.
Mr. Winters testified that on the evening of November 25, the victim asked
Mr. Winters “to come ride with him” because someone had robbed him. Mr. Winters
stated that the victim did not tell him where they were going; he just told Mr. Winters to
“come ride with him”:
We just went to riding and looking. He was looking for
someone. I don’t know who he was looking for. But then,
like, I guess when he saw that person whoever he saw, he was
flinching. I asked him who did he see. He ain’t said – he
ain’t say nothing so we just kept on riding. Then next thing I
know I heard gunshot[s] and I just ducked down in the car
and stayed down until the gunshot[s], you know, stopped.
But he kept looking up. And when the – that last time he
looked up, a bullet caught him in the head.
Mr. Winters estimated that he heard “about 11 or 12” gunshots. Mr. Winters never saw
the shooter, and he insisted that neither he nor the victim had a firearm with them that
night.
Wilbur Ruffin, the victim’s neighbor, testified that on the evening of
November 25, he was working on his vehicle just outside of his apartment when the
victim arrived at home, parking his car near Mr. Ruffin’s vehicle. Mr. Ruffin denied
speaking with the victim that evening or engaging in a conversation with anyone. Mr.
Ruffin stated that, approximately 20 minutes after the victim arrived, “two masked
gentlemen” wearing hooded shirts approached the victim, who was standing by the
driver’s side of his vehicle. Mr. Ruffin said that the two men “laid [the victim] on the
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ground” and “checked his pockets or something like that” before fleeing. Mr. Ruffin
stated that he “th[ought] he s[aw] a gun” on one of the two men who accosted the victim.
Mr. Ruffin could not recall whether one or both of the men rifled through the victim’s
pockets. Mr. Ruffin agreed that his memory had “become a little fuzzy” in the
intervening years, and the prosecutor presented Mr. Ruffin with the statement he gave to
police officers on January 27, 2010, in an effort to refresh his recollection. After
reviewing the four-page statement, Mr. Ruffin testified that “most of [the statement was]
untrue” and that he did not recall making any of the statements contained therein.
Mr. Ruffin testified that he first spoke with police officers on November 30
and that he told the officers at that time that he “didn’t see nothing.” On January 5, 2010,
Mr. Ruffin was brought into the police station to view a photographic lineup of potential
suspects. Mr. Ruffin stated that the officers were “yelling” at him, telling him what to
say, and behaving as if “they already kn[e]w who did it.” When Mr. Ruffin was again
brought to the police station on January 26, officers were attempting to “pin” a recent
robbery on Mr. Ruffin “if [he] didn’t tell them something just in the[ir] exact words.”
Mr. Ruffin told the officers that “[w]hatever [they] put down there [he’ll] sign it” because
he “just want[ed] to go home.” With respect to the written statement he provided on
January 27, Mr. Ruffin stated that he told the officers that the defendant had robbed the
victim because the defendant was someone he knew from the neighborhood. Mr. Ruffin
insisted that, when he idenified the defendant in a photographic lineup as the man who
had robbed the victim, he had been forced to do so by the police. When asked why his
account of the events of November 25 had changed, Mr. Ruffin testified that he had been
diagnosed with paranoid schizophrenia and that he was afraid.
On cross-examination, Mr. Ruffin stated that his entire body was
underneath his vehicle when he heard a “commotion” on November 25 and saw “two
pairs of legs” standing near the victim. Mr. Ruffin remained beneath the vehicle and
heard footsteps running away. At that time, Mr. Ruffin advised the victim not to follow
the men, but he watched the victim and Mr. Winters “jump[] in the car” and leave. Mr.
Ruffin testified that, when he initially spoke with police, he informed them that the
victim’s family had been threatening him. When Mr. Ruffin provided his January 27
statement and photographic identification of the defendant, he did so because the police
officers were threatening to charge him with a different robbery.
Lieutenant David James Parks with the Memphis Police Department
(“MPD”) testified that he, along with MPD Detective Eric Freeman, interviewed Mr.
Ruffin on both January 26 and 27 at the MPD. Lieutenant Parks explained that Mr.
Ruffin was initially brought in on January 26 to discuss his role in a recent robbery and
that Mr. Ruffin was provided with his Miranda warnings but that officers also wanted to
speak with Mr. Ruffin about what he had witnessed during the robbery of the victim. Mr.
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Ruffin signed a waiver of his rights, never asked for an attorney, and did not appear to be
under the influence of alcohol or drugs. Lieutenant Parks denied threatening Mr. Ruffin
in any way. Lieutenant Parks then interviewed Mr. Ruffin, who stated that the defendant
had robbed and murdered the victim. On the following day, Mr. Ruffin provided officers
with a signed, written statement in which he stated that the defendant and a “lil small
short dude” had robbed the victim at gunpoint with “a black 9 or a .40.” Mr. Ruffin
described the defendant as either “20 or 21” years of age, five foot, 10 inches tall, and
having either “dreads or braids” and a reddish skin tone.
Travis Wright testified and conceded that he gave a statement to MPD
officers in January 2011 in which he admitted accompanying the defendant during the
robbery of the victim, but on the witness stand, Mr. Wright denied knowing the defendant
or having any involvement with the robbery or murder of the victim. When the
prosecutor asked Mr. Wright to read his prior statement, Mr. Wright explained that he
had difficulty reading, so the statement was read aloud to him outside the presence of the
jury.
In his statement, Mr. Wright identified the defendant by name, explaining
that he had known the defendant “[a]ll [of his] life.” Mr. Wright stated that he was
present when the defendant robbed the victim in front of the victim’s apartment. Mr.
Wright described how the defendant forced the victim at gunpoint to lie down “[b]y his
car in the street” so that the defendant could rifle through the victim’s pockets, but Mr.
Wright stated that the defendant took nothing from the victim. According to Mr. Wright,
after the robbery, he saw the victim in “a black car,” and the defendant shot the victim
with a black automatic handgun. Mr. Wright recalled that the defendant had fired
“[a]bout ten shots.” When asked why he had not come forward sooner, Mr. Wright stated
that he “was scared to say something.” Mr. Wright then identified the defendant from a
photographic lineup as the man who robbed and murdered the victim.
When the jury returned to the courtroom, Mr. Wright again denied any
involvement with the victim’s robbery and murder, stating that he had lied when he gave
his statement to police officers in 2011 out of fear that he would go to jail. Mr. Wright
explained that he had chosen the defendant’s picture from the photographic lineup
because the defendant’s name was written underneath his picture and an arrow was
pointing to the picture. Mr. Wright denied having any feelings of animosity toward the
defendant which would cause him to implicate the defendant in these crimes.
On cross-examination, Mr. Wright stated that police officers had picked
him up and brought him to the station for questioning. Mr. Wright testified that the
officers had informed him that he could be charged with murder, causing him to give the
statement incriminating the defendant so that he could save himself.
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MPD Lieutenant Anthony Mullins testified that he had interviewed Mr.
Wright on January 2, 2011, after learning that he was present when the victim was killed.
Lieutenant Mullins informed Mr. Wright that, at that point, he was both a potential
suspect and a potential witness. Mr. Wright was provided with his Miranda warnings,
which Lieutenant Mullins asked him to read aloud, and he signed a waiver of his rights.
Although Mr. Wright initially denied any involvement, he eventually confessed to being
present with the defendant when the defendant robbed and murdered the victim.
Following his interview with Lieutenant Mullins, Mr. Wright’s statement was typed and
given to him to review for mistakes. Mr. Wright reviewed and signed the statement, a
redacted version of which was entered into evidence. With respect to the photographic
lineup shown to Mr. Wright, Lieutenant Mullins identified for the court a “master
detective copy” of the same lineup, which included the names of those in the lineup and a
red arrow pointing to the defendant’s name; Lieutenant Mullins explained that this master
copy was never shown to Mr. Wright.
On cross-examination, Lieutenant Mullins conceded that he was aware that
some evidence had come to light during his investigation that contradicted things said by
Mr. Wright. On redirect examination, Lieutenant Mullins confirmed that Mr. Wright was
not arrested following his January interview and statement because he was considered a
witness at that point rather than a suspect.
MPD Officer Alfred Neely testified that he was the first officer on the scene
of the shooting on November 25 and that he arrived at apprioximately 9:00 p.m. Upon
his arrival, he observed “a black Infinity [sic] occupied by a male black driver” and that
the vehicle was “just riddled with bullets on the whole driver’s side.” According to
Officer Neely, the victim “had been shot multiple times,” and he opined that the victim’s
apartment was located less than half a mile from the crime scene.
MPD Officer and Crime Scene Investigator Eric Carlisle responded to the
scene of the shooting on November 25 and recovered 14 spent shell casings and three
bullet fragments. Officer Carlisle photographed two bullet holes in the front windshield
of the victim’s vehicle, and, at the hospital, he recovered $638 in cash from the victim’s
person.
MPD Officer and Crime Scene Investigator Newton Morgan examined the
victim’s vehicle following the shooting and located seven bullet fragments, although he
was only able to recover six of the fragments because the seventh fell from the
windshield into the vehicle’s vents before he could collect it. Officer Morgan determined
that there were nine bullet holes in the victim’s vehicle.
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Tennessee Bureau of Investigation (“TBI”) Special Agent and Forensic
Scientist Cervinia Braswell testified as an expert witness in the area of firearms
identification. Agent Braswell examined the shell casings, bullets, and bullet fragments
recovered from the crime scene and determined that all 14 of the shell casings were fired
from the same nine-millimeter semiautomatic handgun. With respect to the bullets and
bullet fragments, Agent Braswell opined that all had been fired from the same nine-
millimeter handgun, although she explained that because the shell casings and bullets are
“marked by separate parts of the gun,” she was unable to say with any certainty whether
the casings and bullet fragments were fired from the same nine-millimeter handgun.
Doctor Marco Ross, a forensic pathologist and deputy chief medical
examiner of the West Tennessee Regional Forensic Center, testified that he performed
the victim’s autopsy. Doctor Ross determined that the victim had sustained a gunshot
wound to the head and that the bullet had entered the left side of the head, passed through
the victim’s brain, and exited on the right side. Doctor Ross opined that the cause of the
victim’s death was the gunshot wound to his head and that the manner of death was
homicide.
Carlos Bush, an acquaintance of both the defendant’s and the victim’s,
testified that, on a night in late 2009, he and a man named “Don” were standing outside a
store in the vicinity of the shooting when the defendant and another man arrived in a
white vehicle. The defendant was “acting kind of strange[,] like out of breath” and he
told Mr. Bush and Don that “[h]e just put in some work,” which Mr. Bush took to mean
that the defendant had just shot or beaten someone. Mr. Bush recalled that helicopters
and police cars were circling the area during this time and that the defendant had shown
Don a black nine-millimeter handgun. A few minutes later, the defendant and the other
man drove away.
In late January 2010, Mr. Bush was arrested on unrelated charges. Shortly
thereafter, he encountered the defendant, who told Mr. Bush more information about the
victim’s murder:
[The defendant j]ust said [the victim] was sitting in the
car. [The defendant] pulled up – well, he ran up on and
dumped on him like four or five times.
Mr. Bush explained that he understood “dump on him” to mean that the defendant had
shot the victim. According to Mr. Bush, the defendant told him that he had shot the
victim in the chest and the face. Mr. Bush then wrote to MPD detectives informing them
of his conversation with the defendant in the hope that providing this information to the
police would assist him with his recent criminal charges.
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On February 10, 2010, Mr. Bush met with MPD detectives, provided them
with a statement, and, after viewing a photographic lineup, identified a photograph of the
defendant as the person who had murdered the victim. A few days later, Mr. Bush again
encountered the defendant, who told Mr. Bush that “homicide” had been questioning
him. The defendant also told Mr. Bush that “somebody was with” the victim at the time
of the shooting and that Mr. Bush could “ask Wookie how he dumped on” the victim.
Mr. Bush testified that he never received any assistance from the police in exchange for
the information that he provided and that he was currently serving a 15-year federal
sentence.
On cross-examination, Mr. Bush acknowledged that he did not initially
come forward with his information on the victim’s murder and that he had previously
provided information to the police in other cases but that he had never received any
preferential treatment. Mr. Bush admitted that he did not know the identity of the person
the defendant had referred to as “Wookie” and conceded that he had lied to the defendant
about having “gotten into it” with the victim in 2006, explaining that he had done so in
order to get the defendant to “talk[] about what happened” to the victim.
With this evidence, the State rested. Following the defendant’s motion for
judgments of acquittal and a Momon colloquy, the defendant elected not to testify but did
choose to present proof.
Jessica Baptist, the defendant’s niece, testified that November 25 was the
eve of Thanksgiving and that she, the defendant, and other family members were
gathered in Walls, Mississippi, at the home of her aunt, Jamia Scaife, to prepare food for
the following day. According to Ms. Baptist, she left Ms. Scaife’s house with the
defendant and his girlfriend, Kita, around 9:00 p.m. to make the 35-minute drive from
Walls to Memphis. Upon arriving in Memphis, the defendant drove to the home of Ms.
Baptist’s grandmother, Ida Taylor, to return a cake mixer. Ms. Baptist stayed with Ms.
Taylor, and the defendant and Kita left to return to Walls.
Iasha Avant, the defendant’s sister, testified that she was preparing food
and traveling between Ms. Taylor’s house and Ms. Scaife’s house throughout the day on
November 25. Although she knew that the defendant was with her on November 25, she
could not recall “the exact time” that she saw him.
Jedaren Allen, the defendant’s brother, testified that the defendant was
already present at Ms. Scaife’s residence when he arrived in the early evening hours of
November 25. Mr. Allen recalled that the defendant left at some point to drive Ms.
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Baptist and others back to Memphis and that the defendant later returned to Ms. Scaife’s
residence, although he could not recall the time.
Jamia Scaife, the defendant’s sister, testified that the defendant arrived at
her house “around 5:30, six, in the afternoon” of November 25 and that the defendant left
“about 9:30, 10 o’clock that night” to return a cake mixer to Ms. Taylor. Ms. Scaife
estimated that the defendant was gone between 45 minutes and one hour before returning
to her residence with his girlfriend. The defendant stayed at Ms. Scaife’s house
overnight.
Based on this evidence, the jury convicted the defendant of the lesser
included offenses of second degree murder and attempted aggravated robbery and
acquitted the defendant of the firearm charge. Following a sentencing hearing, the trial
court imposed a 25-year sentence for the second degree murder conviction and a six-year
sentence for the attempted aggravated robbery conviction, to be served concurrently to
one another for an effective sentence of 25 years.
Following the denial of his timely motion for new trial, the defendant filed
a timely notice of appeal. In this appeal, the defendant contends that the trial court erred
by admitting certain witness testimony and that the evidence adduced at trial was
insufficient to support his convictions. We will address each issue in turn.
I. Witness Testimony
The defendant first contends that the trial court erred by permitting the
State to call Mr. Ruffin and Mr. Wright as witnesses “for the sole purpose of impeaching
them [with their] prior inconsistent statements.” Because, as argued by the defendant, the
MPD officers who took the statements of the witnesses were called to testify immediately
following the testimony of the respective witness, such order of testimony “suggests that
the State knew that each man would recant his testimony and was immediately prepared
to offer the officers to provide substantive proof as to each of the statements.”
The defendant relies on Mays v. State, 495 S.W.2d 833 (Tenn. Crim. App.
1972), for the proposition that a witness may not be called to testify at trial for the sole
purpose of impeachment by introduction of that witness’s prior statement. In Mays, two
witnesses called by the State to testify against the defendants at trial refused to implicate
the defendants in the crime, at which point the State impeached the witnesses with their
prior inconsistent statements to law enforcement officers. Id. at 836. The defendant
posits that, because the State was aware as early as the preliminary hearing that the
witnesses had repudiated their statements and intended to do so at trial, the trial court
erred by permitting the impeachment because “it was calculated to and did serve only one
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purpose which was to put before the jury the out of court statements.” Id. at 836-37; see
also State v. Steve Johnson, No. 02-C-01-9504-CC-00097, slip op. at 12-15 (Tenn. Crim.
App., Jackson, Feb. 27, 1997) (reversing defendant’s conviction upon a finding that the
State was on notice that witness intended to repudiate statement against defendant and
that the trial court’s subsequent curative instruction to jury to disregard witness’s
testimony was “insufficient to overcome the serious prejudicial effect of putting the out
of court statements made by [the witness] in front of the jury”); State v. Roy L. Payne,
No. 03C01-9202-CR-45, slip op. at 4 (Tenn. Crim. App., Knoxville, Feb. 2, 1993)
(reversing defendant’s conviction upon a finding that State was on notice that witness
would repudiate prior statement against defendant and holding that “such impeachment
cannot be a mere ruse to introduce highly prejudicial and improper testimony”).
Here, however, the defendant failed to object, at any point during the trial,
to the introduction of either witness’s prior inconsistent statement, and thus, he has
waived our review of this issue on appeal. See Tenn. R. App. 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.”); Tenn. R. Evid. 103(a)(1) (“Error may not be predicated
upon a ruling which admits . . . evidence unless a substantial right of the party is affected,
and . . . a timely objection or motion to strike appears of record, stating the specific
ground of objection if the specific objection is not apparent from the context.”).
Moreover, our review of the trial transcripts reveals that the State intended
to introduce the redacted statements of both witnesses under Tennessee Rule of Evidence
803(26), which provides that a prior inconsistent statement of a testifying witness may be
admitted as substantive evidence if that statement is otherwise admissible under Rule
613(b) and:
(A) The declarant must testify at the trial or hearing and be
subject to cross-examination concerning the statement.
(B) The statement must be an audio or video recorded
statement, a written statement signed by the witness, or a
statement given under oath.
(C) The judge must conduct a hearing outside the presence of
the jury to determine by a preponderance of the evidence
that the prior statement was made under circumstances
indicating trustworthiness.
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Tenn. R. Evid. 803(26). Although the statements generally met the terms of both Rule
613(b) and Rule 803(26), the trial court did not make the requisite finding of
trustworthiness because the parties agreed that the redacted statements were admissible.
Accordingly, any failure by the trial court to make the trustworthiness finding is excused
by the parties’ agreement, and the defendant is therefore bound by this agreement
pursuant to Rule 36(a). Even if, however, the statements were not properly admitted
under Rule 803(26), the defendant failed to ask the court to instruct the jury to limit the
use of the statements to impeachment and made no objection to their introduction, and
the redacted statements were therefore admissible as substantive evidence of the
defendant’s guilt. See State v. Smith, 24 S.W.3d 274, 279-80 (Tenn. 2000).
In any event, the defendant has offered nothing, other than his belief that
the order of the witnesses at trial suggested that the State knew that Mr. Ruffin and Mr.
Wright would recant their statements, to support his claim that the State’s use of the
witnesses’ prior inconsistent statements was in error. Nothing in the record suggests that
the impeachment “was calculated to and did serve only one purpose which was to put
before the jury the out of court statements.” Mays, 495 S.W.2d at 837. For all of these
reasons, this argument must fail.
II. Sufficiency
Next, the defendant argues that the evidence adduced at trial was
insufficient to support his convictions. We disagree.
We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
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Id.
As charged in this case, “[s]econd degree murder is . . . [a] knowing killing
of another.” T.C.A. § 39-13-210. Aggravated robbery is “robbery as defined in § 39-13-
401 . . . [a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §
39-13-402(a)(1). “Robbery is 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
person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Id. § 39-14-103(a).
Criminal attempt is committed when a person, “acting with the kind of
culpability otherwise required for the offense . . . [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).
Here, the proof adduced at trial established that, on the evening of
November 25, 2009, the defendant and Mr. Wright accosted the victim outside the
victim’s residence, where the defendant forced the victim onto the ground at gunpoint
before rifling through the victim’s pockets and fleeing with Mr. Wright. A short time
later, while the victim and Mr. Winters were driving around in an apparent search for the
perpetrators of the attempted aggravated robbery, the defendant fired 14 gunshots from a
semiautomatic handgun at the victim’s vehicle and struck the victim in the head, killing
him.
Mr. Ruffin, Mr. Wright, and Mr. Bush all positively identified the
defendant in separate photographic lineups; Mr. Ruffin idenitified him as the man who
attempted to rob the victim, and Mr. Wright and Mr. Bush identified him as the man who
shot the victim. Ballistics testing concluded that all shells collected from the scene had
been fired from the same nine-millimeter semiautomatic handgun and that all bullets and
bullet fragments recovered from the scene had also been fired from a nine-millimeter
handgun. Mr. Bush stated that he had seen the victim with a nine-millimeter handgun
shortly after the shooting occurred.
The defendant primarily takes issue with the State’s failure to identify him
as the perpetrator of the crimes. Specifically, the defendant claims that the testimony of
Mr. Ruffin and Mr. Wright was suspect due to their recanting of their statements and that
their testimony was not sufficienly corroborated by other witnesses, such as Mr. Bush.
We perceive this argument to be one of credibility concerns. The jury, however, as the
trier of fact, resolves all questions of witness credibility, and it clearly found the
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identification by multiple witnesses of the defendant as the perpetrator of the attempted
aggravated robbery and murder of the victim to be credible. See Cabbage, 571 S.W.2d at
835.
Taking all of this evidence into consideration, we find that the defendant
intended to deprive the victim of his property by violence or placing him in fear and by
display of a deadly weapon and that the defendant knowingly killed the victim. Thus, the
evidence sufficiently supports the defendant’s convictions of the lesser included offenses
of second degree murder and attempted aggravated robbery.
Accordingly, we affirm the judgments of the trial court.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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