State of Tennessee v. Ashton Buford, Devante Terrell and Melvin Hopkins

03/07/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 11, 2017 Session
STATE OF TENNESSEE v. ASHTON BUFORD, DEVANTE TERRELL and
MELVIN HOPKINS
Appeal from the Criminal Court for Shelby County
No. 13-02392 W. Mark Ward, Judge
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No. W2016-01387-CCA-R3-CD
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A Shelby County Criminal Court Jury convicted the Appellants, Ashton Buford, Devante
Terrell, and Melvin Hopkins, of two counts each of first degree felony murder; one count
each of especially aggravated kidnapping, a Class A felony; and one count each of
aggravated robbery, a Class B felony. The trial court merged the felony murder
convictions, and the Appellants received effective sentences of life in confinement. On
appeal, the Appellants contend that the trial court erred by deleting “killing” from
portions of the jury instructions for first degree felony murder; by denying severance
motions, admitting evidence of codefendants’ statements, and failing to give a limiting
instruction in violation of Bruton v. United States, 391 U.S. 123 (1968); and by allowing
the State to engage in improper jury voir dire and closing arguments. In addition,
Appellant Buford contends that the trial court erred by failing to list the elements for the
underlying felonies in the jury instructions for first degree felony murder, that the trial
court erred by failing to instruct the jury on facilitation of the charged offenses, that the
evidence is insufficient to support his convictions of first degree felony murder and
especially aggravated kidnapping, and that cumulative error warrants a new trial. Based
upon the oral arguments, the record, and the parties’ briefs, we find no reversible error
and affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.
Phyllis Aluko (on appeal) and Constance Barnes and Kathy Kent (at trial), Memphis,
Tennessee, for the appellant, Ashton Buford; Seth M. Segraves and Michael R. Working,
Memphis, Tennessee, for the appellant, Devante Terrell; and Arthur E. Horne (on appeal
and at trial) and Carlissa Shaw (at trial), Memphis, Tennessee, for the appellant, Melvin
Hopkins.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Greg Gilbert and Omar Malik,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
This consolidated appeal relates to the beating, robbery, and kidnapping of sixty-
one-year-old Jessie Wilson on July 25, 2012. The victim died on September 30, 2012. In
May 2013, the Shelby County Grand Jury indicted the Appellants for first degree felony
murder committed during the perpetration of or the attempt to perpetrate robbery in count
one, first degree felony murder committed during the perpetration of or the attempt to
perpetrate kidnapping in count two, aggravated robbery in count three, and especially
aggravated kidnapping in count four. Counts one and two also named a fourth defendant,
Robert Armstrong, who was fifteen years old at the time of the crimes.
Before trial, Appellant Buford filed two motions to sever his trial from that of his
codefendants due to written confessions given by Appellants Buford and Terrell, and
Armstrong entered into an agreement with the State to testify against the Appellants in
exchange for a guilty plea to facilitation of first degree felony murder and a sentence of
thirteen and one-half years as an especially mitigated offender. On the morning of the
first day of trial, the trial court denied Appellant Buford’s motions to sever and ruled that
the Appellants’ confessions, redacted to remove any references to codefendants, were
admissible.
At trial, Lenwood Reed testified that he knew the victim for one year to eighteen
months, that they met “through ministry,” and that he talked with the victim on a regular
basis. Reed last saw the victim on or about July 24, 2012, and the victim did not
complain about any health issues. On the evening of July 25, the victim contacted Reed
because he owed Reed $100. The victim told Reed that Reed could come to the victim’s
apartment to get the money, and Reed told the victim that he would come after work.
When Reed got off work about 10:30 p.m., he telephoned the victim. Reed said “[a]
young man” answered and told him the victim was not there. Reed responded that the
victim had to be there because the victim did not go out at that time of night. The young
man said the victim had gone to the store and hung up. Reed telephoned the victim
again, but the call went to voicemail.
Reed testified that the call “stayed on” his mind. The next morning, he and a
friend went to the victim’s apartment building. The apartment manager took them to the
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victim’s apartment, and a maintenance man “popped the door open.” Reed went inside
and saw that the apartment had been “ransacked.” He could hear the victim moaning and
found the victim lying on the bathroom floor. The victim was swollen, and blood was on
his face. Reed said the victim looked “[t]otally different” from the victim’s appearance
on July 24.
Reed testified that he visited the victim in the hospital on July 27 and that the
victim did not respond to him. A couple of days later, Reed visited the victim again. The
victim did not recognize Reed and still did not respond. Reed visited the victim after the
victim was transferred to long-term care but never got a response from him.
On cross-examination by counsel for Appellant Buford, Reed testified that the
victim helped him with issues at his church and that he took the victim grocery shopping
sometimes. He did not go into the victim’s apartment often, and he was unaware the
victim had a roommate. When Reed telephoned the victim on the night of July 25, Reed
did not recognize the young man’s voice. He said he knew the young man’s story was
untrue because the victim did not go out after dark. On the morning of July 26, Reed and
his friend went to the back door of the victim’s apartment building and knocked on the
door; the manager let them into the building. Reed said he did not remember if he tried
to pull on the door to see if it would open.
On cross-examination by counsel for Appellant Hopkins, Reed acknowledged that
he and the victim were “pretty good friends” but that he did not know much about the
victim and never met the victim’s family. On cross-examination by counsel for
Appellant Terrell, Reed acknowledged that the maintenance man did not use a key to
open the victim’s apartment door.
Officer Michael England of the Memphis Police Department (MPD) testified that
about 10:30 a.m. on July 26, 2012, he and another officer responded to a call at the
victim’s apartment and went to the front door of the building. He stated, “I don’t
remember if that [door] had a buzzer or not. I think we just walked in.” The officers
went to the victim’s apartment on the seventh floor, and Officer England saw fire
department personnel bringing out the victim on a gurney. The victim was wearing a
neck brace and an oxygen mask, had blood on his face, and was making “a gurgling
sound.” Officer England tried to ask the victim a question, but he was unresponsive.
On cross-examination by counsel for Appellant Hopkins, Officer England testified
that he spoke with the victim’s neighbor, who said he heard “banging coming from down
the hall” about 9:00 p.m. The neighbor stepped out of his apartment and saw two males
walking away from the area of the victim’s apartment and toward the elevators. One of
the males was wearing a white t-shirt, and the other was wearing “a green jersey style
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shirt.” The neighbor did not see their faces because they had their backs to him. Officer
England also spoke with a maintenance man, who showed him damage to the victim’s
front door. The maintenance man had “dismantle[d] the door” to gain entry to the
victim’s apartment. Officer England did not inspect the back door of the apartment
building.
James Schafer, a retired sergeant from the MPD, testified that he investigated the
case and went to the victim’s apartment about 11:30 a.m. on July 26, 2012. Other
officers were present, and the victim had been transported to a hospital in critical
condition. The knob on the front door of the apartment was missing, and the door’s lock
had been damaged. Sergeant Shafer entered the apartment through the kitchen and
noticed that cabinet drawers and doors were open. He went into the living room and saw
what appeared to be blood. “[M]ore blood” was in the bedroom, and the bedroom door
had “a large dent in it.” Sergeant Shafer entered the bathroom and noticed a large
amount of blood and two neckties. He said the entire apartment had been ransacked as if
“[s]omebody was searching for something.”
Sergeant Shafer testified that another officer already had “pulled” video of two
potential suspects. Sergeant Shafer viewed the video, which was recorded on July 25,
and it showed two males entering the back door of the victim’s apartment building. One
of them “had taken his shirt and covered up his face as if not wanting to be seen or
identified.” Sergeant Shafer obtained a still photograph of the suspects from the video
and released it to the media. One or two days later, Robert Armstrong, who had turned
fifteen years old on July 25, and Jerrico Ware, who was seventeen years old and
Armstrong’s cousin, came to the police department and spoke with Sergeant Shafer.
Ware admitted that he was the individual in the video with the shirt covering his face.1
However, he claimed he was not present when the victim was assaulted. Armstrong gave
an incriminating statement to Sergeant Shafer. Based on Armstrong’s statement,
Sergeant Shafer began looking for the Appellants and Terrell Vaughn.
Sergeant Shafer testified that he viewed a second video from the apartment
building and that the second video was recorded earlier on July 25 than the first video.
The second video showed four suspects entering the back door of the building and was
consistent with Armstrong’s statement.
The State played the second video for the jury. Sergeant Shafer testified that the
video showed Robert Armstrong entering the building first, followed by Appellant
Terrell, who was wearing a backpack; Appellant Buford; and Appellant Hopkins.
Although the door to the building had a security system, the system was broken so that
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Terrell Vaughn turned out to be the second individual in the video.
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they just “had to pull on it a couple of times to get in.” The State then played a third
video, which showed the four of them getting onto an elevator on the ground floor of the
building and the elevator doors closing. An electronic indicator above the doors showed
that the elevator went up to the seventh floor, the floor on which the victim’s apartment
was located. Less than five minutes later, the elevator doors opened on the ground floor,
and the four males exited the elevator. Sergeant Shafer said that when Appellant Terrell
exited the elevator, “it’s obvious that [his backpack] has some stuff in it as compared to
when they first went up.”
Sergeant Shafer testified that the police arrested Appellant Buford and brought
him to the police department. Sergeant Shafer advised Appellant Buford of his rights,
and Appellant Buford agreed to speak with him. During the interview, Appellant Buford
admitted being involved, stating, “I was searching the front room near the couch for more
money. I went into the refrigerator and got some juice and oatmeal pies. . . . [The victim]
wasn’t saying anything but it sounded like he was snoring.” Sergeant Shafer asked
Appellant Buford if he was concerned about the victim at that time, and Appellant Buford
answered, “No, sir. I was just trying to get out and leave.” Appellant Buford said that
the victim was lying on the bathroom floor, that the victim “only had a couple of knots on
his face,” and that he never sought help for the victim. Sergeant Shafer asked Appellant
Buford “[e]xactly how much money and what other property” were taken from the
victim, and Appellant Buford answered, “$141 and some food.” Appellant Buford did
not know the victim prior to July 25.
Sergeant Shafer testified that Appellant Terrell turned himself in to the police, that
he advised Appellant Terrell of his rights, and that he interviewed Appellant Terrell.
Appellant Terrell said he learned from Terrell Vaughn that the victim “was going to get
some money.” Appellant Terrell telephoned the victim, and the victim thought Appellant
Terrell was Terrell Vaughn. Appellant Terrell told the victim that he would “be over
there about seven or eight.” Appellant Terrell went to the victim’s apartment and
knocked on the door. When the victim opened it, Appellant Terrell “just busted in on
him.” The victim was yelling, “[S]top hitting me, what you hitting me for[?]” Blood was
coming out of his mouth, and he was “breathing hard.” Appellant Terrell said he was
concerned about the victim because “there was too much blood coming out of his
mouth.” Appellant Terrell said he took $140, a telephone, and “juices” from the victim
and that the items were in his backpack. He said he did not know the victim and had not
been in the victim’s apartment prior to July 25.
Sergeant Shafer testified that he initially charged the Appellants and Armstrong
with especially aggravated robbery and especially aggravated kidnapping. However, the
victim died on September 30, 2012, so Sergeant Shafer added charges of first degree
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murder. He said he never obtained a statement from the victim because the victim never
regained consciousness after July 25.
On cross-examination by counsel for Appellant Buford, Sergeant Shafer testified
that he did not remember if he interviewed Terrell Vaughn and that individuals named
“Brandon” and “Kavorious” also were suspects. On cross-examination by counsel for
Appellant Hopkins, Sergeant Shafer testified that he never went to the hospital to try to
talk to the victim. Instead, he telephoned the medical staff often, sometimes twice per
day, to find out if the victim was conscious. He said he was unaware that the victim was
ever conscious after July 25. On cross-examination by counsel for Appellant Terrell,
Sergeant Shafer testified that he learned from the victim’s neighbor that Kavorious had
lived with the victim at some point. However, the day before the victim was attacked,
Kavorious went to the bus station and left town. The neighbor provided Sergeant Shafer
with a description of Kavorious, but Sergeant Shafer never obtained video from the bus
station.
On redirect examination, Sergeant Shafer described the victim’s assault as
“brutal.” He said that the victim was beaten with hands, not a weapon, and that the
victim suffered due to the attack.
Officer David Galloway of the MPD testified that he went to the victim’s
apartment on July 26, 2012, and “[swabbed] the scene” for evidence, specifically blood
and DNA. He collected at least ten swabs from various locations in the apartment. He
also attempted to collect fingerprints but did not find any prints of value.
Carolyn Washington, the victim’s daughter, testified that the victim was diagnosed
with sarcoidosis of the lungs when he was “in his 30s,” an enlarged heart in 2006 or
2007, and HIV in 2009. She said she saw him about twice per week and talked to him on
the telephone every day. On July 25, 2012, Washington took the victim to run errands,
and he walked his two granddaughters to the park. He was not having any trouble
walking or talking that day. About 9:00 a.m. on July 26, Washington received an
emergency telephone call from one of the victim’s friends. She said she was “shocked”
by the call because the victim was “fine” the previous day.
Washington testified that she went to the hospital and that the victim’s “face and
everything was just swollen and his eyes [were] swollen shut and [he] had a collar around
his neck.” Washington talked to the victim, but he did not recognize her and would not
respond. He tried to open his eyes, but they were too swollen. He had a tube in his throat
that was connected to a breathing machine, a tube in his stomach because he could not
feed himself, and a catheter. Washington said, “Every now and then he was there but he
wasn’t there.” She stated that the victim “was constantly trying to get away because he
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[was] thinking someone was coming for him,” that he pulled the tubes out of his body,
and that he had to be restrained. At some point, the victim indicated that he wanted the
breathing tube out of his throat, so doctors removed it and performed a tracheotomy.
Washington said that the bones in the victim’s face were broken and that she heard
“rattling noises” when he moved his head.
Washington testified that two weeks later, the victim was moved into long-term
care at a second hospital. The ultimate goal was to move him into rehabilitation so that
he could learn to walk and go home. However, one of his eyes became infected and did
not improve. The victim had an “eye issue” prior to July 25 due to his HIV. An infection
developed in his bloodstream, and he was transferred to hospice care. One night, the
victim vomited into his trachea. Washington said that “he just turned for the worst and
everything started to just shut down and everything started to get worse.” On September
29, the victim had a seizure that lasted more than one hour, and his doctor told
Washington that the victim’s heart had “started to fade.” The victim died the next day,
September 30, 2012. Washington said that he never was able to talk after July 25 but that
he could respond to her by grabbing her hand or making noises. She said Sergeant Shafer
would have been unable to have taken a statement from the victim.
On cross-examination by counsel for Appellant Buford, Washington testified that
prior to July 25, the victim also suffered from sinus problems and asthma and was taking
nine or ten medications per day. He received a disability check every month, and he
fixed televisions in his apartment “[o]n the side.” The victim had a roommate briefly, but
Washington never met him. On July 26, 2012, Washington’s mother also went to the
hospital, and the victim recognized her. After three or four days in intensive care, the
victim recognized Washington. Washington said she would talk to the victim about his
medical care and that she thought he understood her because he would squeeze her hand
to respond “yes” and shake his head to respond “no.” However, by the time he was
moved out of long-term care, “he was a vegetable.”
On cross-examination by counsel for Appellant Hopkins, Washington
acknowledged that she knew the victim had a staph infection on his knee prior to July 25
but said that she did not know he had been diagnosed with a zygomatic fracture of his
cheekbone, dizziness, and chronic kidney disease. She acknowledged that while the
victim was in the hospital, he tried to sit up and stand up.
On cross-examination by counsel for Appellant Terrell, Washington testified that
she did not know the victim had broken his cheekbone one month before this incident.
She acknowledged that while the victim was in the hospital, he seemed to improve for a
while but then “took a turn for the worse.”
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Eighteen-year-old Robert Armstrong testified that on July 25, 2012, he turned
fifteen years old. Appellant Terrell was nineteen years old, and Appellants Hopkins and
Buford were eighteen. Armstrong was “real close” with Appellant Terrell, and
Appellants Terrell and Buford were good friends.
Armstrong testified that a couple of weeks before the victim was attacked,
Armstrong overheard Terrell Vaughn tell Appellant Terrell that the victim was going to
receive “a double check.” On July 25, Armstrong and the Appellants were together
“drinking, swimming, [and] playing basketball,” and Appellant Terrell mentioned the
victim’s check. The four of them developed a plan to rob the victim of cash and
“anything else of value.” Armstrong and Appellant Hopkins were to stand just inside the
doorway of the victim’s apartment while Appellants Terrell and Buford went into the
apartment and hit the victim with their fists. Armstrong and Appellant Hopkins were to
go inside when they heard noises.
Armstrong testified that the four of them went to the victim’s apartment and that
he and Appellant Hopkins stood at the front door until they heard heavy objects being
moved. They “assumed that it was a body” and entered the apartment. The victim was
lying on the living room floor, was awake, and was saying, “[H]elp.” The victim did not
appear to have any injuries, and Armstrong went into the victim’s bedroom. Armstrong
“started looking around for stuff, started raising up mattresses, going inside shelves, just
anything” and found two cellular telephones.
Armstrong testified that Appellant Buford beat the victim’s face with his fists
“[a]bout eight times” and that the victim “went unconscious.” Appellant Terrell said,
“Go in his pockets and get the money.” Appellant Buford “[got] off” the victim, and
Appellant Hopkins took the victim’s wallet out of the victim’s pocket and removed $140.
Appellant Hopkins then dragged the unconscious victim from the living room into the
bathroom, and Armstrong saw a lot of blood coming out of the victim’s mouth. The State
asked if Armstrong was concerned about the victim at that time, and Armstrong said no
because “I was trying to get out of there.” Appellant Hopkins tied up the victim with
neckties, and the four of them left. They took the two telephones, the money, some keys,
a few t-shirts, some oatmeal cream pies, and some juice. The items were in Appellant
Terrell’s backpack. Each of them received twenty dollars, and they spent the rest of the
money on marijuana.
Armstrong testified that after the incident, they went to the Citgo gas station where
they encountered Jerrico Ware and Terrell Vaughn. Armstrong saw Appellants Buford
and Terrell talking with Ware and Vaughn but did not hear their conversation.
Armstrong later saw a photograph of Ware and Vaughn on the television news. He said
that his sisters urged him to turn himself in to the police rather than let Ware and Vaughn
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“go down for something ya’ll did.” Therefore, Armstrong went to the police department
and spoke with Sergeant Shafer. Armstrong was arrested and initially charged in juvenile
court with kidnapping and robbery. He said he “pled guilty” and was later charged in
adult court with murder. Armstrong signed an agreement with the State to testify against
the Appellants in exchange for a guilty plea to facilitation of first degree felony murder
committed during the perpetration of aggravated robbery and a sentence of thirteen and
one-half years. A few days before trial, Armstrong received a letter from Appellant
Terrell, asking Armstrong not to testify. Armstrong said the letter made him “uncertain”
about testifying against the Appellants because he had a close relationship with Appellant
Terrell and looked up to him.
On cross-examination by counsel for Appellant Buford, Armstrong testified that
he did not know the victim prior to July 25 but had seen the victim in the park.
Armstrong played basketball in the park every day but did not see the victim there often.
The victim never approached Armstrong or conversed with him. Armstrong said he had
been in the victim’s apartment building prior to July 25 to visit Appellant Terrell’s
cousin, who lived on the third floor. Armstrong usually went to the third floor apartment
with Appellant Terrell and someone named “Ashton.” Counsel for Appellant Buford
showed Armstrong a photograph of three males entering the victim’s apartment building
on July 21, 2012, and Armstrong identified the three males as himself, Terrell Vaughn,
and Jerrico Ware. He said he did not know why they were in the building that day.
Armstrong testified that about 2:00 p.m. on July 25, the victim called Appellant
Terrell’s cellular telephone. Appellant Terrell was playing basketball, so Armstrong
answered the phone. Armstrong did not recognize the victim’s voice, but the victim’s
name appeared “in caller ID.” Armstrong told Appellant Terrell that the victim had
called and handed the telephone to Appellant Terrell. That evening, Armstrong and the
Appellants went to Appellant Buford’s house. Appellant Terrell mentioned the victim’s
disability check, and they developed the plan to rob the victim. They went to the back
door of the victim’s apartment building and “just walked in.” Appellant Terrell knew
where the victim lived, so they took the elevator to the seventh floor. Armstrong said he
went to the victim’s apartment willingly and knowing that the victim was going “to get
beat up and robbed.” He acknowledged that in order to get his “sweetheart deal” with the
State, he had to testify against the Appellants and that he discussed his testimony with the
State. The State told him that it would cancel the deal if he did not testify truthfully.
On cross-examination by counsel for Appellant Hopkins, Armstrong
acknowledged that his plea agreement included being eligible for parole after serving
twenty percent of his sentence and that he already was eligible for parole. He said that he
was hoping to be released from prison after the Appellants’ trial but that “I doubt it.” He
acknowledged that in his statement to Sergeant Shafer, he did not say Appellant Hopkins
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tied up the victim. He also acknowledged telling Sergeant Shafer that Appellant Hopkins
did not touch anyone during the incident.
On cross-examination by counsel for Appellant Terrell, Armstrong testified that
Terrell Vaughn was fourteen years old on July 25. Vaughn was “the one” who revealed
the victim’s apartment number and that the victim was going to receive a check. When
Armstrong gave his statement to Sergeant Shafer, he told the truth but had been
handcuffed to a chair for six hours and “was just trying to get out of there.” He
acknowledged that he did not tell Sergeant Shafer that any of the Appellants hit the
victim. He also acknowledged that without the State’s plea deal, he was facing fifty-one
years in prison.
Donna Nelson, a special agent forensic scientist with the Tennessee Bureau of
Investigation (TBI) testified as an expert in DNA analysis that she tested the swabs
collected from the victim’s apartment and compared them to DNA samples collected
from the victim, the Appellants, and Robert Armstrong. Blood on the living room wall
matched the victim’s blood, and blood in the bathroom partially matched the victim.
Agent Nelson excluded the Appellants and Armstrong as contributors to the blood in the
bathroom. Agent Nelson said that, based on the test results, she believed the victim bled
in the living room and the bathroom.
On cross-examination by counsel for the Appellants, Agent Nelson acknowledged
that she did not find the Appellants’ DNA in the apartment. She did not receive DNA
samples from Terrell Vaughn or Jerrico Ware for testing.
Erica Curry testified as an expert in forensic pathology that she performed the
victim’s autopsy. The victim’s hospital records indicated that the following bones were
broken in his face: his upper left jaw, both cheekbones, the bones “close to his jaw in the
back,” the bones surrounding his sinuses, his frontal and maxillary sinuses, his eye
sockets, and his hard palette. The victim’s fractures were caused by blunt force trauma.
On July 31, 2012, surgeons “put plates and screws” in the victim’s face to stabilize and
align the bones for healing.
Dr. Curry testified that in addition to the fractures, the victim had bleeding behind
his eyes, which caused his eyes to bulge, and bleeding in his sinuses. An MRI showed
hemorrhaging on both sides of his brain, and the bleeding would have affected his brain’s
function. Physician notes stated that the victim suffered a “‘traumatic brain injury.’” Dr.
Curry said the notes indicated that the victim “was unconscious and he would go in and
out of being alert and knowing his surroundings, to being unresponsive with not knowing
where he was.”
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Dr. Curry testified that the victim had the following pre-existing conditions:
Sarcoidosis; AIDS, not HIV; hypertension; chronic obstructive pulmonary disease; and
chronic sinusitis. She explained that a person, such as the victim, with significant
underlying disease would have more difficulty recovering from injuries than a healthy
person. Tubes in a person’s throat and stomach also “sets them up for infection,” and a
person with AIDS could not fight off infections like a normal person. After the victim’s
surgery on July 31, he developed bedsores and an infection in his eyes. He then
developed sepsis, an infection in his blood. Dr. Curry explained that people with head
trauma had an increased risk for seizures and that the victim had a seizure on September
29. He died on September 30. Dr. Curry said she determined that “his cause of death
meaning the initiating event that led to his death was the blunt head trauma.”
On cross-examination by counsel for Appellant Buford, Dr. Curry testified that
she did not recall seeing in the victim’s hospital records that he was diabetic. She said
that she saw bedsores on his buttocks during the autopsy but that they “weren’t that bad.”
She also saw scrapes on the victim’s back, left ear, right shoulder, and right arm and
multiple scars on his arms and legs. Discoloration of the victim’s lungs indicated he
probably smoked. Dr. Curry said the victim’s toxicology tests were positive for
Lorazepam, which was often used for sedation or to treat seizures, and morphine for pain.
On cross-examination by counsel for Appellant Hopkins, Dr. Curry acknowledged
that the victim’s heart was enlarged and that he suffered from chronic kidney disease and
possibly diabetes. His medical records showed that he had a staph infection in June
2012. Regarding his pre-existing conditions, Dr. Curry stated that the victim “was not
well” prior to July 25 and that the conditions “didn’t make the injury that he received any
better for him to heal from.”
On cross-examination by Appellant Terrell, Dr. Curry testified that the victim did
not have any skull fractures. He also did not have any bleeding of his brain at the time of
the autopsy. His brain had some swelling but was normal otherwise. Dr. Curry
acknowledged that the victim’s hospital records listed twelve medical conditions at the
time of his death and that “respiratory failure” was listed first while “history of traumatic
brain injury” was listed twelfth. Dr. Curry said the list was insignificant to her regarding
the victim’s cause and manner of death. She explained:
So there is a such thing as the cause of death like I said which is the
initiating chain of events and then there is a such thing as the proximate
cause of death, meaning the thing that caused the death immediately. So
what hospital clinicians tend to do is list all the diagnoses that they think
caused the immediate cause of death. And so they just go through and they
list everything. And then a lot of times they don’t even list things in order
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of importance. To them it’s just a running list of what they can look at and
document in the chart. So to me it doesn’t have any significance.
On redirect examination, Dr. Curry testified that a normal, healthy person would
have been able to recover from the victim’s injuries. However, the victim’s age and
underlying medical conditions made his injuries more significant. Dr. Curry
acknowledged that the victim would not have been in the hospital if he had not been
beaten. At the conclusion of Dr. Curry’s testimony, the State rested its case-in-chief.
Jerrico Ware testified for Appellant Terrell that he and Robert Armstrong were
cousins. He said that he played basketball in the park almost every sunny day, that he did
not know the victim, and that he had never seen the victim in the park. Ware said that he
thought Terrell Vaughn knew the victim and that he went with Vaughn to the victim’s
apartment on the night of July 25 so that Vaughn could get money from the victim. Ware
acknowledged that he was recorded on video in the victim’s apartment building and that
his shirt was covering his face. He said, though, that “I couldn’t have been hiding my
face because if that was the case, why [wasn’t Vaughn] hiding his face. . . . I probably
was wiping my face, anything, or laughing at him.” Ware later saw Armstrong at the
Citgo gas station. They spoke to each other, but they did not have a conversation.
On cross-examination by the State, Ware acknowledged that July 25 was
Armstrong’s birthday and said that he spent most of the day with Armstrong. That night,
Ware and Terrell Vaughn went to the victim’s apartment and knocked on the door. No
one answered, so they left. Ware said he did not know if he and Vaughn went to the
victim’s apartment before or after the victim was attacked, that he did not know video
cameras were in the building, and that he was not hiding his face with his shirt. When
Ware and Vaughn saw Armstrong at the Citgo that night, the Appellants may have been
with Armstrong. Ware denied that Armstrong said he had just robbed and beaten the
victim or that Armstrong bragged about the robbery. Ware said Armstrong told him the
next day that Armstrong and the Appellants had robbed the victim. Ware acknowledged
telling Sergeant Shafer that the robbery occurred about 7:45 p.m. However, Ware told
the jury that he did not know what time the robbery occurred. Although Ware had said
on direct examination that he had never seen the victim in the park prior to July 25, he
stated on cross-examination by counsel for Appellant Hopkins that he had seen the victim
in the park.
On redirect examination, Ware testified that he did not remember telling Sergeant
Shafer that he covered his face because he did not like cameras. He said he also did not
remember telling Sergeant Shafer that he did not want to be seen going to the victim’s
apartment because the victim was “gay.”
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Seventeen-year-old Terrell Vaughn testified for Appellant Terrell that he was
fourteen years old in July 2012 and that he used to play basketball in the park with the
Appellants. He said the victim would sit on a bench at the basketball court, watching
people play basketball. One day, the victim bought a drink for Vaughn, and Vaughn sat
on the bench. Vaughn said that the victim offered to buy him a pair of shoes and that he
thought the victim was trying to be “like a mentor or something.” Vaughn stated that the
victim invited him to the victim’s apartment a few times and that the victim “came on to
him” sexually in the apartment. One time on the basketball court, the victim tried to
touch Vaughn’s lower back while Vaughn’s shirt was off. Vaughn said, “I knocked his
hand out and I told him I don’t get down like that.” Vaughn acknowledged that he was
mad at the victim for trying to touch him, that he wanted to “punch” the victim, and that
he told Appellant Terrell about the victim’s behavior. On July 25, 2012, Vaughn saw
Robert Armstrong and the Appellants at the Citgo gas station, but Vaughn did not talk to
Armstrong. He said he did not remember saying in his statement to police that
Armstrong showed him a telephone that Armstrong had taken from the victim.
On cross-examination by the State, the State showed Vaughn his written statement
to police, and he acknowledged signing it. He also acknowledged that he never said in
his statement that the victim tried to touch him. However, he said in his statement that he
told the Appellants he wanted to hit the victim but did not because the victim was “old.”
The State asked Vaughn various questions about what he said in his statement, and he
repeatedly answered that he did not remember. Vaughn even told the jury, “I can’t
remember nothing I put in that statement.” He acknowledged that he and Jerrico Ware
went to the victim’s apartment after he saw Armstrong and the Appellants at the Citgo
but said, “I didn’t want to go to [the victim’s] house. Jerrico did.” Vaughn and Ware
entered the victim’s apartment building through the back door and went up to the seventh
floor. They knocked on the victim’s door, and a neighbor saw them knocking. Nobody
answered the door, so they left. Vaughn denied knowing that the victim had been beaten,
stating, “If I knew he [had] been beat, I wouldn’t have never went to his apartment.”
Vaughn later talked with the police because he saw himself on the television news.
On cross-examination by counsel for Appellant Hopkins, Vaughn acknowledged
that he was handcuffed while he gave his statement. Counsel asked if he read through his
statement thoroughly before he signed it, and Vaughn answered, “Not pretty much
because they said that I wasn’t going to get charged with it and they would let me go.”
He acknowledged that the victim tried to have a relationship with him and that the victim
“promised [him] things.” On cross-examination by Appellant Buford, Vaughn
acknowledged that he thought the victim wanted sexual favors from him.
Romaris Partee testified for Appellant Terrell that he was Terrell Vaughn’s cousin
and played basketball with Vaughn. He said that he would see the victim in the park and
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that he witnessed the victim try to touch Vaughn’s back. Partee said that Vaughn “just
moved his arm . . . and [was] shaking his head” and that Vaughn did not want the victim
to touch him. Partee acknowledged that the victim’s attempt to touch Vaughn appeared
inappropriate.
On cross-examination by the State, Partee acknowledged that he and the
Appellants were friends and that he looked up to them. He said that he did not think the
Appellants were present when the victim tried to touch Vaughn but that Vaughn may
have told them about it. Partee was nineteen years old at the time of trial but fifteen in
July 2012.
Sergeant Jerry Chatman of the MPD testified on rebuttal for the State that he
helped interview Terrell Vaughn on July 31, 2012. The State had him read Vaughn’s
statement to the jury as follows: Vaughn “figured out a couple [of] weeks ago” that the
victim was “gay.” The victim was “constantly making gay comments” to Vaughn, and
Vaughn “was tired of his comments.” Vaughn told Appellant Terrell about “how [the
victim] tried [Vaughn],” and Appellant Terrell asked if the victim had some money.
Vaughn told Appellant Terrell that the victim received checks every month. Vaughn last
saw the victim at the end of June; the victim was walking across the park with his
grandchildren. One day the week before Vaughn gave his statement, Vaughn was on the
basketball court with Jerrico Ware, Appellant Terrell, and Robert Armstrong and told
them that the victim was going to receive his check in a couple of days. Appellant
Terrell, Ware, and Armstrong started “saying they was going to go beat” the victim. On
July 25, Vaughn was with Ware and saw Appellant Terrell and Armstrong come out of
Appellant Buford’s house. About forty minutes later, Vaughn saw “them” at the Citgo,
and “[t]hey” were all laughing. Vaughn asked what happened, and Appellant Terrell told
Vaughn that he “just beat the old dude named Jessie” and took the victim’s wallet.
Appellant Terrell was carrying a backpack and asked if Vaughn wanted to buy something
out of the backpack. Vaughn told him no. Vaughn “asked where they got that from and
[Appellant Terrell] said they got it when they beat Jessie.” Appellant Terrell showed the
victim’s wallet to Vaughn and said the victim was “beat real bad and bleeding out his
mouth.” Armstrong told Vaughn that he went through the victim’s belongings and took
the victim’s cellular telephone. Armstrong showed the telephone to Vaughn.
Sergeant Chatman testified that after he took Vaughn’s statement, he typed it out
for Vaughn. He said that suspects and witnesses were shackled to a bench during
interviews for officer safety but that they were offered food and water and allowed to go
to the bathroom. He said he was “sure” Vaughn received those same opportunities.
On cross-examination by counsel for Appellant Buford, Sergeant Chatman
testified that he did not know how long Vaughn was shackled to the bench prior to giving
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his statement but that it was probably more than one hour. Vaughn spoke with the
officers for at least another hour, and then Sergeant Chatman had to type Vaughn’s
statement.
On cross-examination by counsel for Appellant Hopkins, Sergeant Chatman
testified that Vaughn was fourteen years old at the time of the interview and was not free
to leave. Vaughn’s mother gave permission for the interview, and a female family
member was present during the interview. Sergeant Chatman said he did not know if the
family member was a high school graduate of if she could read or write. Sergeant
Chatman said Vaughn “seemed competent and aware of what was going on and aware of
what he was doing and why he came down.” Sergeant Chatman acknowledged that
Vaughn appeared to be of average intelligence for his age and that Vaughn signed the
statement after Sergeant Chatman read it to him.
At the conclusion of Sergeant Chatman’s testimony, the jury convicted the
Appellants as charged of first degree felony murder committed during the perpetration of
or the attempt to perpetrate robbery in count one; first degree felony murder committed
during the perpetration of or the attempt to perpetrate kidnapping in count two;
aggravated robbery, a Class B felony, in count three; and especially aggravated
kidnapping, a Class A felony, in count four. The trial court immediately sentenced the
Appellants to life for the murder convictions. After a sentencing hearing, the trial court
merged the murder convictions and sentenced Appellant Buford to concurrent sentences
of twelve years for aggravated robbery and fifteen years for especially aggravated
kidnapping and Appellants Terrell and Hopkins to concurrent sentences of eight years for
aggravated robbery and fifteen years for especially aggravated kidnapping.
II. Analysis
A. Jury Instructions
1. “Killing” in First Degree Felony Murder Instruction
The Appellants contend that the trial court erred by deleting the word “killing”
from portions of the jury instructions for first degree felony murder and that the error
lowered the State’s burden of proof. The State argues that the trial court properly
instructed the jury. We agree with the State.
During a recess in the trial, the trial court advised the parties that, due to the
victim’s “delayed death,” it was going to include a cause-of-death instruction in the final
charge. Later, as the parties and the trial court were reviewing the final written
instructions, counsel for Appellant Terrell noted that the written instructions for first
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degree felony murder varied from the pattern instruction and requested that the trial court
give the pattern instruction. However, the trial court refused, explaining that the pattern
instruction “doesn’t really make a lot of sense in a situation where the person lingers” and
that “to make the causation instruction make sense, you’ve got to modify that to the actus
reus. Otherwise you’ve got two conflicting causations problems here.”
During the final jury charge, the trial court gave an instruction on first degree
felony murder that closely tracked Tennessee Pattern Jury Instruction 7.03 for first degree
felony murder. However, the trial court replaced the word “killing” in portions of the
pattern instruction with “act or acts causing the death of the victim,” which we have
bolded:
For you to find a defendant guilty of this offense, the State must
have proven beyond a reasonable doubt the existence of the following
essential elements: One, that the defendant, or one for whom the defendant
is criminally responsible, unlawfully killed Jessie Wilson; and two, that the
act or acts causing the death of the victim was committed in the
perpetration of or the attempt to perpetrate the alleged robbery [or
kidnapping]; that is, that the act causing the death of the victim was
closely connected to the alleged robbery [or kidnapping] and was not a
separate, distinct, and independent event; and three, that the defendant
intended to commit the alleged robbery [or kidnapping].
....
The intent to commit the underlying felony of robbery [or
kidnapping] must exist prior to or concurrent with the commission of the
act or acts causing the death of the victim. Proof that such intent to commit
the underlying felony existed before, or concurrent with, the act or acts
causing the death of the victim is a question of fact to be decided by the
jury after consideration of all the facts and circumstances.
Consideration of such factors as time, place and causation is helpful
in determining whether the act or acts causing the death of the victim
was committed in the perpetration of the alleged robbery [or kidnapping].
The act or acts causing the death of the victim may precede, coincide
with, or follow the robbery [or kidnapping] and still be considered as
occurring in the perpetration of the robbery [or kidnapping], so long as
there is a connection in time, place and continuity of action.
- 16 -
See T.P.I. - Crim. 7.03. The Appellants contend that by changing the word “killing” to
“act or acts causing the death of the victim,” the trial court “signaled to the jury that it
could find the Appellants guilty if the jury believed that the Appellants’ assault of the
victim could in any way be linked tangentially to [the victim’s] death.”
“It is well settled that a defendant has a constitutional right to a complete and
correct charge of the law, so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390
(Tenn. 2011). We have previously noted that “[w]e must review the entire [jury] charge
and only invalidate it if, when read as a whole, it fails to fairly submit the legal issues or
misleads the jury as to the applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn.
Crim. App. 1995). Generally, a charge “is erroneous if it fails to fairly submit the legal
issues or if it misleads the jury as to the applicable law.” State v. Hodges, 944 S.W.2d
346, 352 (Tenn. 1997). “In order to determine whether a conviction should be reversed
on the basis of an erroneous instruction to the jury, this Court must consider whether the
ailing instruction by itself so infected the entire trial that the resulting conviction violates
due process.” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (citations omitted).
“An instruction should be considered prejudicially erroneous only if the jury charge,
when read as a whole, fails to fairly submit the legal issues or misleads the jury as to the
applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005).
Initially, we note that pattern jury instructions are “only suggestions for a trial
court” and “not entitled to any particular deference on review.” State v. Rimmer, 250
S.W.3d 12, 30 (Tenn. 2008). In any event, the trial court did not always replace the word
“killing” in the pattern instruction with “act or acts causing the death of the victim.” For
example, the trial court advised the jury that the first element of first degree felony
murder was that the Appellants unlawfully “killed” the victim. Later in the first degree
felony murder instructions, the trial court instructed the jury that “[w]hen one enters into
a scheme with another to commit a robbery [or kidnapping] and death ensues, all
defendants entering into the scheme are responsible for the death regardless of who
actually committed the killing and whether the killing was specifically contemplated by
the other.” See T.P.I. - Crim. 7.03 (stating same).
Moreover, the trial court gave the following cause-of-death instruction, which
closely tracked the cause-of-death pattern instruction:
Before the defendant can be convicted of any degree of homicide,
the State must have proven beyond a reasonable doubt that the death of the
deceased was proximately caused by the criminal conduct of the defendant,
by the conduct of another for whom the defendant is criminally responsible,
or both. The proximate cause of a death is that cause which, in natural and
- 17 -
continuous sequence, unbroken by any independent intervening cause,
produces the death and without which the death would not have occurred.
The defendant’s conduct, or the conduct of one for whom the
defendant is criminally responsible, need not be the sole or immediate
cause of death. The acts or omissions of two or more persons may work
concurrently to proximately cause the death, and in such a case, each of the
participating acts or omissions is regarded as a proximate cause. It is not a
defense that the negligent conduct of the deceased may also have been a
proximate cause of the death.
However, it is a defense to homicide if the proof shows that the
death was caused by an independent intervening act or omission of the
deceased or another which the defendant, in the exercise of ordinary care,
could not reasonably have anticipated as likely to happen.
However, if, in the exercise of ordinary care, the defendant should
reasonably have anticipated the intervening cause, that cause does not
supersede the defendant’s original conduct, and the defendant’s conduct is
considered the proximate cause of death. It is not necessary that the
sequence of events or the particular injury be foreseeable. It is only
necessary that the death fall within the general field of danger which the
defendant should have reasonably anticipated.
....
If some other circumstance caused the victim’s death, unrelated to
the defendant’s actions, that would be a defense to homicide unless the
circumstance was the natural result of the defendant’s act.
If there is evidence in this case that the deceased required medical
attention as a result of injuries that may have been unlawfully inflicted by
the defendant, or one for whom the defendant is criminally responsible, and
if you find that such treatment itself may have contributed to the death of
the deceased, then you must determine whether the [medical] treatment is
of such a character as to relieve the defendant of the responsibility for the
death.
One who unlawfully and seriously injures another to the extent that
medical attention is required bears the risk that improper treatment may
result in the death of the injured person. If the defendant, or one for whom
- 18 -
the defendant is criminally responsible, unlawfully and seriously injured the
deceased, he is not relieved of responsibility unless the treatment was
performed in a grossly negligent and unskillful manner and unless it was
the sole cause of the death.
If you find that the defendant’s acts or the acts of a person for whom
the defendant is criminally responsible, or the acts of both, if any, did not
unlawfully cause or contribute to the death of the deceased, or if you have a
reasonable doubt as to this proposition, then you must find him not guilty.
See T.P.I. - Crim. 42.14.
The cause-of-death instruction was extensive and specifically advised the jury that
in order to find the Appellants guilty of first degree felony murder, the State must have
proven beyond a reasonable doubt that they proximately caused the victim’s death.
Therefore, given the jury charge as a whole, we conclude that the jury instructions for
first degree felony murder did not mislead the jury as to the applicable law and did not
lower the State’s burden of proof.
2. Failure to Instruct on Underlying Felonies for First Degree Felony Murder
Appellant Buford also contends that the trial court erred by failing to list the
elements for the underlying felonies, i.e., robbery and kidnapping, when it was
instructing the jury on counts one and two of first degree felony murder. The State
argues that Appellant Buford has waived this issue because he failed to object at trial and
that he is not entitled to plain error relief. We agree with the State.
The Appellant failed to object to the jury instructions regarding this issue. See
Tenn. R. App. P. 36(a). Nevertheless, we can review the issue for plain error. Tenn. R.
App. P. 36(b); State v. Knowles, 470 S.W.3d 416, 423 (Tenn. 2015).
The Appellant does not contend that the instructions for first degree felony murder
were incorrect but contends that the instructions were incomplete because the trial court
did not list the elements for the underlying offenses of robbery and kidnapping “until
pages 18 and 26 of the written jury instructions.” The pattern jury instruction for first
degree felony murder provides that the trial court is to state the elements of the
underlying felony. See T.P.I. - Crim. 7.03. However, instead of providing the elements
of robbery and kidnapping in the first degree felony murder instructions, the trial court
stated that the “essential elements necessary to constitute robbery [and kidnapping] will
be defined below.” The trial court did not instruct the jury on the elements of robbery
- 19 -
and kidnapping until it instructed the jury on the lesser-included offenses of aggravated
robbery in count three and especially aggravated kidnapping in count four.
Although the better practice would have been for the trial court to list the elements
of the underlying felonies in the first degree felony murder instructions, the trial court
advised the jury that it would define the elements of the underlying felonies “below” and
eventually did so. Thus, we cannot say that a clear and unequivocal rule of law was
breached or that a substantial right of the accused was adversely affected. State v.
Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994); see Tenn. R. App. P. 36(b).
Accordingly, the Appellant is not entitled to plain error relief.
3. Facilitation Instruction
Appellant Buford contends that the trial court erred by failing to instruct the jury
on facilitation as a lesser-included offense of first degree felony murder because the jury
demonstrated that it was “willing to consider rendering a verdict for something less than
felony murder but a greater charge than second degree murder.” He also contends,
without any explanation, that the trial court erred by failing to instruct the jury on
facilitation of aggravated robbery as a lesser-included offense of aggravated robbery and
facilitation of especially aggravated kidnapping as a lesser-included offense of especially
aggravated kidnapping. The State argues that the Appellant has waived these issues
because he failed to request any instruction on facilitation and that he is not entitled to
plain error relief. We agree with the State.
After Appellant Terrell presented his witnesses, the trial court allowed the parties
to examine the prospective written jury instructions and suggest changes. Counsel for
Appellant Terrell noticed that the instructions included only second degree murder as a
lesser-included offense of first degree felony murder and requested that the trial court
also instruct the jury on voluntary manslaughter and reckless homicide. The trial court
refused and instructed the jury only on second degree murder as a lesser-included
offense.
During deliberations, the jury sent out a written note, asking two questions: (1) “Is
there an option for 2nd degree murder in the perpetration of or attempt to perpetrate
robbery?” and (2) “Is there an option for 2nd degree murder in the perpetration of or
attempt to perpetrate kidnapping?” The trial court asked how the parties thought the
court should answer the questions, and the State suggested that the court refer the jurors
to the page in the instructions that explained the order of their deliberations. Counsel for
Appellants Buford and Hopkins agreed with the State. Counsel for Appellant Terrell
suggested that the court tell the jury that “there is no second degree murder in the
perpetration of [a] felony in Tennessee” and then remind the jury about “the order of
- 20 -
consideration.” The trial court had the jury brought into the courtroom and stated, “The
answer [to your questions] is no.” The court then instructed the jury to consider the
offense of felony murder first and, if it found the Appellants not guilty of that offense,
consider his guilt for the lesser-included offense of second degree murder. The jury
resumed deliberations and returned guilty verdicts on first degree felony murder.
As noted by the State, none of the Appellants made oral or written requests for
instructions on facilitation. Tennessee Code Annotated section 40-18-110(c) provides
that when a defendant fails to make a written request for a lesser-included offense
instruction, the issue is waived and may not be presented as a ground for relief in a
motion for new trial or on appeal. See also State v. Martin, 505 S.W.3d 492, 503 & n.8
(Tenn. 2016). Thus, the issue has been waived. That said, we may review the failure to
give a lesser-included offense instruction for plain error. State v. Page, 184 S.W.3d 223,
230-31 (Tenn. 2006).
Relevant to this case, first degree felony murder is the “killing of another
committed in the perpetration of or attempt to perpetrate any . . . robbery [or] . . .
kidnapping. Tenn. Code Ann. § 39-13-202(a)(2). “A person is criminally responsible for
the facilitation of a felony, if, knowing that another intends to commit a specific felony,
but without the intent required for criminal responsibility under § 39-11-402(2), the
person knowingly furnishes substantial assistance in the commission of the felony.”
Tenn. Code Ann. § 39-11-403(a). “In other words, a person guilty of facilitation has
supplied substantial assistance to the principal without the intent to promote, assist in, or
benefit from the crime.” State v. Alex Goodwin, No. W2015-00813-CCA-R3-CD(C),
2017 WL 2472371, at *12 (Tenn. Crim. App. at Jackson, June 7, 2017) (citing State v.
Fowler, 23 S.W.3d 285, 287 (Tenn. 2000)), perm. app. denied, (Tenn. Oct. 6, 2017).
Facilitation of first degree felony murder is a lesser-included offense of first degree
felony murder. Tenn. Code Ann. § 40-18-110(f)(2). However, an instruction on a lesser-
included offense is not warranted unless
the record contains any evidence which reasonable minds could accept as to
the lesser included offense. In making this determination, the trial judge
shall view the evidence liberally in the light most favorable to the existence
of the lesser included offense without making any judgment on the
credibility of evidence. The trial judge shall also determine whether the
evidence, viewed in this light, is legally sufficient to support a conviction
for the lesser included offense.
Tenn. Code Ann. § 40-18-110(a). When a defendant claims that the trial court committed
plain error by failing to give a lesser-included offense instruction, “the defendant must
show a reasonable probability that ‘a reasonable jury would have convicted the defendant
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of the lesser-included offense instead of the charged offense.’” State v. Martin, 505
S.W.3d 492, 505 (Tenn. 2016) (quoting State v. Richmond, 90 S.W.3d 648, 662 (Tenn.
2002)).
Appellant Buford contends that a facilitation instruction was necessary because the
evidence “suggests that it was [Appellant] Terrell who suggested and planned the
aggravated robbery.” However, even so, video shows Appellant Buford going to the
victim’s apartment with his codefendants. Armstrong testified that Appellant Buford hit
the victim’s face repeatedly with his fists, rendering the victim unconscious; that
Appellant Hopkins took $140 out of the victim’s wallet; and that Appellant Hopkins
dragged the victim from the living room to the bathroom and bound him with neckties.
Appellant Buford told Sergeant Shafer that $141 was taken from the victim, that he
searched the living room for “more money,” and that he took juice and oatmeal pies. He
also stated that he saw the victim lying on the bathroom floor and that he never sought
help for the victim. In sum, the evidence shows that Appellant Buford was an active
participant in the beating, robbery, and kidnapping of the victim and that facilitation
instructions were not necessary. Therefore, he has failed to show that a clear and
unequivocal rule of law was breached or that one of his substantial rights was adversely
affected. See State v. Abraham Medina, Jr., No. W2014-02358-CCA-R3-CD, 2015 WL
6122265, at *6 (Tenn. Crim. App. at Jackson, Oct. 16, 2015), perm. to app. denied,
(Tenn. Feb. 19, 2016). Accordingly, he is not entitled to plain error relief. Adkisson, 899
S.W.2d at 641-42; see Tenn. R. App. P. 36(b).
B. Prosecutorial Misconduct
The Appellants claim that the trial court erred by allowing the State to engage in
prosecutorial misconduct during jury voir dire and closing arguments. The State
contends that the trial court did not err. We conclude that the Appellants are not entitled
to relief.
In order to prevail on a claim of prosecutorial misconduct, the Appellants must
demonstrate that the conduct committed by the prosecution was so inflammatory or
improper that it affected the verdict to his detriment. Harrington v. State, 385 S.W.2d
758, 759 (Tenn. 1965); State v. Gray, 960 S.W.2d 598, 609 (Tenn. Crim. App. 1997). In
making this determination, this court is guided by five factors:
1. The conduct complained of viewed in context and in light of the facts
and circumstances of the case.
2. The curative measures undertaken by the court and the prosecution.
- 22 -
3. The intent of the prosecutor in making the improper statement.
4. The cumulative effect of the improper conduct and any other errors in
the record.
5. The relative strength or weakness of the case.
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also State v. Buck,
670 S.W.2d 600, 609 (Tenn. 1984). We note that “the Judge factors should only be
applied to claims of improper prosecutorial argument,” as in this case, not claims of
unconstitutional prosecutorial comment. State v. Jackson, 444 S.W.3d 554, 591 n.50
(Tenn. 2014). “[T]he State bears the burden of proving unconstitutional prosecutorial
comment or argument harmless beyond a reasonable doubt, whereas a defendant bears
the burden of proving prejudice when prosecutorial argument is merely improper.” Id.
Regarding prosecutorial misconduct during closing arguments, it is well-
established that closing argument is an important tool for both parties during a trial; thus,
counsel is generally given wide latitude during closing argument, and the trial court is
granted wide discretion in controlling closing arguments. See State v. Carruthers, 35
S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such, arguments 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).
In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial
misconduct” that can occur during closing argument: (1) intentionally misleading or
misstating the evidence; (2) expressing a personal belief or opinion as to the truth or
falsity of the evidence or defendant’s guilt; (3) making statements calculated to inflame
the passions or prejudices of the jury; (4) injecting broader issues than the guilt or
innocence of the accused; and (5) intentionally referring to or arguing facts outside the
record that are not matters of common public knowledge. “In determining whether
statements made in closing argument constitute reversible error, it is necessary to
determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).
First, the Appellants take issue with statements made by one of the prosecutors
during jury voir dire. During the State’s questioning of the potential jurors, the
prosecutor said that he was going to give them “a hypothetical.” He then stated as
follows:
- 23 -
[Counsel for Appellant Terrell] decides he’s going to kidnap -- he’s going
to kidnap [a female potential juror]. He knows [she] has a lot of family
money, right, she’s a rich woman. He knows all about her and he’s
followed her for a couple weeks, knows her patterns.
She leaves work, leaves work from the back door and it’s usually
late and no one will be around. He develops this plan.
At that point, counsel for Appellant Terrell objected “to hypotheticals about me
kidnapping members of the jury.” The trial court stated, “All right. I’ll give you some
freedom but I’ll also allow you to do your hypotheticals too.” The prosecutor stated that
he did not want to offend counsel and continued with his hypothetical but used a potential
juror as the kidnapper.
We think the prosecutor’s referring to counsel as a kidnapper was, at best, in poor
taste. However, counsel objected to the prosecutor’s statements. The prosecutor said that
he did not want to offend counsel and immediately changed the name of the kidnapper.
Therefore, we do not think the prosecutor’s statements prejudiced the Appellants.
Next, the Appellants contend that the second prosecutor attempted to bolster the
State’s case by saying during the State’s initial closing argument, “I think the State has
proven their case beyond a reasonable doubt.” Counsel for Appellant Terrell objected to
the prosecutor’s “expression of a personal opinion,” and the trial court stated that “you
can change it to I submit.” The prosecutor then stated, “The State submits that there’s
enough evidence to prove beyond a reasonable doubt that [the Appellants] are guilty.”
As this court has stated previously, “A prosecutor’s use of the phrases ‘I think,’ or ‘I
submit’ does not always indicate a prosecutor’s personal opinion.” State v. Dwight
Gossett, No. W2013-01120-CCA-R3-CD, 2014 WL 6609353, at *15 (Tenn. Crim. App.
at Jackson, Nov. 21, 2014). In our view, the prosecutor was not attempting to convey his
personal belief but was commenting on the strength of the State’s case. Therefore, we do
not think his statement was improper.
The Appellants next claim that the second prosecutor personally attacked their
counsel, accused their counsel of “intentional trickery,” and tried to inflame the jury
when he stated as follows:
[Counsel for Appellant Terrell] during his opening said Jessie
Wilson was a sick man. Well what 61 year old doesn’t have some type of
health issues, okay? The State is not arguing with that. Jessie did have
some health issues. But Jessie Wilson would have never been in that
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hospital if they didn’t do what they did to him. And I think the bottom line
and y’all have to remember this is that’s why Jessie was in the hospital.
Don’t get fooled. Don’t buy their argument. Just keep that in mind when
you’re back there.
....
Now another thing that’s come out during this trial is that, you
know, the victim is -- pedophilia. I think [counsel for Appellant Terrell]
said that at the beginning, that he was into young, hot sweaty young boys.
That’s what he said. There’s been some proof of that in their case they put
on. The State is not asking you to find that Jessie Wilson was a man of
great character. The State is not asking you to find that Jessie Wilson was a
good person or bad person.
You know, what do you do when the law and the facts are not on your side?
What do you do when you don’t have much to argue? You bash the victim.
You bash his character, say the victim was a bad person, say the victim was
an evil person. You focus on the victim and his bad qualities.
And I anticipate they’re about to get up here and talk about that. But
when I sit down, you need to remember this isn’t the trial to bash Jessie
Wilson’s character, okay. You do that when you don’t have much to argue,
when the law and the facts aren’t on your side. Bash the victim, throw the
victim under the bus, make you hate the victim. But just remember the
evidence about July 25, 2012, remember.
Counsel for Appellant Terrell objected to “the inappropriate comments about opposing
counsel trying to make you hate the victim.”
The prosecutor’s statements criticizing the tactics of defense counsel were
improper. “The prosecution is not permitted to reflect unfavorably upon defense counsel
or the trial tactics employed during the course of the trial.” State v. Garner Dwight
Padgett, No. M2003-00542-CCA-R3-CD, 2004 WL 2359849, at *12 (Tenn. Crim. App.
at Nashville, Oct. 21, 2004).
Nevertheless, applying the Judge factors, we conclude that the prosecutor’s
comments did not affect the verdicts. See Tenn. R. Crim. P. 36(b). First, we consider the
improper statements in context of the case as a whole. The Appellants’ theory of the case
was that the victim was a pedophile who was having a sexual relationship with Robert
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Armstrong and who had propositioned Terrell Vaughn for sex; therefore, Armstrong and
Vaughn had a motive to physically harm the victim. During opening statements, counsel
for Appellant Terrell told the jury that the victim “probably . . . suffered from what we
call pedophilia.” However, the proof never showed that the victim was having a sexual
relationship with Armstrong or that the victim’s conduct toward Vaughn had anything to
do with the crimes. Even Vaughn, who testified for Appellant Terrell that the victim
tried to touch his bare back and propositioned him, never suggested that the crimes were
related to the victim’s conduct toward him. Therefore, we believe the prosecutor’s
comments were prompted by the Appellants’ accusing the victim of being a pedophile
and introducing evidence during the trial that ended up having little, if any, relevance to
the crimes. Regarding the second factor, curative measures, defense counsel objected to
the prosecutor’s statements, but the trial court did not issue a specific ruling on the
objection or immediately provide a curative instruction. At the conclusion of closing
arguments, though, the trial court instructed the jury to base its verdicts on the evidence,
not the statements of counsel. Generally, we presume that a jury has followed the trial
court’s instructions. See State v. Butler, 880 S.W.2d 395, 399 (Tenn. Crim. App. 1994).
Regarding the third factor, the prosecutor’s intent, we cannot say that the prosecutor
acted in bad faith. Fourth, regarding the cumulative effect of the error, as we will explain
below, we also conclude that the trial court erred by failing to give the jury a limiting
instruction pursuant to Bruton. However, the evidence in this case was overwhelming.
Therefore, we conclude that the Bruton error, combined with the improper argument,
does not warrant reversal.
The Appellants also take issue with the following statements made by the first
prosecutor during his rebuttal closing argument:
They have taken tremendous liberties with the proof. Why do they
want to deceive you? The facts are not in their favor. The law is not in
their favor. Let’s make Jessie Wilson look like an evil person. Even if he
is an evil person, right, well let’s prosecute him. If Jessie Wilson is so
awful, let’s prosecute him for what he’s done wrong. You don’t take him
out back and [beat] the hell out of him, beat his face to a pulp.
They get the privilege of a trial. They don’t get the death penalty.
Jessie Wilson did --
Counsel for all three of the Appellants interrupted the prosecutor and objected. The trial
court stated that it thought the prosecutor was “essentially trying to say the victim didn’t
get a trial, he got executed. And I think he’s just doing it in a dramatic fashion.” The
trial court overruled the objections.
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The Appellants contend that the prosecutor’s speaking about the death penalty was
“clearly improper,” “furthered the State’s pattern of systematically attempting to
engender hatred” toward defense counsel, and was designed to inflame the passions of
the jury. However, we believe the prosecutor made the remarks in response to counsel
for Terrell Vaughn stating in his closing argument that Vaughn went to the victim’s
apartment after the Appellants and “[took] justice into his own hands.” Therefore, we
agree with the trial court that the prosecutor’s statement, while dramatic, was not
improper. In any event, given the proof, we do not believe the prosecutor’s argument
affected the verdict. See Tenn. R. App. P. 36(b).
Finally, the Appellants contend that the following statements made by the first
prosecutor during his rebuttal closing also were improper.
[Counsel for Appellant Terrell] asked [Dr. Curry] lots and lots of
questions about medical errors, medical errors, medical errors. He never --
he never actually pointed out one. He never got Dr. Curry to point out that
there was any problem with the [victim’s] treatment.
After the prosecutor finished his rebuttal closing, counsel for Appellant Terrell objected,
arguing that the prosecutor gave a “burden-shifting argument.” The trial court noted that
counsel should have objected contemporaneously but said that it would give a curative
instruction. The court instructed the jury that it was “to base your decision in this
courtroom on the evidence that you heard from the witness stand, not from anything that
the lawyers say in this courtroom.”
The Appellants claim that the prosecutor’s argument shifted the burden of proof
by insinuating that they had to prove an intervening cause of death for the victim in order
for the jury to find them not guilty of first degree felony murder. We disagree. During
closing argument by counsel for Appellant Terrell, he argued that a medical procedure in
the hospital could have caused the victim’s death. Therefore, we believe the prosecutor
was responding to counsel’s argument. Moreover, the cause-of-death instruction advised
the jury on how it was to consider the victim’s medical treatment and that it was the
State’s burden to prove beyond a reasonable doubt that the Appellants’ conduct was the
proximate cause of the victim’s death. Thus, we conclude that the Appellants are not
entitled to relief.
C. Codefendants’ Statements
Appellant Buford contends that the trial court erred by refusing to sever his trial
from that of Appellants Hopkins and Terrell and that severance was warranted by the
State’s use of his and Appellant Terrell’s written confessions in violation of Bruton v.
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United States, 391 U.S. 123 (1968). In a related argument, Appellants Hopkins and
Terrell contend that the trial court erred by allowing Sergeant Shafter to testify about the
two confessions in violation of Bruton. Moreover, all three of the Appellants argue that
the trial court erred by failing to give a limiting instruction as required by Bruton. The
State argues that the trial court did not err by denying the severance motions and
admitting the confessions because the trial court properly redacted the Appellants’
statements. We conclude that the trial court erred by failing to give a limiting instruction
but that the error was harmless.
Before trial, Appellant Buford filed two motions to sever his trial. During a
hearing on the motions on the first morning of trial, counsel for Appellants Hopkins and
Terrell stated that they opposed the motions to sever but that the trial court should
prohibit the State from admitting the confessions of Appellants Buford and Terrell into
evidence pursuant to Bruton. The State said that it did not intend to introduce any written
confessions into evidence but that it had redacted the confessions and intended to
question Sergeant Shafer about them. Defense counsel argued that redacting the
confessions was insufficient to cure the Bruton problem because the redacted confessions
still implicitly incriminated codefendants. The State gave copies of the redacted
confessions to the trial court and advised the court that it had removed all references to
codefendants. The court reviewed the redacted confessions with the parties and ordered
further redaction. The trial court denied Appellant Buford’s motion to sever and ruled
that the State could question Sergeant Shafer about the redacted confessions as modified.
On direct examination, Sergeant Shafer testified as follows regarding the
confessions of Appellants Buford and Terrell:
Q Did Mr. Buford incriminate himself with regard to Jessie Wilson?
A Yes, sir.
Q In his statement did he give you indication of what he did himself?
A He did.
....
Q Did you ask him this question: In your own words describe what
occurred, before, during, and after this incident. Were you a suspect?
A Yes.
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Q And can you see there what his response was about what he did?
A Yes.
Q What did he tell you?
A I was searching the front room near the couch for more money. I
went into the refrigerator and got some juice and oatmeal pies.
Q Now the next question down. Did you ask him this question: After
Jessie was initially assaulted, what did he say, if anything?
A Yes.
Q What was his response?
A He wasn’t saying anything but it sounded like he was snoring.
Q Did you ask him this question: Were you at all concerned for Jessie
at this point?
A Yes, I did ask him that.
....
Q What was his answer?
A No, sir. I was just trying to get out and leave.
Q Did you ask him this question: Exactly how much money and what
other property was taken from Jessie?
A Yes, sir.
Q What was Mr. Buford’s answer?
A $141 and some food.
Q Did you ask him this question: Describe the injuries you observed
Jessie to have?
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A Yes, I did.
Q What was his answer?
A He only had a couple of knots on his face.
Q Did you ask him the question: Was he speaking after he was
assaulted?
A I did ask him that.
Q What did he say?
A No, sir.
Q Did you ask him this question: Was Jessie able to defend himself
once he was assaulted?
A I did ask him that.
Q What was Ashton Buford’s response?
A No, sir.
Q Did you ask him was Jessie bleeding from this assault?
A I did.
Q His answer?
A No, when I saw him.
Q Did you ask him: Was Jessie standing or lying on the floor in the
bathroom?
A I did.
Q His answer?
A Lying.
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Q Did you ask him the question: At any point did you attempt to seek
medical treatment for Jessie?
A I did ask him.
Q His answer?
A No, sir.
Q Did you know Jessie prior to this incident?
A I did ask him that.
Q And his answer?
A No, sir.
....
Q Did [Devante Terrell] incriminate himself in this incident involving
Jessie Wilson?
A He did.
Q And let me ask you if you could turn to page 2. Did you ask this
question of him: . . . . In your own words, describe what occurred before,
during, and after this incident where you’re a suspect.
A I did.
Q And his response the next line down there?
A Terrell [Vaughn] told that Jessie was supposed to get some money.
....
Q What did he tell you next?
A I called [Jessie].
....
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Q What did he tell you next?
A Jessie thought I was Terrell [Vaughn]. I said I will be over there
about seven or eight. I knocked on the door. I shut the door. I told Robert
[Armstrong] to give me some juices.
Q Did you ask him the question: After Jessie was initially assaulted
what did he say, if anything?
A I did ask him that.
Q What did he say Jessie did?
A He was just yelling, quote, stop hitting me, what you hitting me for,
end quote.
Q Did you ask him to describe Jessie’s injuries?
A I did.
Q What was Devante Terrell’s response?
A Blood out of his mouth.
Q Did you ask him the question: When Jessie was on the living room
floor was he saying anything?
A I did ask him that.
Q And what did Devante say?
A No, just breathing hard.
Q Question: Were you concerned for Jessie’s well being? Did you ask
him that?
A I did.
Q What did Devante tell you?
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A Yeah, because there was too much blood coming out of his mouth.
Q Question: Did you seek medical treatment for Jessie?
....
A No.
Q Did you ask him to name all the property obtained off Jessie and out
of Jessie’s apartment during this incident?
A I did.
Q What did he say he got?
A I want to say money and a phone and then juices.
Q Question: Did you ask him this question: How much money was
taken from Jessie?
A I did.
Q And what was his response?
A It was $140.
Q And compared to Ashton Buford’s response on that issue, how much
money did Ashton Buford tell you he got?
A It was 140 or 141.
Q Now moving on down towards the bottom there, did you ask him
this question: How much did you get -- exactly how did you get Jessie’s
property out of his apartment?
A I did.
Q Excuse me. And what was Devante’s response?
A It was in the backpack that I was carrying.
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Q Is that consistent with the video that you obtained in this incident?
A Yes, sir.
Q Did you ask him this question: How did you get into Jessie’s
apartment?
A I did.
Q And the answer that he gave you about his participation?
A As soon as he opened the door I just busted in on him.
Q Did you ask him this question: Did you force your way into Jessie’s
apartment after Jessie opened the door?
A I did.
Q His answer?
A Yeah.
Q Question: What were you wearing during this incident?
A I think I had -- I did ask him that question.
Q And what was his answer?
A I think I had gym shorts on that day and a backpack.
Q Did you ask him the question: Did you know Jessie prior to this
incident?
A I did.
Q His answer?
A No.
Q Question: Have you ever been inside Jessie’s apartment prior to this
incident?
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A I did ask him that.
Q His response?
A No.
Q That’s all the questions I have.
We review a trial court’s determination regarding the severance of offenses for an
abuse of discretion. State v. Shirley, 6 S.W .3d 243, 247 (Tenn. 1999). “A holding of
abuse of discretion reflects that the trial court’s logic and reasoning was improper when
viewed in light of the factual circumstances and relevant legal principles involved in a
particular case.” State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999).
Tennessee Rule of Criminal Procedure 8(c)(1) permits joinder of defendants in the
same indictment “if each of the defendants is charged with accountability for each
offense included.” Tennessee Rule of Criminal Procedure 14(c)(1)(B) provides that “[i]f
a defendant moves for a severance because an out-of-court statement of a codefendant
makes reference to the defendant but is not admissible against the defendant,” the
prosecuting attorney may elect a joint trial “at which the statement is admitted in
evidence only after all references to the moving defendant have been deleted and if the
redacted confession will not prejudice the moving defendant.”
In Bruton, the United States Supreme Court held that allowing into evidence a
codefendant’s statement that implicated the defendant when the codefendant did not
testify violated the defendant’s right to confrontation. 391 U.S. at 126. However, a
Bruton violation can be avoided by redacting the codefendant’s statement and by
instructing the jurors that they can consider the codefendant’s incriminating statement
only as to that codefendant. Richardson v. Marsh, 481 U.S. 200, 208 (1987). Moreover,
according to the Advisory Commission Comments for Tennessee Rule of Criminal
Procedure 14, subdivision (c)(1) “deals with the Bruton issue [by] making severance
unnecessary where no Bruton violation would follow, as would be true, for example,
where the confessing codefendant testifies or where redaction eliminates any prejudice to
the nonconfessing codefendant.” Tenn. R. Crim. P. 14, Advisory Comm’n Cmt.
Turning to the instant case, the trial court carefully reviewed the two written
confessions with the parties and ordered that the State further redact the confessions so
that they did not implicate codefendants. For example, the trial court ordered that the
statements “I could hear licks from the bedroom” and “I don’t know exactly [how many
times the victim was struck because] after the first two licks, I turned my head and started
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searching” be redacted from Appellant Terrell’s confession because they implicated the
codefendants. As a result of the redactions, Appellant Buford’s confession did not
facially incriminate any of the Appellants but himself, and Appellant Terrell’s statement
did not facially incriminate any of the Appellants but himself. Bruton is limited to
situations in which “the codefendant’s confession ‘expressly implicat[ed]’ the defendant
as his accomplice” and does not extend to situations in which “the confession was not
incriminating on its face, and became so only when linked with evidence introduced later
at trial.” Richardson, 481 U.S. at 208 (quoting Bruton, 391 U.S. at 124 n.1); see State v.
Octavius Flynn, No. W2015-01648-CCA-R3-CD, 2017 WL 1861784, at *17 (Tenn.
Crim. App. at Jackson, May 5, 2017), perm. app. denied, (Tenn. Sept. 22, 2017).
Therefore, we conclude that the trial court did not abuse its discretion by denying
Appellant Buford’s motion to sever and that the Appellants’ confrontation rights were not
violated.
We note, though, that the trial court did not instruct the jurors that they could
consider Appellant Buford’s confession only against Appellant Buford and Appellant
Terrell’s confession only against Appellant Terrell. The State argues that the Appellants
have waived this issue because they failed to request a limiting instruction in writing and
did not object to a draft of the written instructions when the trial court gave them an
opportunity to review the written instructions before the trial court read them to the jury.
However, the trial court stated during the trial that it was going to give a limiting
instruction. The trial court failed to do so. Therefore, we do not agree that the issue has
been waived. That said, a trial court’s failure to give a limiting instruction may be
harmless error. State v. Person, 781 S.W.2d 868, 873 (Tenn. 1989). Given the
overwhelming evidence of the Appellants’ guilt, which we will summarize in the section
below, we conclude that the error was harmless.
D. Sufficiency of the Evidence
Appellant Buford claims that the evidence is insufficient to support his convictions
of first degree felony murder because the evidence fails to show that the facts and
circumstances of the underlying felonies were the proximate cause of the victim’s death
and his conviction of especially aggravated kidnapping because the State failed to show
that the victim’s removal or confinement exceeded that necessary to commit the
aggravated robbery. The State argues that the evidence is sufficient. We agree with the
State.
When an appellant challenges the sufficiency of the convicting evidence, the
standard for review by an appellate court 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
- 36 -
U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
concerning the credibility of witnesses and the weight and value to be afforded the
evidence, as well as all factual issues raised by the evidence, are resolved by the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the
circumstantial evidence for those inferences drawn by the jury. Id. Because a jury
conviction removes the presumption of innocence with which a defendant is initially
cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the
burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).
A guilty verdict can be based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140
(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and
‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting
Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “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)).
As stated previously, first degree felony murder in this case is the “killing of
another committed in the perpetration of or attempt to perpetrate any . . . robbery [or] . . .
kidnapping.” Tenn. Code Ann. § 39-13-202(a)(2). “No culpable mental state is required
for conviction . . . except the intent to commit the [underlying felony].” Tenn. Code Ann.
§ 39-13-202(b).
Robbery is defined as “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-
401(a). Kidnapping is defined as false imprisonment “under circumstances exposing the
other person to substantial risk of bodily injury.” Tenn. Code Ann. § 39-13-303(a).
False imprisonment occurs when a person “knowingly removes or confines another
unlawfully so as to interfere substantially with the other’s liberty.” Tenn. Code Ann. §
39-13-302(a). Kidnapping becomes especially aggravated kidnapping when the victim
suffers serious bodily injury. Tenn. Code Ann. § 39-13-305(a)(4).
Taken in the light most favorable to the State, the evidence shows that Terrell
Vaughn told Robert Armstrong and the Appellants that the victim was going to receive a
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“double” disability check and that Armstrong and the Appellants formulated a plan to rob
the victim. The plan included Armstrong and Appellant Hopkins waiting by the front
door while Appellants Burford and Terrell entered the apartment and subdued the victim.
On the night of July 25, 2012, the four of them went to the apartment, and Appellant
Terrell knocked on the door. The victim, thinking Appellant Terrell was Terrell Vaughn,
opened the door, and Appellant Terrell forced his way inside. Either Appellant Terrell,
Appellant Buford, or both beat the victim in the living room. Armstrong and Appellant
Hopkins entered the apartment and began looking for anything of value. Appellant
Buford beat the victim with his fists, fracturing multiple bones in the victim’s face and
rendering the victim unconscious. Armstrong and the Appellants took the victim’s
money, cellular telephones, juice, and cream pies; put the items into Appellant Terrell’s
backpack; and left the apartment.
Appellant Buford contends that the evidence does not show that the beating was
fatal and that the victim’s pre-existing medical conditions caused his death, which
occurred more than two months after the beating. However,
[o]ne who unlawfully inflicts a dangerous wound upon another is held for
the consequences flowing from such injury, whether the sequence be direct
or through the operation of intermediate agencies dependent upon and
arising out of the original cause. Odeneal v. State, 157 S.W. 419 (1913).
To convict the defendant, it is not necessary that his act or failure to act be
the sole cause, nor the most immediate cause of death. It is only necessary
that the defendant unlawfully contributed to the death of the deceased.
Letner v. State, 299 S.W. 1049 (1927).
State v. Roberson, 644 S.W.2d 696, 698 (Tenn. Crim. App. 1982).
Here, the evidence established the victim was able to walk, talk, run errands with
his daughter, and walk his granddaughters to the park earlier on the day he was beaten by
the Appellants. After the beating, though, he never regained full consciousness or the
ability to speak. Dr. Curry stated that while the victim’s age and pre-existing conditions
exacerbated his injuries, the blunt force trauma was his ultimate cause of death. In view
of the facts, we have no hesitation in concluding that the victim’s death was caused by
the unlawful acts of the Appellants. Thus, the evidence is sufficient to support Appellant
Buford’s convictions of first degree felony murder.
As to Appellant Buford’s claim that the evidence is insufficient to support his
conviction of especially aggravated kidnapping because it fails to show that the victim’s
removal or confinement exceeded that necessary to commit the aggravated robbery, we
initially note that the trial court properly instructed the jury pursuant to State v. White,
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362 S.W.3d 559 (Tenn. 2012). In White, our supreme court held, “To establish whether
the defendant’s removal or confinement of the victim constituted a substantial
interference with his or her liberty, the State must prove that the removal or confinement
was to a greater degree than that necessary to commit the offense of [insert offense],
which is the other offense charged in this case.” 362 S.W.3d at 580. In order for the jury
to make that determination, the court offered the following instruction:
[Y]ou may consider all the relevant facts and circumstances of the case,
including, but not limited to, the following factors:
• the nature and duration of the victim’s removal or
confinement by the defendant;
• whether the removal or confinement occurred during the
commission of the separate offense;
• whether the interference with the victim’s liberty was
inherent in the nature of the separate offense;
• whether the removal or confinement prevented the victim
from summoning assistance, although the defendant need not
have succeeded in preventing the victim from doing so;
• whether the removal or confinement reduced the
defendant’s risk of detection, although the defendant need not
have succeeded in this objective; and
• whether the removal or confinement created a significant
danger or increased the victim’s risk of harm independent of
that posed by the separate offense.
Id. at 580-81.
Taken in the light most favorable to the State, the evidence shows that after
Appellant Buford beat the victim into unconsciousness and Appellant Hopkins removed
the victim’s money from the victim’s wallet, Appellant Hopkins dragged the still-
unconscious victim into the bathroom and bound him with neckties. The victim remained
in the bathroom until he was found the next day. The factors listed by our supreme court
in the White instruction support a reasonable jury’s concluding that the victim’s removal
or confinement was to a greater degree than that necessary to commit the offense of
- 39 -
aggravated robbery. Accordingly, the evidence is sufficient to support Appellant
Buford’s conviction of especially aggravated kidnapping.
E. Cumulative Error
Finally, Appellant Buford contends that he is entitled to relief based upon
cumulative error. We have concluded that the State gave improper closing argument and
that the trial court erred by failing to give a limiting instruction pursuant to Bruton but
that the errors were harmless. Given the proof against the Appellant, we conclude that
the cumulative effect of the errors is still harmless. Therefore, he is not entitled to relief
on this issue.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we find no
reversible error and affirm the judgments of the trial court.
_________________________________
NORMA MCGEE OGLE, JUDGE
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