State of Tennessee v. George Eugene Cody

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 20, 2011
STATE OF TENNESSEE v. GEORGE EUGENE CODY
Appeal from the Criminal Court for Davidson County
No. 2009-A-260 Seth Norman, Judge
No. M2010-02121-CCA-R3-CD - Filed September 27, 2011
A Davidson County Criminal Court jury convicted the defendant, George Eugene Cody, of
two counts of criminally negligent homicide, see T.C.A. § 39-13-210 (2006), two counts of
first degree murder committed in the perpetration of a robbery, see id. § 39-13-202(a)(2), two
counts of especially aggravated robbery, see id. § 39-13-403, and two counts of identity theft,
see id. § 39-14-150. At sentencing, the trial court merged the criminally negligent homicide
convictions into the felony murder convictions and imposed a total effective sentence of life
plus 20 years’ imprisonment. On appeal, the defendant challenges only the sufficiency of the
evidence to support his convictions. Discerning no infirmity in the evidence, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and D. K ELLY T HOMAS, J R., JJ., joined.
David A. Collins, Nashville, Tennessee, for the appellant, George Eugene Cody.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; Sarah N. Davis and
Robert Elliott McGuire, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
The Davidson County grand jury charged the defendant with two counts of
premeditated first degree murder, two counts of felony murder, two counts of especially
aggravated robbery, two counts of identity theft, and five counts of forgery involving the
August 26, 2008 shootings of Pierre Robert Colas, a Vanderbilt University professor, and his
sister, Marie Catherine Colas,1 and the subsequent use of Doctor Colas’ credit card within
days of the shooting. Hans Peter Colas, the victims’ father, testified that the victims were
born in Germany. His 32-year-old son, Pierre Robert, was an assistant professor of
anthropology at Vanderbilt University who had recently purchased his first home. The
second victim, Mr. Colas’ 27-year-old daughter, was a resident of Zurich, Switzerland where
she taught music. She was visiting her older brother in summer 2008 when they were both
shot in her brother’s home. Doctor Colas died instantly from a single gunshot wound to his
head. Ms. Colas, who also suffered a single gunshot wound to her head, succumbed to her
injuries several days later on August 31, 2008.
Doctor Sergio Romero, an assistant professor of anthropology at Vanderbilt
University, worked with Doctor Colas. He recalled that Doctor Colas joined the faculty of
the university in January 2007 and purchased a home on McFerrin Avenue about one year
later. During summer 2008, Doctor Romero moved in with Doctor Colas and rented an attic
area of the house. Doctor Romero recalled that Doctor Colas did not have curtains or blinds
on his windows because “he believed that . . . if there was basically nothing blocking the
view from the outside, then people could see that there was nothing of value inside.”
According to Doctor Romero, Doctor Colas also grew up in an area of Germany where
“security was never a big concern,” so Doctor Colas regularly left the doors unlocked.
Doctor Colas’ sister visited in mid-August 2008, and the siblings vacationed in North
Carolina during her visit.
On August 26, 2008, Doctor Romero attended a faculty meeting, which Doctor
Colas did not attend because he took his visiting sister shopping instead. When Doctor
Romero arrived home at approximately 8:00 that evening, Ms. Colas greeted him at the door
and showed him some new cowboy boots she had purchased that day. Doctor Colas was
working at his desk. Both Colas siblings were fully-clothed when Doctor Romero went
upstairs to his apartment to watch television, shutting the attic door behind him.
Within 15 to 20 minutes of going upstairs, Doctor Romero “started to hear
some voices and steps . . . downstairs.” He described the voices as “muffled.” Within a few
minutes, Doctor Romero “heard [Doctor Colas] scream, [‘]Marie[’]. And a second after that,
[Doctor Romero] heard Marie scream, [‘]Please[’], and at that point [Doctor Romero] heard
a shot.” As soon as he “realized that something was happening downstairs,” Doctor Romero
went to the attic door to ensure it was closed. He “began shaking in fear” as he telephoned
9-1-1. The 9-1-1 dispatcher stayed on the telephone with Doctor Romero and instructed him
1
The indictment alleges the victim’s name as “Marie Catherine.” The transcript reflects that her
father testified that her name was “Mary Christine.” Exhibits at trial of the victim’s identification, however,
reflect that her name was “Marie Christine.”
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to stay upstairs until the police arrived. Telephone records showed Doctor Romero
telephoned 9-1-1 at 9:14 p.m.
When the police arrived, they initially handcuffed Doctor Romero until they
could determine he was not involved in the shootings. When Doctor Romero went
downstairs, he did not see Doctor Colas. He did, however, see Ms. Colas lying on the floor
“naked except for her underpants” with “blood streaming down her left side.” Doctor
Romero recalled that Ms. Colas was “wailing.” He said that he “had never seen anyone like
that, alive but not alive, it was horrible.” He testified, “Every voice I heard was muffled, I
couldn’t tell who it was . . . Except for the wailing I heard when Marie was screaming.”
Doctor Romero had never met the defendant, had never seen him around the victims, and
testified that the defendant had no reason to be in the home.
Officer Shane Fairbanks of the Metropolitan-Nashville Police Department
(MPD) responded to the call of a shooting at the victim’s address. He arrived on the scene
at 9:30 p.m. and immediately observed “two people down inside.” Because the officers had
“got[ten] there quick,” they proceeded to clear the house first to ensure the perpetrators were
not still inside the home. After clearing the main floor, the officers discovered the door
leading upstairs to the attic apartment. There they discovered Doctor Romero, who was very
upset and still talking on the telephone with the 9-1-1 dispatcher.
Downstairs, the officers discovered the victims lying on the floor near the door
to the attic. Officer Fairbanks recalled that “the male victim was farther to the left and into
the room and his legs came out where I could see, and the female victim was across his legs.”
The female victim was still moving and “moaning.” Officer Fairbanks determined that the
female victim had been shot in the head because that was “where it seemed like most of the
blood was” located. He was unsure whether the male victim was still alive when they
arrived. He described the home as “just an awful scene.”
MPD Identification Unit Officer Charles Linville arrived at the scene at
approximately 10:20 p.m. to process the crime scene for evidence. When he arrived, Doctor
Colas was the only victim present; Ms. Colas had been transported to the hospital already.
Officer Linville recalled a “large amount” of blood at the scene. He found a spent shell
casing near Doctor Colas’ shoulder. He also observed blood stains on the wall and a bullet
fragment near the victim’s body. He collected latex gloves found in the laundry room near
the back door, suspecting that they may have been used in the shooting. Officer Linville also
collected fingerprints from areas in the home where things appeared “out of place.” He
testified, however, that none of the fingerprints recovered from the scene, other than those
belonging to the victims, were sufficient for comparison.
-3-
MPD Detective Ben Ward, one of five to seven detectives assigned to the case,
discovered on August 27 that several purchases had been made at a local WalMart with
Doctor Colas’ credit cards. Detective Ward received surveillance video and receipts showing
that a “vehicle of interest” entered the parking lot at 12:14 a.m. on August 27 and that three
men entered the store approximately eight minutes later. One of the men, later identified as
Thomas Reed, purchased clothing, shoes, and a Play Station video game system at 12:42 a.m.
Other purchases occurred at a nearby Walgreens, several gas stations, and a different
WalMart. On August 28, Detective Ward briefed patrol officers at the “midnight roll call,”
the shift beginning at 10:30 p.m., regarding descriptions of the men in the surveillance
videotape and the vehicle they were seen driving.
MPD Officer Kenneth Bray worked the midnight shift on August 28 and was
present for Detective Ward’s briefing. He recalled that Detective Ward informed the officers
to be on the lookout for two young white males and one middle-aged black male who were
seen in a gold Buick Regal. Early on the morning of August 29, Officer Bray found a vehicle
matching the description and “ran the tag.” He learned the vehicle was registered to an older
white male. Rather than investigating further, he decided to prepare a report on the vehicle’s
location.
While he filled out the form, the defendant came out onto the front porch of
a nearby home. The defendant approached Officer Bray’s vehicle. Officer Bray quickly hid
the photograph of the defendant taken from the WalMart surveillance video and told the
defendant that he was in the area investigating the report of some burglaries. Soon thereafter,
another officer arrived, and the defendant turned to talk to that officer. As the two spoke,
Officer Bray motioned to the other officer indicating that the defendant was the person in the
surveillance video. The officers asked the defendant to provide his identification, so the
defendant went inside his home to retrieve it. While the defendant was inside, the officers
decided that they should “stop” the defendant upon his return and call the detectives.
When the defendant returned to his porch, the officers approached the front
yard of the home. The defendant told them to stay off his property. The officers informed
the defendant that he was being detained until the detectives could arrive. Officer Bray
recalled that at that point the defendant “became very nervous, very aggressive . . . [and] he
started cussing [the officers] and telling us how he doesn’t like police, how much he doesn’t
trust the police.”
The defendant told the officers that there were only two people in the home –
a black male and the defendant’s girlfriend (a white female). When the defendant’s
girlfriend brought his cigarettes out on the porch, however, the officers saw two white males
pretending to be asleep on couches in the living room. The men had blankets pulled up high
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to their faces. Fearing that the men might be armed, Officer Bray “pulled his weapon” and
ordered everyone to stand up. The officers handcuffed the men and brought one to the porch
while the other man stayed inside on the couch. During the detention, the defendant “had
some sort of panic attack.”
On cross-examination, Officer Bray testified that he knew the men were
suspects in the credit card use, but he was unsure whether they were involved in the shooting
deaths. Regarding the defendant’s demeanor, he stated, “I have worked around a lot of
people that are not nervous around the police.” He acknowledged, however, that the
defendant was not the first nervous person he had encountered and that getting “cussed” was
a “daily occurrence” in his job. Officer Bray denied telling the defendant that he would lose
his children if he was uncooperative. He also said that he would have admonished any other
officer who he had heard make such a threat.
Thomas Reed, a 22-year-old traveling magazine salesman at the time of the
offenses, testified that he was charged with theft and forgery for his involvement in the case.
He recalled that he had arrived in Nashville “a couple of days before this happened” as part
of his employment with a door-to-door magazine sales company. He worked with Michael
Shane Holloway,2 who was acquainted with the defendant through Mr. Holloway’s mother.
Mr. Reed explained that the employees stayed at a local motel and were transported to
neighborhoods each day where they walked door-to-door selling magazines.
On August 26, 2008, the defendant telephoned Mr. Holloway on Mr. Reed’s
cellular telephone. Mr. Reed recalled that they spoke with the defendant some time after
10:00 p.m. because the salesmen had just finished a nightly business meeting. The defendant
told the men that he had some credit cards that they “could go use and get some free stuff.”
The defendant picked up Mr. Reed and Mr. Holloway at approximately 10:30 p.m., and the
men went to the defendant’s home. Mr. Reed recalled that another black male, about 25 to
30 years old with short hair, was with them. At the defendant’s home, the men discussed that
Mr. Reed resembled “the guy on the card” and decided that Mr. Reed should make the
purchases. The defendant’s girlfriend gave the credit cards to Mr. Reed.
The defendant drove Mr. Reed and Mr. Holloway to WalMart where Mr. Reed
had “no trouble at all” buying clothing and shoes with Doctor Colas’ credit card. They also
purchased a Play Station, which was sold to purchase crack cocaine. Mr. Reed said he never
asked where the credit cards came from because he just wanted to buy drugs. After stopping
at several other stores, the men returned to the defendant’s home.
2
Mr. Holloway was also charged with offenses related to the use of the victim’s credit cards. His
case was abated, however, due to his death.
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Mr. Reed stayed at the home while the defendant and Mr. Holloway left to sell
the video game system and purchase drugs. While he waited for Mr. Holloway and the
defendant’s return, the defendant’s girlfriend showed him credit cards belonging to a female
and discussed transferring funds from the accounts via a laptop computer. Mr. Holloway and
the defendant returned with the crack cocaine, so Mr. Reed made no attempt to access funds
from the other credit cards. The defendant returned Mr. Reed and Mr. Holloway to their
motel at approximately 4:00 a.m. Mr. Reed testified that he was arrested the following
morning at the motel. He assumed he was being arrested for using the credit cards, but he
soon realized he was a suspect in a murder investigation. He first learned of the shooting
deaths from the police; the defendant never told him the source of the credit cards.
James Christopher McWhorter testified that, at the time of trial, he was
incarcerated in a Kentucky federal prison and awaiting sentencing on convictions involving
identity theft and the use of false identification documents. From September through
November 2008, however, he was housed in the Davidson County Criminal Justice Center
where he shared a cell with James Ward, a man through whom Mr. McWhorter became
acquainted with the defendant. Mr. McWhorter described himself as a jailhouse lawyer, so
the defendant confided in him regarding his case.
According to Mr. McWhorter, the defendant admitted that “his wife . . . ‘Little
Bro’ [and himself] were going to rob a place, and they went out . . . [and] ended up not doing
it.” The defendant told Mr. McWhorter that the trio saw a couple walking down the street
and decided to rob them instead. They pulled a gun and forced the man and woman into their
house. “Little Bro” got angry when neither victim had any money, so he ordered the woman
“to get naked” so that he could determine if she wore any jewelry. The man told “Little Bro”
that there was a safe in the back room. From the front of the house, the defendant heard
arguing. The defendant saw “Little Bro” push the woman and, when the man went toward
“Little Bro,” “Little Bro” shot them both. After the shootings, the defendant “went to get
high” at Nathaniel Carson’s home where he hid the guns in the front porch column
underneath a concrete cap. Somehow, the weapons were moved to the defendant’s home
where they were later recovered by the police through a search of the defendant’s residence.
The defendant told Mr. McWhorter that he expected Mr. Carson to retrieve the guns and hide
them again. According to the defendant, Mr. Carson came by his home when the police were
already there and was unable to retrieve them.
The defendant told Mr. McWhorter that he was carrying a gun that did not
function properly because “he had absolutely no intention whatsoever of killing anybody.”
The defendant asked Mr. McWhorter if the defendant’s involvement constituted felony
murder. When Mr. McWhorter told the defendant, “Absolutely,” the defendant became
angry and told Mr. McWhorter that he did not know what he was talking about and that the
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defendant “was going to be able to beat” the charges.
On cross-examination, Mr. McWhorter admitted that he sent a letter to the
MPD relating the defendant’s statements in hope of some benefit, but he realized that any
recommendation the State made would not be binding upon his pending federal charges. He
stated, “Obviously, I do want to get some type of benefit out of doing this . . . but at the same
time it really is the right thing to do.” He said that all the information he recounted in the
letter to the police came from the defendant, not the media.
Mr. McWhorter also testified that he initially did not want to be involved in this
case because he did not want to be thought of as a “snitch.” Mr. McWhorter said that he was
moved from Davidson County to Kentucky for his safety and that he hoped his report would
not “filter up to Kentucky.” He also said that he waited to write the letter to the police until
he could corroborate the defendant’s statements through conversations with Mr. Carson.
Byron Grizzle authenticated jail housing documents that confirmed Mr. McWhorter, Mr.
Carson, and the defendant were housed in the same pod in fall 2008.
MPD Detective Matthew Filter was the lead detective on the investigation of
the shooting deaths. Detective Filter executed a search warrant of the defendant’s home and
recovered two weapons there. He also determined that Mr. Reed and Mr. Holloway were at
the motel when the shootings occurred. Through Mr. McWhorter’s letter, Detective Filter
learned of the “hollowed-out” porch pillars at Mr. Carson’s home. Detective Filter testified
that many details contained in Mr. McWhorter’s letter were not known to the media.
Specifically, no details had ever been released concerning the discovery of a non-functional
gun at the defendant’s home, the hiding place in Mr. Carson’s porch pillars, and Ms. Colas’
being found wearing only her underwear.
Detective Filter recalled that the defendant claimed he was at home when the
shootings occurred but added that the defendant lived “just a mere couple of blocks away”
from the victim’s home. Detective Filter testified that someone could walk “very easily”
from the victim’s home to the defendant’s home in “five minutes or so” because the homes
were located “just about two blocks” apart. Likewise, Mr. Carson’s home was located only
one block from and within view of the defendant’s home. Detective Filter recalled that eight
to 10 police cars were at the defendant’s home on August 29 and that even if the cars could
not be seen from Mr. Carson’s home, the blue lights from the police vehicles would have
been easily observed. Telephone records showed calls between Mr. Carson and the
defendant on August 29 consistent with statements concerning the defendant’s attempts to
have Mr. Carson retrieve the weapons from the defendant’s home. Detective Filter
acknowledged that no tape recordings were made of calls to confirm the participants or
nature of any conversations. He also testified that officers secured the home immediately
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upon the defendant’s arrest while waiting on the issuance of the search warrant.
MPD Sergeant Mickey Yentes assisted in the search of the defendant’s home
on August 29. He described the defendant’s bedroom as “in complete disarray.” He
discovered several garbage bags located in a six-inch space between the defendant’s bed and
the wall. Inside the garbage bags, Sergeant Yentes found a brown striped polo-style shirt
identical to the one worn by the middle-aged black male seen in the WalMart surveillance
video. He also found a white envelope containing identification cards and credit cards
belonging to the victims. Sergeant Yentes recalled that a black male, who seemed “curiously
interested” in the activity at the defendant’s home, loitered near the home during the search
of the residence.
MPD Identification Division Officer Rhonda Jo Evans assisted in documenting
evidence taken during the search of the defendant’s home. In addition to the striped shirt,
identification cards, and credit cards, Officer Evans noted that a “white powder” and “green
leafy substance” were removed from the home. Officers discovered a .22 revolver with a
gauze-wrapped handle inside a baby bassinet. The revolver contained two bullets. They also
found a semi-automatic pistol hidden inside a sock and shoe on the defendant’s back porch.
The pistol contained seven .380 hollow point bullets.
Doctor Amy McMaster, Davidson County medical examiner, testified as an
expert in forensic pathology. She performed the autopsy on Doctor Colas and determined
that he died from a gunshot wound to his head. She said that the bullet entered on the right
side and came to rest on the left side of his skull where it was recovered. Doctor McMaster
opined that Doctor Colas died instantly from his wound and characterized the bullet’s
damage as “non-survivable.”
Doctor McMaster reviewed the autopsy report of Ms. Colas prepared by a
former colleague. Ms. Colas died five days after suffering a single gunshot wound to her
head. The bullet entered on the left side of her head and split into three pieces. The
pathologist recovered two bullet fragments from the right side of Ms. Colas’ skull, and one
fragment exited the right side of her head. Doctor McMaster opined that it was “very
unlikely that [Ms. Colas] would have been able to recover from her injuries” and that any
survival would have included “severe neurologic impairment.” Doctor McMaster observed
no defensive injuries on either victim.
Tennessee Bureau of Investigation (TBI) firearms identification expert Shelly
Betts reviewed items submitted from the investigation of the shootings. She identified one
firearm recovered from the defendant’s home as a “low quality German manufactured .22
caliber revolver” that did not function properly. Another weapon found at the defendant’s
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residence was a “.380 auto caliber semi-automatic pistol manufactured by Cobra Enterprises”
that she described as “in good working order.” Agent Betts’s examination revealed that the
bullet recovered from Doctor Colas’ head was fired from the Cobra pistol.
TBI Agent Chad Johnson, an expert in forensic serology, examined both
handguns recovered from the defendant’s home and confirmed the presence of the
defendant’s DNA on both weapons. Agent Johnson’s testing revealed the presence of the
defendant’s DNA on one of the gloves recovered at the crime scene. The same glove also
contained DNA from Doctor Colas. Agent Johnson acknowledged that it was impossible to
determine how the latex gloves had been worn in order to ascertain how the DNA was
transferred to the gloves. Likewise, he acknowledged that the defendant’s DNA could have
been transferred to the weapons by skin cells of the defendant’s that came into contact with
the items and that the presence of the defendant’s DNA did not necessarily mean the
defendant had handled the weapons.
The defendant presented the testimony of Michael L. Pyburn, a former MPD
officer currently employed as a private investigator, who testified that the defendant’s home
was not visible from Mr. Carson’s home. He acknowledged, however, that the presence of
police cars’ “blue lights” would have been visible from Mr. Carson’s porch.
The defendant testified that he did not know the victims, was not present when
they were shot, and did not know who killed them. He claimed his only involvement was to
use the victims’ credit cards without knowing that the victims had been killed. The
defendant claimed that he and a co-defendant, Lavonta Churchwell, did not have a very good
relationship and that he considered Mr. Churchwell a “rather loud mouth obnoxious person.”
He testified that Mr. Churchwell and Mr. Carson were cousins by marriage.
The defendant testified that Mr. Carson telephoned him on the evening of
August 26 while he was sleeping, so the defendant did not answer the telephone. He said
that his stepson took a message and told Mr. Carson that the defendant was asleep. Ten
minutes later, Mr. Carson showed up at the defendant’s door and told him about the credit
cards. The two men then enlisted Mr. Holloway and Mr. Reed to assist them in using the
credit cards. The defendant stated that Mr. Carson was the other black male in the car when
he went to the motel to pick up Mr. Holloway and Mr. Reed.
The defendant denied speaking to Mr. Churchwell. He denied hiding the pistol
in his shoe in the backyard and explained that his shoes had been outside for several weeks
because his backyard was muddy. The defendant explained that he used latex gloves in his
cleaning business and regularly kept them in his vehicle, which was usually unlocked.
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On cross-examination, the defendant testified that he never profited from the
use of the credit cards, although he did admit his involvement in their use. He explained that
in his statement to the police he identified the victims’ shooter by a nickname, “Man Man,”
because he did not want to be known as a “snitch.” He admitted that Mr. Carson’s nickname
was “Man Man.” Likewise, the defendant told the police that someone nicknamed “Slash,”
a nickname of Mr. Churchwell, was also involved in the shootings. The defendant
maintained at trial that the weapons had been “planted” at his home and that the glove was
possibly removed from his unlocked car and accidentally left at the scene by the actual
perpetrators. He denied all involvement in the robberies and shootings. He also explained
that he was in the midst of a “rather heavy” crack cocaine addiction in August 2008 and that
he needed money to support his addiction.
Based upon this evidence, the jury convicted the defendant of the criminally
negligent homicides of both victims, as lesser included offenses of premeditated first degree
murder. The jury also convicted the defendant of two counts of felony murder, two counts
of especially aggravated robbery, and two counts of identity theft. The jury acquitted the
defendant of forgery. At sentencing, the trial court merged the criminally negligent homicide
convictions into the felony murder convictions and imposed an effective sentence of life plus
20 years’ incarceration. On appeal, the defendant challenges the sufficiency of the evidence
to support his convictions.
Initially, the State asks this court to dismiss the defendant’s appeal due to his
failure to file a timely notice of appeal. The State correctly notes that the notice of appeal
was filed on November 8, 2010, almost four months after the entry of judgments on July 16,
2010; the defendant did not file a motion for new trial in this case. See Tenn. R. App. P. 4(a)
(“[T]he notice of appeal required by Rule 3 shall be filed with and received by the clerk of
the trial court within 30 days after the entry of the judgment appealed from.”). The State
argues that the defendant failed to seek a waiver of the timely filing and that the interest of
justice does not require this court to waive the timely filing requirement. See Tenn. R. App.
P. 4(a) (“in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the
filing of such document may be waived in the interest of justice”). This court’s record,
however, reveals that on October 12, 2010, the defendant did in fact file a motion with this
court requesting this court to accept a late-filed notice of appeal. On November 4, 2010, this
court granted the defendant’s request to accept a late-filed notice of appeal, ruling that the
interest of justice required us to do so. Accordingly, this court has previously ruled that the
defendant’s appeal should proceed.3
3
We further note that the defendant’s October 12, 2010 motion and this court’s November 4, 2010
order granting the late-filing were both served on the State. Nevertheless, for the second time in as many
(continued...)
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Turning now to the defendant’s claim that the evidence is insufficient to
support his convictions, we review this claim mindful that our standard of review is whether,
after considering the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Winters, 137
S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings of guilt based
upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial
evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id..
Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.
Tennessee Code Annotated defines first degree murder, as is applicable in this
case, as “[a] killing of another committed in the perpetration or attempt to perpetrate any .
. . robbery.” T.C.A. § 39-13-202(a)(2).
The Code defines criminally negligent homicide as “criminally negligent
conduct that results in death.” Id. § 39-13-212(a). Criminal negligence is defined as acting
“with respect to the circumstances surrounding that person’s conduct or the result of that
conduct when the person ought to be aware of a substantial and unjustifiable risk that the
circumstances exist or the result will occur . . . [and] [t]he risk must be of such a nature and
degree that the failure to perceive it constitutes a gross deviation from the standard of care
that an ordinary person would exercise under all the circumstances as viewed from the
accused person’s standpoint.” Id. § 39-11-302(d).
“Especially aggravated robbery is robbery . . . (1) accomplished with a deadly
weapon; and (2) where the victim suffers serious bodily injury.” Id. § 39-13-403(a).
“Robbery is the intentional or knowing theft of property from the person of another by
3
(...continued)
months, this court is addressing a dismissal argument raised in the State’s brief that has already been
disposed of by pre-brief pleadings in this court. See also State v. Carl J. Wagner, No. M2010-00992-CCA-
R3-CD, slip op. at 5 (Tenn. Crim. App., Nashville, July 20, 2011).
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violence or putting the person in fear.” Id. § 39-13-401.
A person commits identity theft who “knowingly obtains, possesses, buys, or
uses, the personal identifying information of another.” Id. § 39-14-150(b).
The evidence in this case showed that the defendant and another man entered
the victims’ home, brandished weapons, and demanded money. The defendant admitted to
Mr. McWhorter that he and another man planned the robbery. Likewise, he admitted that he
entered the home armed, albeit with a nonfunctional weapon. Nevertheless, the defendant’s
DNA was found on the pistol that experts determined fired the fatal shots. The defendant
told Mr. McWhorter details concerning the offenses that had not been released to the media
and were known only to investigators or those involved in the offenses. Doctor Romero’s
testimony that he heard muffled voices, a struggle, and the victims’ screams just prior to the
shootings is consistent with the statements made by the defendant to Mr. McWhorter. The
defendant admitted at trial that he solicited the aid of Mr. Reed and Mr. Holloway to use
Doctor Colas’ identification and credit card to make purchases. Mr. Reed testified to
unrealized plans made with the defendant and the defendant’s girlfriend concerning using
the credit cards to transfer funds. A search of the defendant’s home uncovered the handgun
used in the shootings and the victims’ identifications and credit cards. The evidence in this
case is sufficient to support the defendant’s convictions.
The defendant also argues that “this jury clearly did not understand the jury
charge or failed to follow it” as it relates to the court’s instructions on criminal responsibility
and asks this court to find plain error. The defendant failed to preserve this issue in a motion
for new trial and, likewise, failed to cite any authority in support of this argument.
Accordingly, it is waived. See Tenn. R. Ct. Crim. App. 10(b) (“Issues which are not
supported by the argument, citation to authorities, or appropriate references to the record will
be treated as waived.”). In the sense that this is a separate attack on the sufficiency of the
evidence, we further conclude that the evidence sufficiently established that the defendant,
either alone or as a participant criminally responsible for another’s actions, committed the
convicted offenses.
Conclusion
The evidence is sufficient to support the defendant’s convictions of two counts
each of felony murder, criminally negligent homicide, especially aggravated robbery, and
identity theft. Accordingly, the judgments of the trial court are affirmed.
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JAMES CURWOOD WITT, JR., JUDGE
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