State of Tennessee v. Kevin Ladell Grandberry

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 7, 2016
STATE OF TENNESSEE v. KEVIN LADELL GRANDBERRY
Appeal from the Circuit Court for Lauderdale County
No. 9368 Joe H. Walker, III, Judge
___________________________________
No. W2015-01344-CCA-R3-CD - Filed September 28, 2016
___________________________________
The defendant, Kevin Ladell Grandberry, was indicted for first-degree premeditated
murder, murder in the perpetration of a felony, especially aggravated robbery, attempted
first degree murder, employing a firearm during the commission of a dangerous felony,
felon in possession of a weapon, and theft between $1000 and $10,000. Following trial, a
jury found the defendant guilty of murder in the perpetration of a felony, especially
aggravated robbery, aggravated assault, felon in possession of a weapon, and theft
between $1000 and $10,000. The trial court sentenced the defendant to an effective
sentence of life without the possibility of parole plus 27 years in confinement. On appeal,
the defendant argues the evidence was insufficient to support his convictions. After
review, we affirm the defendant‟s convictions, but remand to the trial court for entry of
amended judgments reflecting, per the sentencing hearing transcripts, that the sentences
in Counts 2 and 3 are to be served concurrently.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER, JJ., joined.
George D. Norton, Jr., Selmer, Tennessee, for the appellant, Kevin Ladell Grandberry.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; D. Mike Dunavant, District Attorney General; and Julie K. Pillow and
Mark E. Davidson, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
Factual and Procedural History
This case arises out of the robbery of the BP Express convenience store in Ripley,
Tennessee on November 14, 2012, that resulted in the death of the victim, Deepal Patel.1
The defendant, Kevin Grandberry, was subsequently charged with first-degree
premeditated murder, murder in the perpetration of a felony, especially aggravated
robbery, attempted first degree murder, employing a firearm during the commission of a
dangerous felony, felon in possession of a weapon, and theft between $1000 and $10,000.
The case proceeded to a jury trial where the below-summarized proof was presented.
On November 14, 2012, Marvin Shepard was working at the BP Express in
Ripley, Tennessee with the victim. As the two men were preparing to close that evening,
Mr. Shepard went to the restroom. While in the restroom, he heard a gunshot come from
the front of the store. When Mr. Shepard returned to the main part of the store, he did not
see the victim but, instead, discovered a masked individual holding the cash register and
slamming it on the floor. As he moved towards the perpetrator, Mr. Shepard slipped on
some loose change and fell to the floor. When he regained his “senses” after falling, the
perpetrator was standing over Mr. Shepard with his gun pointed at Mr. Shepard‟s head
and directing him not to move. The perpetrator then fled the store with the metal cash
box.
After the perpetrator left the scene, Mr. Shepard realized that he was lying next to
the victim and that the victim had been shot in the neck. While most of the perpetrator‟s
face was covered during the robbery, Mr. Shepard testified that he got a good look at both
the mask worn by the perpetrator and the perpetrator‟s eyes, describing them as “crazy
eyes, wild.” He was able to identify both the mask and the defendant at trial.
Around the time of the robbery and murder, Sandra Shaw, who lived in the
Rolling Hills Apartment complex located behind the BP Express, overheard the dispatch
call concerning a shooting at the BP Express on her police scanner. When Ms. Shaw
went outside and looked towards the BP Express, she saw a tall, African-American male
running from the store towards the apartment complex.
Several agents with the Tennessee Bureau of Investigation (“TBI”), including
Special Agent John Sullivan, arrived on the scene around midnight to aid local law
enforcement in the investigation. Initially, Agent Sullivan noticed several loose coins
lying on the ground outside of the store near the entrance. Upon entering the store, Agent
Sullivan discovered more loose coins, a significant amount of blood, and the cash register
1
The victim‟s given name was Deepal Patel. However, throughout the record in this
matter, the witnesses referred to him by his nickname, “Danny.”
-2-
on the floor. As part of processing the crime scene, Agent Sullivan also reviewed the
video of the robbery and murder that was captured on the store‟s video surveillance
system.
Later that morning and with the aid of daylight, Agent Sullivan and others
returned to the scene and began to follow the trail of coins they had discovered the night
before. According to Agent Sullivan, the trail led from the store to the parking lot of the
Rolling Hills Apartments. However, the trail ended in the parking lot.
On the morning of November 15, 2012, Barbara Patrick woke to discover that her
red 1989 GMC pickup truck had been stolen. At trial, Ms. Patrick was shown
photographs of the condition of her truck after it had been located by law enforcement
and testified that the steering column was broken and that the rolled coins found inside
the vehicle did not belong to her and were not in the vehicle when she last saw it on
November 14, 2012.
That same morning, the defendant arrived at his sister‟s home and informed her
boyfriend, Ronald Horne, that he needed to “drop off” a truck and asked if Mr. Horne
would follow him and give him a ride home afterwards. According to Mr. Horne, he then
followed the defendant to Somerville, Tennessee where the defendant pulled the truck
into a field. After traveling about 200 yards from the road, the defendant parked the truck
in a wooded area of the field. When the two returned to Covington, Tennessee, the
defendant had Mr. Horne drive him to Mid-City Auto Sales where the defendant
purchased a 1996 Chevy Truck. According to Billy Carroll, a salesman at Mid-City Auto
Sales, the defendant made a cash payment of $813 -- $500 down plus $313 in taxes. The
defendant‟s credit report showed that he was not employed. Mr. Horne also testified that
the defendant was not employed at the time. Mr. Carroll testified that the defendant
returned to the car lot on November 26, 2012, and purchased a 1999 Chevy Tahoe. The
defendant paid $3,292 in cash for the vehicle.
Several days later, Officer David Pressley with the Somerville Police Department
met with Mr. Horne because he had been developed as a suspect in the robbery. During
their conversation, Mr. Horne told Officer Pressley about the truck the defendant had
“dropped off” in the field a few days earlier. He then led Officer Pressley to the location.
In searching the vehicle, Officer Pressley discovered that the steering column was broken
and found rolled and loose coins in the vehicle. He also discovered Ms. Patrick‟s
insurance card inside of the vehicle. At trial, Ms. Patrick identified the truck as her
vehicle that had been stolen on or about November 14, 2012.
On November 17, 2012, Agent Sullivan received a tip concerning possible
evidence located on the property of the Lauderdale County Alternative School. The
-3-
school property is located about a mile from the BP Express. Based on this information,
Agent Sullivan and Agent Jeff Jackson searched the area around the school. Their search
produced several pieces of the metal cash box and the plastic drawer that sits inside the
box. The agents also discovered two larger pieces of the metal cash box along with what
appeared to be a mask hidden in a pile of leaves on the school property.
The mask, along with other pieces of potential evidence, was sent to the TBI crime
lab for testing. Agent Lawrence James, an expert in the field of serology and DNA,
testified that he was able to retrieve DNA from the mask, which he described as a “sleeve
that someone cut off a thermal shirt.” He then compared the DNA profile he obtained
from the mask to the defendant‟s DNA sample and determined that the defendant was the
major contributor to the DNA profile found on the mask. According to Agent James, the
probability that the DNA profile found on the mask matched anyone other than the
defendant exceeded the population of the world.
After the defendant‟s arrest and prior to trial, he came into contact with Charlie
Leavy, who was serving time for theft and burglary. While the two were being
transported from the Bledsoe County Correctional Facility to Lauderdale County, the
defendant confessed to Mr. Leavy that he had robbed the BP Express and shot the clerk.
More specifically, the defendant confessed that he parked his truck in the Rolling Hills
Apartment Complex and walked over to the store armed with a shotgun. Upon entering
the store, he demanded the money from the clerk. When the clerk refused and reached
for a gun, the defendant shot him.
The defendant also confessed to Anthony Grandberry2 while the two were housed
together in 2013. According to Anthony Grandberry, the defendant confessed that he
stole a red pickup truck, went into a store to rob it, shot the clerk in the face, and left with
the “cash register.” The defendant also admitted to Anthony Grandberry that he would
have “got away with it if he wouldn‟t have left the ski mask in the field.”
In addition to the testimony of the witnesses, the State also introduced and played
for the jury footage of the robbery and murder that was captured by the store‟s video
surveillance system.
At the conclusion of the trial, the jury found the defendant guilty of murder in the
perpetration of a felony (Count 2), especially aggravated robbery (Count 3), aggravated
assault as a lesser-included offense of attempted first degree murder (Count 4), felon in
possession of a weapon (Count 7), and theft between $1000 and $10,000 (Count 8). The
2
Though the defendant and Anthony Grandberry are related, Anthony Grandberry was
not sure as to the degree.
-4-
jury found the defendant not guilty of employing a firearm during the commission of a
dangerous felony (Count 5) and failed to reach a verdict on premeditated first degree
murder (Count 1). The State subsequently dismissed Count 1. As a result of his
convictions, the defendant received an effective sentence of life without the possibility of
parole plus 27 years. This timely appeal followed.
Analysis
The defendant argues that the evidence is insufficient to sustain his convictions.
He contends that evidence presented by the State is not sufficient to establish his identity
as the assailant. The State responds that the evidence was sufficient. We agree with the
State.
When a defendant challenges the sufficiency of the evidence, the relevant question
for this Court is “whether, after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal,
“„the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.‟” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this Court will not re-weigh or re-evaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this Court, who resolves any questions concerning “the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “[A]lthough
inconsistencies or inaccuracies may make the witness a less credible witness, the jury‟s
verdict will not be disturbed unless the inaccuracies or inconsistencies are so improbable
or unsatisfactory as to create a reasonable doubt of the appellant‟s guilt.” State v. Radley,
29 S.W.3d 532, 537 (Tenn. Crim. App. 1999).
A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court
applies the same standard of review regardless of whether the conviction was predicated
on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.
2011). “Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of
guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).
-5-
Although the defendant‟s face was covered, Mr. Shepard was able to identify the
defendant based on his eyes. When law enforcement searched the surrounding area for
evidence, they discovered, among other things, the cash drawer from the BP Express and
a mask. Mr. Shepard was able to identify the mask found by law enforcement as the
mask worn by the defendant. Additionally, when the mask was tested for DNA, the
testing revealed that the defendant was the major contributor to the DNA profile collected
from the mask. According to Agent James, the probability that the DNA matched
someone other than the defendant exceeded the population of the world. Furthermore,
the State presented evidence connecting the defendant to a stolen truck that was used in
the robbery. Additionally, the proof revealed that the defendant, who was unemployed at
the time of the robbery, was able to pay cash for two vehicles within days of the robbery.
Finally, the defendant confessed to two separate individuals that he robbed the BP
Express and shot the clerk. In one of his confessions, the defendant even boasted that he
would have gotten away with his crime if he had not left his mask in the field.
Based on this evidence, we are persuaded that a rational trier of fact could have
found beyond a reasonable doubt that the defendant committed the robbery and was
responsible for the death of the victim.3
Conclusion
Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
____________________________________
J. ROSS DYER, JUDGE
3
Applying the same reasoning, we conclude that the evidence is sufficient, as well, to
sustain the defendant‟s convictions for aggravated assault, felon in possession of a weapon and
theft between $1000 and $10,000.
-6-