Summary
In State v. Love, No. W1999-01957-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 633, at *23-24 (Tenn.Crim.App., at Jackson, filed Aug. 17, 2001), this Court analyzed the appropriate circumstances under which facilitation of a felony must be charged to a jury.
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No. W1999-01957-CCA-R3-CD.
Filed August 17, 2001. Assigned on Briefs January 10, 2001.
Direct Appeal from the Circuit Court for Fayette County No. 4754, Jon Kerry Blackwood, Judge
Reversed and Remanded.
Bill Anderson, Jr., Memphis, Tennessee (on appeal) and Michael W. Whitaker, Covington, Tennessee (at trial and on appeal), for the appellant, Mila Love.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussman, Assistant Attorney General; Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the court, in which David G. Hayes and Alan E. Glenn, JJ., joined.
OPINION
The defendant, Mila Love, was indicted by the Fayette County Grand Jury on March 22, 1999, on four (4) counts of first degree murder: two (2) counts of first degree premeditated murder and two (2) counts of first degree murder in the perpetration of or attempt to perpetrate a theft. At the conclusion of the trial, the trial court instructed the jury that the offense of reckless homicide was a lesser-included offense of felony murder. The jury then returned guilty verdicts on two (2) counts of first degree felony murder in the perpetration of an attempted theft and on two counts of reckless homicide as lesser-included offenses of felony murder in the perpetration of attempted theft.
Although the defendant was originally indicted on charges of first degree premeditated murder and felony murder, the case was submitted to the jury only on the felony murder counts. It is evident from the record and the judgment forms that the first degree premeditated murder counts were dismissed/nolle prosequed by the State on August 30, 1999, prior to selecting the jury.
We note the fact that the term "felony murder" is a misnomer in that one may be convicted of first degree murder in the perpetration of or attempt to perpetrate misdemeanor theft. However, as is customary, we will refer to such crime as "felony murder."
The defendant's appeal is properly before this court and she presents four issues for our review: (1) whether the evidence was sufficient to support her convictions for felony murder; (2) whether the trial court erred in failing to take judicial notice of the definition of the word "gank," as defined by the Office of National Drug Control Policy, when several witnesses referred to that word at trial; (3) whether the jury's verdict of guilty for reckless homicide and felony murder required individual inquiry by the trial court to determine the order of the verdicts, and whether the verdicts resulted in an implied acquittal; and (4) whether the trial court erred in failing to instruct the jury on the lesser-included offenses of felony murder.
Facts
At trial, Linda Hill testified on behalf of the State that the defendant had asked her, sometime in late December 1998, if she wanted to make some extra money. When Hill expressed an interest in the opportunity, the defendant explained to Hill that she needed someone to distract the victim, Carry Hudson Harris, while the defendant and an accomplice robbed him. Hill testified as follows:
[The defendant] told me that we would go — that they would drop me off. I would go in and detain him. How I done that was up to me. Okay. So, then, when I detained him or got him passed out or whatever, I was to get up, make an excuse, go get a drink of water, beep her, and unlock the door. And then they were going to come in, her and someone else — I hadn't met this person at the time — and rob him.
Hill also testified that the defendant said she had heard that the victim had a lot of money and that if they could get inside the house, they could get it.
The next day, December 28, 1998, the defendant introduced Hill to a guy named Raymond. The defendant then told Hill about how much money they could get. In the meantime, Raymond left and moments later came back with a pistol. At this point, Hill felt uncomfortable about a gun being involved so the defendant and Raymond carried her back home. Later the same day, the defendant, Raymond, and Quinton "Quincy" Scott, the eventual shooter, arrived at the defendant's house and the shooter now had the pistol.
Hill got back into the car with the three others and the group began discussing their plan to rob the victim. Scott began playing with the pistol and said, "Man, if I pop the MF, it ain't going to be nothing said. It's okay with you, ain't it? It's cool." Hill then decided to exit the car because she thought "something bad would happen." A guy named Ed Bond then got in the car with the remaining three: the defendant, Raymond, and the shooter. The group returned after approximately 30-35 minutes.
Hill saw the defendant the next day, Monday, December 29, 1998, and the two went to get something to eat. That was the last time Hill talked to or saw the defendant. Although she never heard any of the group talk about selling fake dope, she testified that she had bought fake dope from the defendant and the others on more than one occasion.
About two weeks later, during the late night hours of January 11, 1999, the defendant, the shooter, and Raymond Branch were at Charlotte Allen's house. Raymond Branch was not the same Raymond that previously discussed a robbery with the defendant and Hill. While at Allen's house, the victim paged the defendant. The defendant told Branch, "It's the white man." She then returned the victim's call and agreed to bring him a rock of crack cocaine. The defendant, the shooter, and Branch then left Allen's house.
When the three arrived at the victim's house during the early morning hours of January 12, 1999, the victim asked if they were hungry and cooked a pizza for them. While at the victim's house, the defendant received a page from Cedric Anderson. The defendant then returned Anderson's call and told him that she "was fixing to `gank' somebody." Anderson testified that "gank" meant "somebody was robbed or something like that." He also testified that "gank" more often times means to rip someone off in a drug deal by selling them fake crack. When the defendant finished the phone call with Anderson, she went to warm up the car.
After the defendant went outside, the shooter asked the victim for a cup of water. Branch, who was inside the victim's house with the shooter, testified that when the victim returned with the cup of water, the following occurred:
[The shooter] pulled out his gun and pointed at the white man and said, "I'm robbing you, M--- F---." And I [Branch] said, "What the hell's going on?" And he [Scott] shoot him. The he [Scott] points the gun at me and said if I said anything, he going to kill me, too.
So, I run in the hallway. I heard two more shots. I'm praying, don't know what to do. After that, I ran outside. The time I run outside, [the defendant] jumped out of the car and run in the house. So I'm out there pacing around, praying, don't know which way to go, blanking out. So a few minutes later, they come running out. "F--- it! F--- it! Let's go!"
The three then got back into the car and before they drove off, the defendant asked Scott, "Did you kill dude on the couch?" Scott then replied, "Yea, I popped him in his sleep." This was the first time Branch knew about a second person in the house. Branch testified that the first time he knew about Scott having a gun, which he had hidden in his clothes, was when Scott pulled it up and shot the first victim. The three, with the defendant driving, went to drop the shooter off and before he got out, the defendant and the shooter both told Branch not to say anything about what had happened.
Branch further testified that the defendant was in his presence the entire time between when the defendant received the phone call from the victim and when she went out to start her car. He stated that during this time there was never any discussion about robbing anyone. He believed that the three were only going to the victim's house to make a drug deal. He also testified that when they arrived at the house, the victim invited the three of them in the house, which was inconsistent with how they had done drug deals in the past because customarily the defendant would make the deals at the person's door.
The next morning, the victim's mother called a friend and asked if they would go with her to check on her son. Upon discovering her son's body, her friend called 911. Investigator Don Pugh of the Layette County Sheriff's Department was the first to reach the scene. He saw that Harris had been shot one time in the chest and found the body of Daniel Tice, who had been shot twice in the torso, on the floor. Dr. O'Brien Clary Smith, a forensic pathologist, confirmed that both Harris and Tice died of gunshot wounds.
Investigator Pugh found a piece of paper on the counter with the defendant's beeper number written on it. He obtained a copy of Harris' phone records and saw that the last two calls Harris had made were to a phone registered to Carolyn Miller. When the defendant, who was considered a suspect, was stopped by the police on January 13, her beeper kept going off while Detective Ricky Wilson searched her car, and one of the calls was from Carolyn Miller.
Investigator Pugh went to Carolyn Miller's address, where he met Cedric Anderson, Miller's nephew. He told Anderson he was investigating a homicide, and Anderson agreed to talk with him. Investigator Pugh's investigation eventually led to the defendant, Raymond Branch, and Quinton Scott, the shooter.
On January 30, 1999, the defendant gave Investigator Pugh a statement in which she said she had not been to Harris's house since four days before Harris and Tice were murdered. She denied any knowledge of or involvement in the murders, and said that she had been at Charlotte Allen's house all night on January 11, 1999.
On February 5, 1999, the defendant gave a second statement, in which she again said she had no information about the homicides. She gave a third statement later the same day, and admitted that she, the shooter, and Branch had gone to the victim's house to sell him a $20 rock of crack cocaine, but denied any knowledge of a robbery or a murder. Three days later, the defendant gave a fourth statement to Investigator Pugh:
She told me that her and Raymond [Branch] and Quinton [Scott] had went to the location. She went in and sold the man a $20 rock. He asked them were they hungry. They stayed — he fixed a pizza. They eat the pizza, and shortly after that, she went out to crank the car. In a few minutes, Raymond Branch runs out of the house hollering that Quinton had shot, that her and Raymond go back into the house. When they get into the room, they don't see a body, but they hear a noise in the bedroom. Her and Raymond both looked through the bedroom door and see Quinton Scott standing on the bed with his foot hung in the closet door. He asked them to come help. She says that her and Raymond exit the house and go back to the car and wait on Quinton there. And when Quinton come back, she says Quinton made the statement, "I can't believe I killed them two M— F — s for nothing."
At trial, Hill testified about the defendant's attempts to involve her in the earlier plans to rob the victim, and Branch described the murders. Branch said that the defendant had not claimed to be selling the victim fake cocaine. Investigator Pugh detailed his investigation and the defendant's statements, and confirmed the defendant had never indicated that the crack cocaine she sold the victim was fake. He confirmed that there was a hole in the closet door. Also, the State introduced photographs of the partially destroyed closet door, which had a padlock on it. Apparently, the shooter was unable to break into the closet.
The defendant testified that she sold drugs and that Harris and Tice were two of her customers. She claimed that Branch taught her to sell fake cocaine, candle wax laced with Orajel, and she had sold Harris a dummy crack cocaine rock on the night of his murder. She insisted that it was Branch who had spoken to Anderson while they were at the victim's house using a little girl voice.
The defendant maintained that she was outside in her car when Branch came out and told her that Quinton had "shot the M — F — ." She said she did not believe him, but went into the house with him, and heard a noise. She saw the shooter kicking the master bedroom closet door, and said that she and Branch ran out when he asked them to help him take valuables from the closet.
She insisted that nothing was stolen from the house and that she had not conspired with anyone to harm Harris or Tice. She also claimed not to have heard any gunshots while she was sitting in the car or seen any bodies when she went back inside the house, although she admitted on cross examination that it caused her some concern that Harris was not there when she returned. She also admitted that she had heard from Ed Bond that Harris had gold bars and money in the house.
Analysis
The defendant first challenges the sufficiency of the evidence for her felony murder convictions. We review challenges to sufficiency of the evidence according to well-settled principles. A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts in the testimony in favor of the State.State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Tuggle, 639 S.W.2d at 914. On appeal, "the [S]tate is entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may be drawn therefrom."Id. Where the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This court may not substitute its own inferences "for those drawn by the trier of fact from circumstantial evidence."State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App. 1990). In concluding our evaluation of the convicting evidence, this court is precluded from reweighing or reconsidering the evidence.State v. Morgan, 929 S.W.2d 380, 383 (Tenn.Crim.App. 1996).
Under Tennessee law, first degree felony murder is "[a] killing of another committed in the perpetration of or attempt to perpetrate any . . . theft." Tenn. Code Ann. § 39-13-202(a)(2). The crime supporting the defendant's two convictions of first degree murder is attempted theft. A person is guilty of theft of property when they intentionally deprive the owner of their property and knowingly obtain or exercise control over the property without the owner's effective consent. Tenn. Code Ann. § 39-14-103. Tennessee Code Annotated section 39-12-101 defines criminal attempt as follows:
(a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense:
(1) Intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person's part; or
(3) Acts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense.
The defendant's convictions were based upon the defendant's criminal responsibility for the conduct of her co-defendant, the shooter, Quinton Scott. The theory of criminal responsibility is found in Tennessee Code Annotated section 39-11-402, which provides:
A person is criminally responsible for an offense committed by the conduct of another if: . . . [a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.
The evidence adduced at trial showed that the defendant had discussed a plan to steal several items from the victim and even solicited Linda Hill to participate, who declined. The evidence also showed that several weeks after discussing this plan, the defendant drove Raymond Branch and the shooter to the victim's house. While at the house, the defendant returned Cedric Anderson's phone call and told him that she was about to "gank" someone. Anderson testified that "gank" meant to either rob someone or to sell them fake drugs. At some point while at the victim's house, co-defendant Quinton Scott pulled out a gun and told one victim that he was robbing him and then shot the victim. Although the defendant had gone to start the car and was not in the house when Scott shot the first victim, she went back into the house after learning about the shooting. When she got back in the house, she said that she saw the shooter kicking the master bedroom closet door. Investigator Pugh confirmed that there was a hole in the door, and the State introduced a photograph of the partially destroyed closet door, which had a padlock on it. The defendant said that the shooter had his leg hung in the closet door. She also said that he asked them to help him get some valuables from the closet. When the defendant and the others were leaving the crime scene, the defendant asked Scott if he shot the other victim that was on the couch. Scott replied, "Yea, I popped him in his sleep." The defendant also said that he stated that he could not believe that he killed the two victims for nothing. She and the shooter then instructed Branch not to tell anyone about the killings.
This evidence was clearly sufficient for a jury to find beyond a reasonable doubt that the victims were killed in the perpetration of an attempted theft. Also, the evidence was sufficient for a jury to conclude beyond a reasonable doubt that the defendant intended to promote or assist in the commission of the attempted theft and that she intended to benefit in the proceeds of the theft. In fact, the jury could infer from Hill's testimony that the defendant was the mastermind behind the entire plan to rob the victims. By intimately participating in this attempted theft, she became accountable for all of the consequences flowing from the theft. See, e.g., State v. Brown, 756 S.W.2d 700, 703 (Tenn.Crim.App. 1988). This issue is without merit.
Next, the defendant contends that the trial court erred in not taking judicial notice of the definition of the word "gank" as defined by the Office of National Drug Control Policy when several witnesses referred to that word at trial. Rule 201 of the Tennessee Rules of Evidence allows a court to take judicial notice of a particular fact in lieu of evidence. See State v. Nunley, 22 S.W.3d 282, 287 (Tenn.Crim.App. 1999). For the court to take such notice, the "fact must be one not subject to reasonable dispute, in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Tenn. R. Evid. 201(b).
The defendant specifically alleges that the court should have taken judicial notice of the term "gank" as defined by the Office of the National Drug Control Policy. The Office of the National Drug Control Policy defines the word gank as being fake crack. However, as evidenced by Cedric Anderson's testimony that the term "gank" sometimes meant to rob and sometimes meant to sell fake drugs, the definition of "gank" is subject to reasonable dispute. There is no evidence that the definition of the term is generally known within Fayette County, Tennessee. In addition, the Office of the National Drug Control Policy is not a source whose accuracy cannot reasonably be questioned. Therefore, the trial court properly refused to take judicial notice of the definition and allowed the jury to weigh the conflicting evidence about the definition of the term. This issue is without merit.
Next the defendant contends that the jury's verdict of guilty for reckless homicide and felony murder required inquiry by the trial court to determine the order of the verdicts, and whether the verdicts resulted in an implied acquittal. In instructing the jury, the trial court instructed on felony murder and reckless homicide as a lesser-included offense of felony murder. The court did not, however, instruct the jury that they were only to consider the lesser-included offense after finding the defendant not guilty of the greater offense. Consequently, the jury convicted the defendant of two counts of felony murder and two counts of reckless homicide.
The defendant asserts that the verdict of guilty on both felony murder and reckless homicide was an imperfect verdict and was facially void. Although the defendant cites the proposition that imperfect verdicts must be amended to the proper form, she cites to no authority that a merger of a conviction for both the greater offense and the lesser-included offense is improper. In fact, the trial court in this case merged the defendant's reckless homicide convictions with her felony murder convictions. See, e.g., State v. Gillispie, No. W1998-00512-CCA-R3-CD, 1999 WL 1532151 (Tenn.Crim.App., filed December 20, 1999, at Jackson) (merging a defendant's convictions for second degree murder with the defendant's felony murder convictions). This issue is without merit.
Finally, the defendant contends that the trial court erred in not instructing the jury on the lesser-included offenses of felony murder. In State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999), our supreme court adopted the following test for determining what constitutes a lesser-included offense:
An offense is a lesser-included offense if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).
The defendant was convicted of first degree felony murder, which is defined as follows:
First Degree Murder. —
(a) First degree murder is:
(1) . . .
(2) A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft piracy[.]
Tenn. Code Ann. § 39-13-202(a)(2).
Recently, our supreme court resolved the question of whether there were lesser-included offenses to felony murder, concluding that second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder.See State v. Ely, ___ S.W.3d ___ (Tenn. 2001). Furthermore, our supreme court has held that when a defendant's conviction is based upon the theory of criminal responsibility for the conduct of another, criminal responsibility for facilitation of a felony is a lesser-included offense. Burns, 6 S.W.3d at 466-67.
However, the issue is not resolved simply by applying the holdings in Ely and Burns. We must next apply a two-step process to determine whether, under the facts, the trial court should have instructed on each particular lesser-included offense.
First, the trial court must determine whether any evidence exists that reasonable minds could accept as to the lesser-included offense. In making this determination, the trial court must view the evidence liberally in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence. Second, the trial court must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser-included offense.
Burns, 6 S.W.3d at 469.
Because the State pursued and the trial court instructed on the theory of criminal responsibility, we will first consider the trial court's failure to instruct on facilitation of felony murder. See, e.g., Ely, ___ S.W.3d at ___; Burns, 6 S.W.3d at 466-67; State v. Utley, 928 S.W.2d 448, 451 (Tenn.Crim.App. 1995). In State v. Lewis, 919 S.W.2d 62, 67 (Tenn.Crim.App. 1995), this court held that "virtually every time one is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser included offense." In Lewis, the court reasoned that the "knowledge" required for facilitation of a felony is met by the defendant's knowledge that the co-defendant was going to commit the underlying felony. Id. at 68. The court concluded that because the defendant knew his co-defendant was planning a robbery, which was the underlying felony for his felony murder conviction, then the defendant could be guilty of facilitation. Id.
In State v. Utley, 928 S.W.2d 448, 452 (Tenn.Crim.App. 1995), perm. app. denied, (Tenn. May 13, 1996), a panel of this court stated:
Lewis stands for the proposition that a trial court should instruct the jury as to facilitation of felony murder only where the facts could cause reasonable minds to conclude that the defendant lacked the intent to promote or assist in, or benefit from, the [underlying] felony's commission. Because of the two-fold nature of felony murder, logic dictates that the holding in Lewis should be applicable where the defendant may not have had the intention to "promote or assist in, or benefit from" the underlying felony rather than simply a lack of intent to participate in the felony murder.
The court distinguished the defendant's situation in Utley fromLewis in that Lewis involved a jury question as to whether the defendant intended to promote or assist in the underlying felony. The court in Utley held that "no such evidence existed" for one to conclude that the defendant knowingly provided substantial assistance but did not intend to promote or assist in the underlying felony. Id. at 453.
In the instant case, the defendant pursued a theory that she had no intention to steal from the victims and that she only went to their house to sell them drugs. Although she pursued a theory that she had no knowledge of the shooter's plan to commit the attempted theft, when viewed in a light most favorable to the existence of the lesser-included offense, there was evidence upon which reasonable minds could have accepted as to the lesser-included offense of criminal responsibility for facilitation of a felony. See Burns, 6 S.W.3d at 469.
Furthermore, considering her earlier plans to rob the victim, her driving the shooter to the victim's house, her going back inside the house after Scott had already killed at least one victim, and her remarks to Branch as they were leaving the crime scene, there was sufficient evidence that the defendant knew co-defendant Scott was going to attempt to commit the theft and that she furnished substantial assistance in the commission of the attempted theft. See Burns, 6 S.W.3d at 469. Therefore, we conclude that the trial court erred by not charging the jury with facilitation of felony murder.
Having concluded that the failure to instruct was error, we now determine whether such error was harmless. See Ely, ___ S.W.3d at ___. Our supreme court has concluded "that an erroneous failure to instruct on lesser-included offenses is a constitutional error for which the State bears the burden of proving its harmlessness beyond a reasonable doubt." Ely, ___ S.W.3d at ___. The State contends that it was not error for the trial court to refuse to instruct on the lesser-included offense of facilitation. The State does not, however, make any attempts to show how any such error was harmless. In reviewing the record before us, we hold that the State has failed to meet their burden of proving that the failure to instruct on the lesser-included offense of felony murder, facilitation of felony murder, was harmless beyond a reasonable doubt. See id. Therefore, we reverse the defendant's convictions and remand the case for a new trial.
Conclusion
After thorough review, we hold that sufficient evidence exists to support the defendant's convictions for first degree felony murder. We also hold that the trial court did not err in declining to take judicial notice of the definition of the street term "gank." Finally, although the trial court properly merged the defendant's convictions for reckless homicide with felony murder, the trial court's failure to instruct on the lesser-included offense, facilitation of felony murder, was error that was not harmless beyond a reasonable doubt. Therefore, we reverse the defendant's convictions and remand for a new trial. Upon remand, the trial court is advised that it must instruct the jury, not only on the lesser-included offense, facilitation to commit felony murder, but to all applicable lesser-included offenses under the guidelines provided by our supreme court inBurns, 6 S.W.3d at 467 and Ely, ___ S.W.3d at ___ (second degree murder is lesser-included offense of felony murder).