### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove mb er 12, 200 8

STA TE OF TEN NES SEE v. LA MA RIO HIL L

Appeal from t he Criminal Court for Shelb y County No. 05-08627 Jame s C. Beasley, Jr., Judge

No. W2007-01741-C CA-R 3-CD - Filed Jun e 4, 2009

A Shelby County jury convicted the defe ndant, Lamario H ill, of first degre e f el o n y m u rder

, attempted espe cially aggr avate d robbery, and aggr a v ate d a s s ault. The trial c ourt imposed concur rent sentenc es of life in prison for the de fen d an t ’s murder c onviction, nine year s for his attempted
espec ially aggra vated r obbery c onviction, and four year s for his aggravate d assault conviction. On

app e a l, the de fe nd a nt a

rg ue s th a t th e e vid enc e pr od uc e d a t tria l w a s in su ff ic ie nt t o s up po rt

his convictions. After

revie wing the re cord, w e af firm the judgments of the tria l court.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt s o f the Cr im ina l C our t A ff ir me d.

D. K EL LY T HOMAS , J R ., J., delivere d the opinion of the court, in which J OS EP H M. T I P TO N , P.J., and A LA N E. G LE NN , J., joined.

Robert W il s on Jones, District Public Defe nder; Ga rland Er güden, Assistant District Public Defe nder (o n a pp e a l) ; a ndMo z e lla

Ros s, Me mph is T e nn e sse e (at tria l) , f or the app e lla nt, La mari o H ill

. Robert E. Cooper, Jr ., Attorney Ge neral an d R eporter; Elizabe th T. Ryan, Assistant Attorney Ge ne ra l; W ill ia m L. Gi bb on s, Di stric t At torne y Ge ne ra l; a nd Ja me s W a x a nd Mic he lle Par ks

, Assistant District Attorneys Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

At trial, Abdo Ahmed te stified through an interpr eter that on the evening of August 23, 2005, he and his brother, Ali Alothmani, wer e wor king at Linc Minimarket, a convenie nce store located on Southern Avenue in Memphis. Ahmed said that about thirty minutes before the s tore closed, he

a tte mpt e d to e xit

the sto re thr ou gh the fr on t door wh e n he wa s con fr on te d b y tw o b la c k me n w ho se fac es we re c overe d by “white c loth[s] that cove red e verything exce pt the [ir] eyes.” Ahmed said that he wa s not sure of the two men’s i dentities. One of the m en pulled a gun on A hmed, pointed it at his fa c e , a ndtol d h im t o “ ge t ba c k in to the sto re or we will ki ll yo u. ” Ah me d s a id that he pu t hi s hands up, turned a

round, and r eente red the store while telling t he men that he would give them theF le tc h e r w a s in d ic te d a s a c o -d e fe n d a n t i n th is c a se ; h is c a se w a s se v e re d fro m H ill ’s b e fo re trial. 1

-2- store’s money. H oweve r, once the m en got approximately five fee t inside the store, the a ssailant wi th the gu n f

ir e d tw o s ho ts, on e of

wh ic h lo dg e d inthe c e ili ng and one of wh ic h h it A lothma ni, who had been in the back of t he st ore but who came towar d the front whe n Ahmed conf ronted the two men. Afte r the two men l eft the store, Ahmed opened the door and sa w the two men r unning down the stree t. He said that no c ustomers wer e in the store at the ti m e o f the shooting, although he saw one per son outside the store.

An ton io L a mpkins , w ho te sti fi e d tha t he kne w the de fe nd a nt be c a us e the de fe nd a nt’ s u nc le

was mar ri ed t o his (Lampkins’) c ousin, said that on the afte rnoon of August 23, 2005, he was playing basketba ll with the defenda nt, Ni ch o l as Fletcher , and two other men whose names 1 Lampkins did not remember . Lampkins said that at some point

, the def endant sa id that he “wa nted to rob a store ” and a sked Lampkins if he w anted “ to hit the store with him.” Lampkins r eplied that he did not. Later

that evening, La mpkins, t h e d ef en dant, Fletcher , and a f

ourth man with whom Lampkins was not fa miliar walked t o w ard Southern A venue. A fter a while, Lampkins turned a round and we nt home. Lampkins said that as he w alked towa rd the store , he did not see a nyone with a gun, that the others did not have cloths covering the ir fac es, and that he did not believe that t h e others would actua lly rob the store.

On cr oss-exa mination, Lampkins denied that hi s cousin Mookie, whom he identified on redire ct as Calvin Lyons, was prese nt w ith the others that night or had a r ole in planning the robbe ry. Lampki n s said that as he a nd the others wa lked towar d the store, they did not discuss robbing the
sto re . H e a c kn ow le dg e d th a t he didno t f ind ou t that a ny thi ng ha d h app e ne d a t th e sto re un til Fletcher c alled him some time later a nd told him t hat “something had ha ppened at that store.”

La rry J on e s te sti fi e d th a t he vis ite d the sto re a t “ nin e or nin e thi rt y” the e ve nin g o f A ug us t 23, 20 0 5

. W h e n h e le f

t th e s to r e , n o c u s to me r s r e main e d th e r e

. A f te r le a v in g th e store, Jones walked dow n Southern Avenue toward Boston Street whe n three men ra n past him. Jones said that one of the men carried a handgun at hi s side. He also said that he only saw the men from the back, so he did not see their

fac es, but he did see “maybe a sca rf or bandana or something around the [ir] neck[ s]

. . . .” Jones surmised that the three men wer e “young

. . . may b e i n t h ei r t ee n s or somewher e.” Jone s then saw Ahmed exit the store; acc ording to Jones, Ahmed wa s “hollering and
ye lli ng a ndthat’ s w he n I r e a liz e d s ome thi ng ha d h app e ne d. ” Jo ne s th e n s a w the me n tu rn on to Boston S tree t, heading north. On cross-e xamination, Jones s aid t hat he was unsure how many of the

men w o r e b a n d a n a s o r s c ar v e s ar o u n d th e ir n e c k s w h e n h e s a w th e m. H e a d d e d th a t h e did not

re c og niz e the me n a ndthat th e me n s a id n oth ing to h im.

Of fi c e r M arc us Be rryma n, a c ri me sc e ne inv e sti gator wi th the Me mph is Poli c e De pa rt me nt, testified that he examined the crime scene the night of t he shoot ing. When O ffice r Berryman ar rived inside the store, he found the victim lying dead in an aisle to the right of a r ack c ontaining various snacks. On the top shelf of the r ack ne xt to the vi ctim, the officer found a box of Lemonhe ad ca ndy with a bullet hole in it. Office r Berryman also found a bullet fragme nt embedded in the vic tim’s le ft pa lm, jus t abo ve his wrist

. On c ro ss- e xa min a tio n, Of fi c e r B e rryman a c kn ow le dg e d th a t he did-3-

not find a gun or any bullets at the c rime sce ne. He also ac knowledged that no weapons w ere tested in connec tion with thi s case

. Sergea nt William D. Merritt with the Memphi s Police Depa rtment testified that he a nd Se rg e a nt T .J . H e lld or fe r, wh o d id n ot t e sti fy a t tria l, i nv e sti gate d th is c a se a s p art of the ir du tie s w ith the hom icide squad. The two detec tives first interviewe d the defendant on August 25, 2005, at the police station. Sergeant Merritt said that the def endant’ s mother was pr esent throughout the int e rv ie w and si gn ed the wa ive r o f righ ts f orm a lon g w ith the de fe nd a nt. Th e de te c tiv e s o ra lly advised the de fenda nt of his rights and “pre sented the a dvice of rights form that h as the Mira nda

warnings printed on them to [the def endant] and to his mother and we had [the defe ndant] read the form to verify that he c ould rea d” the form. Sergea nt Merritt testi fied that the de fenda nt “see m[ed] to understan d ” h i s ri g h ts, had no questions about his rights, and was a ble to rea d the waive r form aloud to the detec tives.

Ac c o r d i n g t o S e r g e a n t M e rr i t t , t h e d e f e n d a n t “ i n i t i a l l y t o l d u s t h a t h e w a s n o t i n vo lve d in this inciden t. He told us that he wa s [in] the pa rking lot and [saw ] seve ral pe ople run fr om the business.” After t his response , the detectives told the defendant that they “ha d interviewe d others and that we wer e in t he proc ess of intervie wing other pe ople that we f elt like wer e going to be inv olv e d in thi s in c ide nt an d that we we re go ing to c omp are wh a t th e y to ld u s to wh a t he tol d u s .

. . to hope fully get to the truth

. . . .” This c omment pr ompted the defe ndant t o o ff er a d i ff er ent version of e vents to the detec tives. Acc ording to Sergea nt Merritt, the dete ctives did not threate n the def endant into cha n g i n g h i s statement. Whe n asked to “ [d]e scribe the events that took plac e, befor e, during, a nd afte r the shooting at 2638 Southern,” the defe ndant re plied:

Antonio Lampkins, Nick F letcher

, and Treyvaughn, I don’t know hi s last name, met . . . at my house. We was talking a bout it. Well, Treyva

ughn, he brought up a

bout robbing the store, so we met up at the store, putting on our masks and Tr eyvaughn ran in with a gun, but me a nd Nick didn’t get a chanc e to run i n. We w as at the door and Tre yvaughn and the store cle rk starte d shooting. Me and Nick ran down Boston. I wa s looking back to see T reyvaughn [come ] out. He c ame out and w e lef t.

Th e de fendan t sa id tha t he wo re a wh ite t- sh irt ov e r h is f

a c e a t th e tim e of

the inc ide nt. He a lso noted that Tre yvaughn use d a

. 3 5 7 S m i th & Wesson handgun whic h he got from the de fenda nt’s brother, Marqua l H ill, and that two shots we re fired during the incident. The de fenda nt claimed that his brother ha d kept the gun under his bed and that his brother had gotten rid of the gun the day he (the de fenda nt) gave this statement to police.

The de tectives late r lea

rned f rom the def

endant’ s juvenile court pr obation office r that the defe ndant wished to spea k with the police again. Thus, on Septe mber 1, 2005, the detec tives met with the defe ndant and his c ourt appointed specia l a dvocate

, Tanji Skinner, at juvenile court. The de te c tiv e s a dv ise d th e de fe nd a nt o f h is ri gh ts; he wa ive d th os e ri gh ts a ndga ve the po lic e a state me nt. In this statement, he said that he shot the victim and that the third person with him and Fletcher at the c on ve nie nc e sto re wa s no t Tr e yv a ug hn bu t a ma n n a me d K e nto ri . A c c or din g to the de fe nd a nt, Ke nto ri , w ho wa s pre se nt wh e n the plan wa s dev ise d to rob the sto re , stoo d outs ide the sto re wh ile he we nt inside. The defe ndant said that the shooting “ was an acc ident.” When asked why he had-4-

incorre ctly identified the third per son in his fi rs t statement to police, the de fenda nt replied, “Supposed to te ll you what I told you bef ore. . . . I hear d that his brother ha d did something, and I . . . didn’t want to hurt my momma.” Serge ant M erritt said that the pol ice c ontacted T reyvaughn and lea rned tha t he was not in Memphis the night of the shooting.

On cr oss-exa mination, Sergeant Mer ritt acknowle dged that the nig h t of the shooting, he spoke with a man na med Cordarius Torrey, w ho was also interviewe d by other officer s at t he police statio n l at er t h at night. He also ac knowledged that the defe ndant mentioned a pe rson named “Ke ntori” during the f

irst interview, but because Serge ant Helldorf er inve stigated this part of the

c a se , h e wa s u ns ur e wh e the r Ke nto ri wa s Cor da ri us To rr e y or so me oth e r pe rs on . Se rg e a nt M e rritt said that the identity of t h e fourth person who wa s prese nt with the defe ndant, Lampkins, and Fletcher the afte rnoon bef ore the shooting was never confirme d.

Sergea nt Merritt said that Serge an t H e ll d o rf e r w r o te “ e ig h th grade , rea d aloud with difficulty, slow” on the de fenda nt’s fi rst waiver of rights form. He said that the def endant a nd his mother “indicate d to [the dete ctives] that they understood his rights and that they were willing to answer our
qu e sti on s th a t e ve nin g. If the y h a d to ld u s n o, we ’r e no t go ing to a ns we r qu e sti on s or we wa nt t o speak with an attorne y,” the de tectives would not have conducte d the interview . He a lso noted that his mothe r “ c ou ld h a ve sto pp e d th e int e rv ie w at a ny tim e , [bu t] that did not oc c ur .” Se rg e a nt M e rritt denied telling the def

endant that his initial ve rsion of events was “not right” and he denied showing the de fe nd a nt F le tc he r’ s e arl ie r s ta te me nt t o p oli c e

. He a lso sa id that he a ndhis pa rt ne r “ ne ve r t old [the de fenda nt] that he ne eded to tell the truth. W e just told him that he nee ded to tell what role he played in this incident when he was up there .” The detec tives also told the defe ndant that they we re

“ int e rv ie wi ng se ve ra l pe op le that w e re up a ndthat w e we re go ing to b e int e rv ie wi ng oth e r s us pe c ts in this case.” H e acknowledge d that the offic ers be gan spea king to the defe ndant at 9:50 p.m. and that the interview did not end until 12:25 a.m., but he denied that the stateme nt took nearly two a nd a half hours bec ause the detec tives “had to bully [the de fenda nt] into making this s tatement.”

Sergea nt Merritt testified that through their investigation, the police learned that Treyva ughn

was a n actua l person who lived in Michigan, a nd while Tre yvaughn had “ connec tions” to the neighborhood, he was not pr esent at the store the night of the shooting. He said that Tr eyvaughn’ s

name wa s mentioned, along with the defendant’s, during one of the eight versions of events provided by Fletcher during his statement. Sergea nt Merritt acknowledge d that afte r the de fenda nt mentioned a gun in his first statement, the defe ndant’s mother gave the police c onsent to sear ch her house for the gu n b ut n o g un wa s f ou ndthe re . H e a lso a c kn ow le dg e d th a t no gu n was ever foun d in

connec tion with the case.

Sergea nt Merritt acknow ledged that the def endant’ s mother was not pre sent for his sec ond
state me nt t o p oli c e . H e sa id tha t th e no rm a l po lic e pr oc e du re wo uldha ve be e n f or the po lic e to

a tte mpt to c on ta c t t he defe nd a nt’ s mo the r, bu t he wa s u ns ur e wh e the r M s. Hi ll w a s a c tua lly
conta cted before the def

endant’ s second state ment. Sergea nt Merritt also ac knowledged that the
court-a ppointed advocate who was prese nt f or the sec ond statement wa s not an attorney, a lthough he adde d that neither the defe ndant nor the a dvocate asked f or an attorney du ri ng the interview

. Sergea nt Merritt said that he pr esumed that the a dvocate was prese nt be cause the def endant’ s mother
was not ava ilable at the time of the interview. H e also a cknowledge d that he was unawa re that the-5-

de fe ndant was mi ldl y me nta lly re tard e d, a lth ou gh he a dd e d, “ W e do n’ t r e qu e st t e sts to s e e if someone is compete nt to understand their rights. That’s out of our re alm.”

Dr

. Ma rk o Ros s, a

fo re ns ic patho log ist , te sti fi e d th a t he re vie we d th e re su lts of the a uto ps y pe rf or me d b y D r. Ka

re n Ch a nc e llo r, the c hie f She lby Cou nty me dic a l exa min e r at the tim e of thi s trial. Dr. Ros s said that the vi ctim died from a si ngle guns hot wound t o the chest. He said that “the
pa th this bu lle t we nt w a s g e ne ra lly fr om the fr on t of the [v ic tim ] t ow ard s h is b a c k a nda lso fr om h is left side towar ds his right side and in a downwar d direc tion.” Dr. Ross described the bullet, which lace rate d the victim’s heart an d was re cover ed fr om the victim’s abdominal cavity, as a “medium caliber ” proje ctile. He w as u n ab l e t o d etermine how fa r aw ay the victim was f

rom the gun at the time he was fired, other t han to determine that given t he lack of soot on the clothing, the wound wa s not a contac t wound.

Betty Hill, t he def

endant’ s mother, was the first witness to testify on his behalf. She said that the day the defe ndant was arr ested, “[a ]bout three ” office rs knocked on her door and asked to s ee her son. She told the off

icer s to wait while s he went to the defendant’s bedroom. After waking the defe ndant andte ll in g h im th a t th e p o li c e w a n te d to s e e h im

, s h e r e tu r n e d to th e f r o n t r o o m o f

her ho us e a nd fo un d tha t “[ a ]b ou t fiv e or six ” of fi c e rs , a ll o f w ho m ha d th e ir gu ns dr a wn , h a d ma de the ir way inside the house . She asked the police why they w anted the de fenda nt and why they we re treating him “like . . . a criminal” but the of fi ce rs di d not answer

her. The police ar

rested the de fe nd a nt, ha nd c uf

fi ng him , a ndtol d h is m oth e r t hat sh e wo ul d hav e to c ome do wn tow n a s w e ll. Th e of fi c e rs the n to ok

the de fe nd a nt a ndhis mothe r t o th e po lic e statio n in se pa rate sq ua d c ars

.

Ms. Hi ll sa id that some tim e a ft e r ar ri vin g at the po lic e statio n, sh e a nd he r s on we re le d to an interr ogation room, wher e two dete ctives aske d him questions about the shooting. The defe ndant initially t old the detec tives that he wa s not inside the convenience store when the shooting occurr ed, but rather he wa s outside the l iquor store next door to the convenie nce store . Ms. Hill said that he
repe atedly told the detec tives this version of eve nts, to which the detec tives repe atedly re plied that the de fe nd a nt w a s invo lve d in the inc ide nt. At on e po int , o ne of

the de te c tiv e s to ld the de fe nd a nt,

“ I’ m ti re d a ndI’ m r eady to go ho me so te ll y ou r m a ma yo u w e re inv olv e d.

. . . [ Y] ou ’r e go ing to juvenile court anyway w hen you leave here .” This prompt ed Ms. Hill to ask the detec tives whether the de fe nd a nt h a d a lr e a dy be e n c ha rg e d w ith a ny thi ng ; sh e c la ime d th a t th e y d id n ot ans we r this question. She said that the detec tives told he r and the defe ndant that Fletcher had alre ady told the police that the defe ndant was involved and that the de tectives showe d them Fletcher’ s statement.

Acc ording to M s

. Hi l l

, b efore the que stioning began the police showe d her a nd her son a form which the police said “ was for an attorne y,” adding that the de tectives “ didn’t say it was for

one

. . . that same night.” Noticing that the w ord “w aiver ” appe are d on the form, she asked, “ ain’t this li ke wa iving or giving my rights away?” T he dete ctives re plied, “no,” so she and the de fenda nt signed the form. Ms. Hill sa id that she did not ask to spe ak with an attorney that night and that she did not fully understand wha t was going on at the time, but she signed the f orm anyway.

Ms. Hill said that the day of the s hooting, she had seen he r son, Fletcher , Lampkins (whom she ca lled Tonio), and two other persons whom she did not re cogni ze p l ay ing basketball nea r her house. She wa s unawa

re of whether she saw Mookie outside her house that day. She said that as-6-

she left he r house f

or work, these people wer e st anding i n her front yard when Tonio asked her f or a ride home. She declined, saying that she was late for work. On her way to wor

k, she stopped at
one store on Boston Street before driving past the Linc Minimarke t, which was sur rounded by police office rs and c rime sce ne tape. She claimed that someone standing outside the store told her that the store had be en robbe d and the owne r shot.

Ms. Hill said that she was prese nt when the police asked about the gun used in the shooting. She testified t hat whil e the defe ndant s aid t hat t he gun belonged to Mar qual, he did not say that he “got” the gun f

rom Marqua l, who lived with her a nd the def endant. She c laimed that she told the police that Mar qual did not keep a gun in her hous e. S h e also claimed that she signed a sear ch

war rant authorizing the police to sea rch he r home for

wea pons and that the police f

ound no wea

pons during the sea

rch.

Ms. Hill said that during the 2004-05 school year , the one prior to her son’s arr est, he wa s sevente en yea

rs old and wa s a freshman at East High School, wher e he made “all F’s.” She said that the def endant spe nt two year s in the eighth grade , wher e he ha d made “ D’s and F’s,” befor e he

re c e ive d a so c ia l pro mot ion to the nin th gr a de

. She a c kn ow le dg e d tha t the de fe nd a nt h a d “ pr ob le ms in school” throughout his aca demic ca ree r.

On cross-examination, Ms. Hill acknow ledged that her son had rec eived some B’s a nd C’s

on his eighth grade report car d during the 2003-04 aca demic year. S he said that he r house wa s about three minutes from the scene of the shooting a nd that she left her house ar ound 9:45 the night of the shooting. Ms. Hil l admitted that she di d not rea d the waive r of rights form in great de tail, but she claimed that her failing to revie w t he form resulted from the detectives telling her that she w as not giving up her rights and that the f orm was f

or a la wyer . She als o claimed that the type written

ve rs ion of the de te c tiv e s’ qu e sti on s a ndthe de fe nd a nt’ s a ns we rs to the qu e sti on s d id n ot a c c ur a te ly ref lect the or der in whic h the detec tives asked the que stions. However , she admitted that she did not

rea d the typewritten interview whe n she initialed ea ch page on the document.

Ms. Hill ins isted that the defe ndant did not tell the detectives that Marqua l Hill had gotten rid of the g u n

. Sh e a ls o in s is te d th a t s h e h a d n e v e r k n o w n M ar q u a l to p o s s e s s a g u n b e f ore the incident. She acknow ledged that Marqua l ha d been arr ested in Ma rch 2001 for unlaw ful possession of a w eapon but that the char ge resulted from the police finding a gun on the ground in the midst of four boys, inc l u d i n g Marqua l, all of whom wer e cha rged w ith weapons possession. She said that she wa s unawa

re that the gun was found on Marqua l’s person and that Marqua l had told police that he had the gun for pr otection.

Reb e c c a Ru tl e d g e , Ph

. D

. , a

c li nical psychologist, testified that she c onducted a psychological evaluation of the defe ndant. She aske d the def endant a bout the day of the incident; the def endant’ s

answe rs to the questions wer e “ve ry va g u e . . . . He said that he wa ited outside of a liquor store while his friend w ent in to buy cigare ttes. He said that he hear d shots a nd his friend ran out telling him that the y ne e de d to lea ve

. Th e y bothran. An d h e wo uldno t e la bo rate a ny fu rthe r. ” She sa id that “ [f ]r om the way h e de sc ri be d w hat ha pp e ne d th a t day .

. . I w ou ld t e ll y ou th a t he pr ob ably didn’t have a

lot of fore sight, was likely to be much more impulsi ve, in othe r words acting bef ore thinking it through.”-7-

Dr. Rutledge sa id t h at s h e admi nistered the W eschle r Adult Intelligence Scales, whic h

measure d the def

endant’ s intelligence quotient (I Q). S he said that the defendant’s full scale IQ of 69 wa s “ in the ra ng e of

mil d me nta l r e tard a tio n. ” W he n a sk e d if sh e “ ob se rv e [d ] any thi ng abo ut h is

abil iti e s, ” Dr . Ru tle dg e no te d th a t th e de fe nd a nt pr ov ide d “ ve ry c on c re te

. . . ve ry sh ort” a ns we rs to her que stions. “A lot of times he did not understand what I wa s asking him. If I r epeated [a question] seve ral times, he still didn’t quite get i t. His response time to a question was slow

. . . he was struggling.”

Dr

. R u t l edge also administered the W ide Range A chieve ment test, which mea sured the defe ndant’s rea ding and math ability. She said that the test showed the defe ndant to be rea ding at a third-gr ade le vel, which r ender ed him “func tionally il li ter ate.” Dr . Rutledge said that the def endant would be able to rea d the word “ milk” on a milk carton but would be una ble t o co m p re h end the ins truc tio ns on a

me dic ine bo ttl e

. She op ine d that pe rs on s su c h a s the de fe nd a nt w ou ld n e ve r b e able
to rea d beyond a sixth-grade level. She said that the defendant would not have be en able to rea d and

un de rs ta ndthe ri gh ts w a ive r f or m pr e se nte d h im b y p oli c e , a nd wh ile the de fe nd a nt m a y h a ve tol d the police that he understood his rights, he in fac t did not understand them. The te st also indicated that th e de fe nd a nt’ s math s kills we re on a fo urth- gr a de le ve l. A ft e r c on du c tin g a dd iti on a l te sts designed to dete rmine whe ther the de fenda nt w as malingering or “fa king” his symptoms , she determined that the def

endant wa s not malingering.

Re ga rd ing the de fe nd a nt’ s u nd e rs ta nd ing of the pr oc e e din gs a ga ins t him

, Dr

. Rut le dg e sa id that the def

endant wa s able to answe r si mple questions such as “[w ]hat does an attorne y do,” “[ w]ha t does the prose cutor do,” and “[w]hat does t he jury do.” She also said that the def endant kne w that he w as “in bi g trouble.” H oweve r, she sa id that the defe ndant “doe sn’t quite understand a ll the legalities about it. He doe sn’t understand how his cas e i s g o i ng to be pre sented . . . his level of
appre ciation [is] . . . just not very we ll developed.” She also testified that she “ found him to be very acquie scent” in dealing with authority figures and that the defendant was not likely to be a “lea der.” In sum
, Dr. R u tl e d g e s a idth a t i n h e r p r o f e s s io n a l o p in io n , th e d e f e n d a n t “ h a d a

li mi te d understanding of

the proc eedings against him a nd a limit ed capa city to a ssist in his own offe nse.” Howeve r, she also noted that the defe ndant “had the capa city

. . . for k n o wi n g an d p u rposeful conduct, a nd . . . he had the ability to apprec iate right fr om wrong.”

On cr oss-exa mination, Dr. Rutledge acknow ledged that the def endant ha d been de termined competent to stand trial. She also admitted that she had not r ead the statement the defe ndant gave to police and that she did not know the circ umstances or the location of the offe nses with which the de fe nd a nt w a s c ha

rg e d. She a lso a c kn ow le dg e d th a t sh e didno t r e vie w h is s c ho ol r e c or ds or ta lk with his family members. Dr. Rutl edge said that while the def endant ha d taken a nother test which determined his IQ to be 85, the particular test used t o produce that result “a lways re sult[s] in kind of over [-] inflated IQ score s,” and there fore was not a test which Dr. Rutledge used i n her pr actice

.

Ma rq ua l H ill

, the de fe nd a nt’ s old e r br oth e r, te sti fi e d that he sa w the de fe nd a nt, La mpkins

, Fletcher, a nd a fourth person ca lled Bookie, whom he claimed to be Lampkins’ c ousin, together the afte rnoon of the shooting. He denied owning a gun, hiding one at his mother’s house, or providing one to the def

endant. On c ross-examination, he said that he saw the group lea ve his house but he did not know what time they l eft the house. He said that he saw a report of the shooting on t he 9:00-8-

news that e vening and t h at t h e d ef endant was at home whe n the re port aire d. He a lso denied

car rying a gun in the past. He said that while he was a rre sted for w eapons posse ssion in 2001, he denied telling the police afte r his a rre st tha t he car

ried the gun for pr otection. He a lso noted that he didno t ta lk t o th e po lic e c on c e rn ing thi s c a se ; he sa id he did no t talk to the po lic e be c a us e the y d id not question him i n connec tion with thi s incident.

Ronald Lax, a private investigator, testified that he lea rned that “Bookie’s” r eal na me was Kevin Lyons and that Lyons wa s Lampkins’ cousin. Ac cording to Lax, L yons lived in Detroit but

wa s in Me mph is the nig ht o f the sh oo tin g. La x s po ke wi th L a mpkins ’ f a mil y; he sa id that the fa mil y members with whom he spoke became “very ner vous” whe n asked a bout Bookie and claimed not to know Bookie’s rea l name. On c ross-examination, Lax ac knowledged that famil y members a re often ne rvous about giving information about a f amily member to a private investigator.

After its deliberations, the jury convic ted the def endant of o n e count each of f irst degre e felony murde r, attempted e specia lly aggravated robbe ry, and a ggravated assault, as char ged in t he ind ic tme nt. Th e de fe nd a nt s ub se qu e ntl y f ile d a tim e ly n oti c e of

app e a l.

ANALY SIS

The de fenda

nt’s sole issue on appea l is that the evidenc e produce d at trial was insuffic ient to sustain his convictions. I n his brief, the de fenda nt states that while he “ cannot a rgue . . . that absolutely

no evidenc e exists t o support his convictions in light of his st atements of a dmission, he submits t hat the record does not rea sonably support convictions g reater than fac ilitation of” the three offe nses with whi ch h e was convicted. The defe ndant’s ar g ument is rooted in his assertions that neither A hmed, the surviving victim, or J ones, the customer who saw three men run past him after leavingthe store, positively identified the defe ndant as the shooter, and that the de fenda nt’s mental
capa city was such that he was pressure d into taking responsibility for offe nses whi ch h e d i d n ot commit. W e disag ree

. An appe llate cour

t’s standard of

revie w when the defe ndant questions the sufficie ncy of the evidenc e on appe al is “whe ther, a ft er v i ew i n g the evidenc e in the lig ht most favorable to the
prosec ution, any

rational trier

of fa ct could have found the esse ntial elements of the c rime beyond

a re a so na ble do ub t.” Jac ks on

v. Vi rg ini a

, 443 U.S. 307, 319 (1979) (e mphas i s i n o ri g inal). The

app e ll a t e c o u rt d o e s n o t r e w e i g h t h e e v i d e n c e ; r a t h e r , i t p r e s u m e s t h a t t h e j u r y h a s r e so lve d a ll conflicts in the testimony and draw n all rea sonable infere nces from the e vidence in favor of the State. See State v. S heff

ield, 676 S.W .2d 542, 547 (Tenn. 1984); State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978) . Questions reg ardingwitness cre dibilit y , conflicts in testimony , and t h e we i g ht and value to be g iven to evidenc e wer e resolved by the jury

. State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997). A guilty

verdic t removes the presumption of innocenc e and repla ces it with a pr esumption of g uilt, and on appea l the defe ndant has the burden of illust rating why the evidence is i nsufficie nt to suppor t the jury ’s ver dict. I d.; State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982). This standard
ap plies to findings of guilt based upon direc t evidence , circ umstantial evidence , or a c ombination of both direc t and circ umstantial evidence . State v. Penderg rass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).-9-

A conviction for

first degre e fe lony murder, a s char ged in the i ndictment, require s proof of a “kill in g o f

a n o th e r c o mm it te d in th e p e rp e tr a ti o n o f o r a tt e mp t t o p e rp e tr a te a n y

. . . r o b b e ry[.] ” Tenn. C o de Ann. § 39- 13-202(a )(2) (2005) . “No c ulpable mental state is require d for c onviction under [ the fe lony murder statute] exce pt the intent to commit the enumerated offe nses or a cts in such

su bd ivi sio ns .” Id . § 39 -13-2 02(b ). Re ga rd ing the de fe nd a nt’ s c on vic tio n f or a gg ra vate d a ssa

ult
ag ai n s t v i cti m Ahmed, our c riminal code state s that “[a ] per son commits assault who . . . [i]ntentionally or knowingly causes another to rea sonably fea

r imminent bodily injury.” Id. § 39-13- 101(a) (2). “ A per son commits aggra vated assault who .

. . [i]ntentionally or knowingly commits an assault as d ef

ined in § 39-13-101 a nd . . . [u]se s or displays a dea dly weapon[ .]” I d. § 39-13- 102(a) (1)( B).

Th e de fe nd ant w a s a lso c on vic te d o f atte mpt e d e sp e c ia lly agg rava ted ro bb e ry

of vic tim Alothmani. Our cr iminal code def ines robber

y as “the intentional or knowingtheft of pr operty from the pe rs on of ano the r by vio le nc e or pu tti ng the pe rs on in fe ar. ” I d. § 39 -1 3- 40 1(a). E sp e c ia lly

a g g ravated robb e ry

is d e fi ne d a s r ob be ry

a c c omp lis he d w itha

de a dly we a po n w he re the vic tim

su ff e rs se ri ou s b od ily

inj ur y . I d. § 3 9- 13 -4 03 (a )( 1) -( 2) . T e nn e sse e ’s a tte mpt statut e state s:
(a ) Ape rs on

c omm its c ri min a l atte mpt wh o, a c tin g wi th t

he kind of

c ulp a bil ity otherwise r equire d for the of fense :
(1) I nt e nti on a lly

e ng a g e s in

a c tio n o r c a

us e s a re su lt that w ou ld constitute an off

ense if the circ umstances surr ounding the conduct

wer e as the person be lieves them to be; (2) Ac ts with intent to c ause a result that is an ele ment of the off ense, and believe s the conduc t will cause the result without f urther c onduct on the per son’s part; or (3 ) A c ts w ithint e nt t o c omp le te a c ours e of a c tio n o r c a

us e a re su lt that wo u ld constitute the offe nse, under the circ umstances surroundingthe conduc t as the per son believes them to be, a nd the conduct c onstitut es a substantial step towa rd the c ommissi on of the offe nse.
(b) Conduct doe s not constitute a substantial step under subdivis ion (a)( 3) unless the person’ s entire c ourse of

action is corr oborative of the intent to commit the offense

.

I d. § 39-12-101 ( a)- (b).

Reg ardingthe def

endant’ s assertion conc erninghis mental state, we note that the def endant fi le d a mot ion to s up pr e ss h is s tate me nts to po lic e , w hic h th e tr ia l c ourt de nie d. Th e tr ia l c ourt

a lso held a pretria l competenc y hear ing, at the conclusion of which the trial cour t ruled that the de fenda

nt

wa s co mp et en t t o s t an d t ri al

. On ap p ea l
, t h e de fe n d an t d o es n o tar gu e t h at t h e t ri al co u rt ’s ru l i n gs

wer e incor

rec t. Rather, the de fenda nt appea rs to argue that in light of Dr. Rutledg e’s te s t i m o ny reg ardingthe d ef

endant’s mental difficulties, the de fenda nt did not possess the necessa ry mental state to commit these offe nses. Howe ver, a fter r eviewingboth Dr. Ru t l ed ge’ s t estimony and the-10-

testimony of Sg t. Merritt and Ms. Hill, who testified conce rning the circ umstances of the def endant’ s statements to police, the jury was not pe rsuade d that the defe ndant’s will wa s overr idden or that he was inca pable of actingintentionally

or knowing ly . The jury

instead ac cre d i t ed t h e testimony of Antonio L ampkins, who testified that the de fenda nt was the pe rson who devised the idea of robbing a store, a nd the def

endant’ s statement to police in which he admitted killing victim Alothmani.

Reg ardingthe def

endant’ s as s ertion t hat there was little proof to positively identify the defe ndant as the shooter , we note tha t “the identification of

a def endant a s the person who committed the offe nse for

which he is on trial is a que stion of fac t for the de termination of the jury upon consideration of all competent proof .” State v. Stri ck l an d
, 8 85 S.W .2d 85, 87 (Tenn. Crim. App. 1993) (c iting State v. Craw ford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982) ). I n this case, the defe ndant admitted to police that he w as t h e p erson who shot Alothmani. The de fenda nt’s confe ssion was corroborated by the t estimony of L ampkins, who said that the def endant, F letcher
, and a thi rd man p ro c e e de d to the sto re the night o f t he sh oo tin g , a s w e ll a s th a t of Ah me d, wh o s a id that two black men enter ed the store at the time of the off ense. A hmed testified that the men w ore wh ite ma sk s cov e ri ng the ir fa c e s, wh ic h co rr ob or a te d the de fe nd ant’ s sta te me nt t hat he c ov e re d h is fac e with a white t- shirt at the time of the inci d en t

. T h e d efe ndant’s stateme nts were further

corr oborate d by

J ones, who said that thre e men ran past him shortly afte r he left the store the nig ht of the shooting ; J ones said that the m en were “may be in their t eens,” one of them appea red to have a “sc arf or bandana or something” around his ne ck, and one of the men ca rried a handgun at his side. Thus, we c onclude that the e vidence was suff icient to establish that the def endant wa s the person who shot Alothmani. The evidenc e also established that the defendant, after devising the pla n to rob a store, e ntere d the L inc Minimarket and f ired two s h o t s , one of which struck Alothmani, killing him. As such, we aff

irm the defe ndant’s convictions for first deg ree felony murder a nd attempted
espec ially ag g ravated robbe ry

.

I n revie wing whether

the evidenc e wa s sufficie nt to sustain the defenda nt’s conviction for
ag g ravated assault ag ainst victim Ahmed, we note that Ahmed did not testify that the def

endant’ s actions plac ed him in fea

r. Howe ver, this cour

t ha s conclude d that the element of fea r of imminent bodily injury may be inferre d from the surrounding circ umstances. See State v. Dotson, 254 S.W .3d 37 8, 39 5- 96 (T e nn . 2 00 8) . I n this c a se , A hme d te sti fi e d th a t w he n th e de fe nd ant p la c e d th e g un in his face and dema

nded that Ahmed return inside the store, Ahmed place d his ha nds in the air, turne d around, r eente red the store, and told the defenda nt and the other assailant that he would give them the s t ore’ s money . This evidence was suff icient to establish that Ahmed wa s place d in fea r, and
g iven the def

endant’ s use of a

g un to place A hmed in fea r, the e vidence was sufficie nt to sustain the defe ndant’s convic tion for ag g ravated assault.

CONCLUSION

Upon considerat i o n of the for egoing and the r ecor d as a w hole, the judgments of the tria l
court a re a ffirme d.

_____________ _ _ _ _ _ _ _ _ _ _________-11- D. KELLY THOMAS, JR., JUDGE