State of Tennessee v. Michael Baker aka Michael Simmons

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 4, 2014

STATE OF TENNESSEE v. MICHAEL BAKER a/k/a MICHAEL

SIMMONS

Appeal from the Criminal Court for Shelby County

No. 13-00845 Chris Craft, Judge

No. W2013-02184-CCA-R3-CD - Filed January 27, 2015

Michael Baker a/k/a Michael Simmons (“the Defendant”) was charged with first degree

murder in the attempt to commit robbery, criminal attempt: especially aggravated robbery,

and criminal attempt: aggravated robbery. The jury convicted the Defendant as charged, and

the trial court sentenced him to life plus ten years. On appeal, the Defendant argues the

evidence was insufficient to support his convictions. After a review of the record and

applicable law, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which T HOMAS T.

W OODALL, P.J., and A LAN E. G LENN, J., joined.

Stephen Bush, District Public Defender; Robert Trent Hall and Jim Hale, Assistant Public

Defenders (at trial); and Phyllis Aluko, Assistant Public Defender (on appeal), Memphis,

Tennessee, for the appellant, Michael Baker a/k/a Michael Simmons.

Robert E. Cooper, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Alanda Dwyer and Lora Fowler,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Following a jury trial, Michael Baker a/k/a Michael Simmons (“the Defendant”)1 was

convicted and sentenced as follows:

Count Charge Victim Sentence

1 First Degree Murder in the Ronald Farmer Life

Commission of or Attempt to

Commit Robbery

2 Criminal Attempt: Especially Ronald Farmer 20 years

Aggravated Robbery

3 Criminal Attempt: Michael Griffin 10 years

Aggravated Robbery

The trial court ordered the sentences for Counts 1 and 2 to run concurrently with each other

but consecutively to the sentence for Count 3, for a total effective sentence of life plus 10

years.

On appeal, the Defendant claims the evidence was insufficient to support the

convictions. Upon review of the record and the applicable law, we affirm the judgments of

the trial court.

Factual Background

Around 12:00 a.m. August 26, 2011, Michael Griffin and Ronald Farmer were

walking down Elvis Presley Boulevard in Memphis toward Mr. Griffin’s mother’s

neighborhood for the purpose of buying marijuana. Because there was very light traffic at

that time of night, they noticed that a black van passed them three times. The third time the

van turned off Elvis Presley Boulevard onto Dunn Avenue. Because he was concerned about

the van, Mr. Griffin asked Mr. Farmer if he was armed, and Mr. Farmer responded that he

was.

As Mr. Griffin and Mr. Farmer approached Dunn Avenue, a man wearing a black

shirt, black hat, black gloves, and a black “veil” across his face came running toward them,

waiving a gun. Mr. Griffin and Mr. Farmer immediately froze and put their hands in the air.

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A co-defendant, Jamarius Barnum, was also charged for the same incident but was tried separately.

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The gunman told Mr. Griffin and Mr. Farmer to give him their money. Mr. Farmer said,

“Bro, we ain’t got nothing.” The gunman then shot Mr. Farmer. While pointing the gun at

Mr. Griffin, the gunman backed toward Dunn Avenue and got into the van on the passenger’s

side. The van drove away.

Mr. Griffin tried to help Mr. Farmer. First, Mr. Griffin threw Mr. Farmer’s gun into

the bushes on the side of the road because he did not want Mr. Farmer to get into trouble for

having a gun. Then he picked up Mr. Farmer and tried to walk down Elvis Presley

Boulevard to flag down a car for help. He stated that four cars passed him during this time,

but none stopped to help. However, the police arrived a few minutes after the shooting. Mr.

Griffin told the police that he and Mr. Farmer had been followed by “a black van that had a

silver chrome ladder on the right side of it [and a] spare tire marking on the back left side of

it.”

Approximately five minutes after the police arrived at the scene, Mr. Griffin learned

that other police units had stopped the van. The officers transported Mr. Griffin from the

scene of the shooting to the location where the van had been stopped. Mr. Griffin identified

the van and the passenger as the gunman.

Later that morning, Mr. Griffin was transported to the police department to give a

second statement. Mr. Griffin was shown a photo spread, but he was unable to identify the

gunman.

Mr. Griffin stated that he was standing about a foot away from Mr. Farmer when the

gunman appeared, and the gunman was about four to five feet away from Mr. Farmer when

he fired. According to Mr. Griffin, Mr. Farmer never reached for his own gun.

At trial, Mr. Griffin testified that even though the lighting conditions were not good

that night, he could see the gunman and the van. He did not see the driver. He confirmed

that the van parked on Dunn Avenue was the same van that he had seen before Mr. Farmer

was shot.

On cross-examination, Mr. Griffin confirmed that he had given statements to the

police, in which he said the suspect never pointed the gun at him. However, Mr. Griffin

maintained that this portion of his statements was incorrect. On redirect examination, Mr.

Griffin explained that the gunman waived the gun back and forth, before he intentionally

pointed the gun at Mr. Farmer. Mr. Griffin testified he was afraid for both his and Mr.

Farmer’s lives.

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Charles Benson testified that he was driving southbound on Elvis Presley Boulevard

around 12:15 am on August 26, 2011, when he saw two men coming out from a side street.

He stated that one of the men had his companion’s arm draped around his shoulder like he

was trying to help him. After Mr. Benson passed them, he continued to watch the men in his

rearview mirror and saw one of the men fall to the ground. When Mr. Benson crested the

next hill, he saw a police car. He stopped and told the officer that there were two men who

needed help. The police left in the direction he indicated, and Mr. Benson continued to a

nearby store. After he left the store, Mr. Benson stopped at the scene of the shooting to

check on the men. He also gave a statement to the police.

Officer Melissa Mahan of the Memphis Police Department testified that she and her

partner were completing a traffic stop near Elvis Presley Boulevard when a car pulled over

and reported that there was a man down near Dunn Avenue, which according to Officer

Mahan, was “literally just over the hill” from where they were. “Within a second” of leaving

the traffic stop she and her partner arrived at the scene. One black male was lying in the

roadway and another black male was standing beside him, screaming that they had been

robbed. Officer Mahan got a description of the suspect and van and radioed other units.

Within a few minutes, she received a radio communication that officers had stopped a van

matching the description. Officer Mahan’s partner left to help with the van, while Officer

Mahan stayed behind to secure the scene until additional officers arrived. Officer Mahan

observed that the man lying in the road appeared to have been shot and was bleeding.

Officer Justin Tutor of the Memphis Police Department testified that he responded to

Officer Mahan’s radio broadcast about the shooting. The description of the van matched a

vehicle he had previously seen in the neighborhood. Officer Tutor stopped the van a couple

of blocks from the scene of the shooting. He approached the passenger-side, and ordered the

occupants out of the vehicle. When the occupants did not comply, Officer Tutor opened the

passenger-side door and physically removed the passenger from the vehicle. Officer Tutor

identified the Defendant as the person he removed from the van.

Officer Tutor and his partner transported the Defendant and the van’s driver to the

police department. When the officers escorted the Defendant through a door bearing a sign

that read “homicide,” the Defendant asked, “Damn, is dude dead?” Neither Officer Tutor

nor his partner had said anything about the victim to the Defendant before the Defendant’s

comment.

Officer Marcus Mosby of the Memphis Police Department Crime Scene Investigation

Unit testified that he responded to the scene of the shooting at approximately 1:30 a.m. on

August 26, 2011. When he arrived at the scene, it had already been secured by uniformed

officers. He stated that the scene was not well lit but that street lights provided some light.

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While at the scene, Investigator Mosby photographed a .380 handgun found in the grass by

the road, a nine millimeter cartridge case found at the intersection of Dunn Avenue and Elvis

Presley Boulevard, and a substance he suspected was blood found on the street at the same

intersection. Officer Mosby collected the cartridge case and .380 handgun as evidence.

Sergeant Tim Murphy of the Memphis Police Department testified that he took Mr.

Griffin’s preliminary statement at the scene and a second statement at the police department.

Mr. Griffin explained that the gun found at the scene belonged to Mr. Farmer and that he

threw it into the grass because he was afraid Mr. Farmer would get into trouble for having

a weapon. Sergeant Murphy also photographed the Defendant when he was brought into the

police department. At the time of his arrest, the Defendant was wearing a black shirt and

black jeans.

On cross-examination, Sergeant Murphy read a portion of Mr. Griffin’s statement that

said, “Did the suspect ever point the gun in your direction? No, he just pointed his words at

me.” Sergeant Murphy confirmed that Mr. Griffin reviewed the statement and initialed the

bottom of each page.

Officer David Payment of the Memphis Police Department Crime Scene Investigation

Unit testified that after taking photographs, he conducted a search of the van at the police

department pursuant to a search warrant and recovered a nine millimeter pistol, two black

blouses, two brown gloves, two black gloves, and a red bandana. The pistol loaded with ten

live rounds was found under the mat on the front passenger-side floorboard. Officer Payment

stated that he was unable to find any fingerprints on the pistol. However, he stated that, if

the shooter was wearing gloves, then he would not expect to find fingerprints.

Dr. Karen Chancellor, Chief Medical Examiner for Shelby County, testified that she

conducted the autopsy of Mr. Farmer. Mr. Farmer had one gunshot wound on the left side

of his chest. Through x-rays, Dr. Chancellor determined that the bullet was still inside Mr.

Farmer’s body. She removed the bullet and sent it to the Tennessee Bureau of Investigation

(“TBI”) for analysis. Dr. Chancellor stated that there was no gunshot residue on Mr.

Farmer’s body or clothing, so she was unable to calculate the distance from which Mr.

Farmer was shot. However, she was able to determine that the bullet passed through both

lungs and the heart, causing massive internal bleeding and death.

TBI Special Agent Cervinia Braswell testified as an expert in firearms identification.

Agent Braswell compared the bullet identified as being recovered during Mr. Farmer’s

autopsy and the nine millimeter cartridge case found at the scene with bullets and cartridge

cases test fired by the Jimenez nine millimeter pistol identified as being recovered from the

van. Agent Braswell determined that the bullet recovered from the autopsy and the cartridge

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case found at the scene had the same unique markings, which she referred to as the

“mechanical fingerprint,” as those found on the bullets and cases from the test fired pistol.

She opined the bullet identified as coming from the autopsy and cartridge case identified as

being found at the scene were fired by the Jimenez nine millimeter pistol.

Sergeant Joe Stark of the Memphis Police Department testified that he took the

Defendant’s statement. Before questioning him, Sergeant Stark advised the Defendant of his

Miranda rights. The Defendant waived his rights and gave a statement, which was reduced

to writing. In his statement, the Defendant admitted to killing Mr. Farmer. The Defendant

stated that, earlier in the day on August 26, 2011, Jamarius Barnum asked him if he wanted

to participate in a robbery. At first, the Defendant said no, but he eventually agreed to

participate and told Mr. Barnum to pick him up at his house at 10:30 that evening.

By the time that Mr. Barnum arrived at the Defendant’s house, the Defendant claimed

he had decided not to participate in the robbery, but he did not communicate that to Mr.

Barnum. Instead, the Defendant drove the van around the neighborhood trying to run the van

out of gas so that he would have an excuse to abandon the robbery plan. However, when the

Defendant stopped to use the restroom, Mr. Barnum took over driving and drove the van

through the Bunker Hill neighborhood to find someone to rob. While driving down Elvis

Presley Boulevard, they saw two men walking down the road. Mr. Barnum turned into a side

street and parked the van. He gave the Defendant a gun and showed him how to operate the

safety. Mr. Barnum instructed the Defendant to leave the safety on. The Defendant exited

the van and jogged toward the two men. When he was about four to five feet away from

them, the Defendant demanded their money. At this point, the Defendant said:

. . . I realized I still have the safety on from when [Mr. Barnum] put it on, so

I’m fumbling with the safety trying to get it off. When I felt like I did turn the

safety on I aimed the gun back at [Mr. Farmer] and kept asking for the money.

The next thing I know the gun went off and when I regained focus I looked

back at the dude and I seen [sic] him holding his face and falling to the ground.

That’s when I realized I might [sic] hit him so I panicked and ran to the van.

When asked what he was wearing at the time of the shooting, the Defendant said he

was wearing a black t-shirt, black shoes, black gloves, and a black blouse as a mask. He said

the last time he saw the gloves and blouse, they were in the van. He also stated that Mr.

Barnum was a member of a gang. At the end of his statement, the Defendant said he did not

want to harm anyone; he was confused as to whether the gun’s safety mechanism was on, and

he thought he had turned it on so that it would not shoot.

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Based upon the evidence, the jury found the Defendant guilty as charged on all three

counts.

Analysis

First degree felony murder is, “A killing of another committed in the perpetration of

or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery,

burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child,

aggravated rape of a child, or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (2010).

The mens rea required for a conviction of first degree felony murder is the intent to commit

the underlying offense. Tenn. Code Ann. § 39-13-202(b) (2010). In this case, the underlying

offense was criminal attempt: especially aggravated robbery of Mr. Farmer and/or criminal

attempt: aggravated robbery of Mr. Griffin. As charged in this case, a person commits

criminal attempt when the person, acting with the kind of culpability otherwise required for

the offense, “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.” Tenn. Code Ann. § 39-12-101(a)(3) (2010). Additionally, “[c]onduct does not

constitute a substantial step under subdivision (a)(3) unless the person’s entire course of

action is corroborative of the intent to commit the offense.” Tenn. Code Ann. § 39-12-101(b)

(2010). Especially aggravated robbery is a robbery accomplished with a deadly weapon

where the victim suffers seriously bodily injury. Tenn. Code Ann. § 39-13-403(a) (2010).

Robbery is “the intentional or knowing theft of property from a person of another by violence

or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2010).

Regarding the Defendant’s conviction for criminal attempt: aggravated robbery of Mr.

Griffin, as charged in this case, aggravated robbery is defined as a robbery “[a]ccomplished

with a deadly weapon or by display of any articles used or fashioned to lead the victim to

reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1) (2010).

Criminal attempt as charged in this case and robbery are defined above.

Sufficiency of the Evidence

Our standard of review for a sufficiency of the evidence challenge is “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R. App. P. 13(e).

Questions of fact, the credibility of witnesses, and weight and value to be given the evidence

are resolved by the fact finder. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),

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superseded on other grounds by Tenn. R. Crim. P. 33 as stated in State v. Moats, 906 S.W.2d

431, 434 n.1 (Tenn. 1995). This Court will not reweigh the evidence. Id.2

A guilty verdict destroys the presumption of innocence, replacing it with a

presumption of guilt. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982). The defendant bears the burden of illustrating why the

evidence was insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639

S.W.2d at 914. Our standard of review “is the same whether the conviction is based upon

direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)) (internal quotation marks

omitted). On appeal, the “State must be afforded the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221

S.W.3d 514, 521 (Tenn. 2007).

The Defendant argues that the evidence was insufficient to convict him because the

State failed to “disprove” the Defendant’s claims in his statement to the police that he did not

want to participate in the robbery and that he mistakenly shot Mr. Farmer while trying to

ensure the gun’s safety mechanism was on.3 Additionally the Defendant argues that the jury

should have received an instruction as to the affirmative defense of renunciation, and that if

the jury had been so instructed, there was insufficient evidence to prove beyond a reasonable

doubt that he intended to commit robbery.

Tennessee defines renunciation, in pertinent part, as “an affirmative defense to a

charge of criminal attempt . . . that the person, after committing the criminal attempt . . .

prevented the successful commission of the offense attempted . . . under circumstances

manifesting a complete and voluntary renunciation of the person’s criminal purpose.” Tenn.

Code Ann. § 39-12-104 (2010). Since renunciation is an affirmative defense, the defendant

bears the burden of raising it at trial, and it must be established by a preponderance of the

evidence. State v. Jackson, 946 S.W.2d 329, 332 (Tenn. Crim. App. 1996), Id., Sentencing

2

In his brief, the Defendant urges this Court to reconsider the Jackson standard, contending that a

closer look at that case requires us to affirm a conviction only if the evidence would convince “the average

mind” of the defendant’s guilt beyond a reasonable doubt. We decline.

3

The Defendant did not file a pretrial notice of his intent to rely on the affirmative defense of

renunciation. Even so, the Defendant claims the trial court should have instructed the jury on renunciation

because the State had notice of the defense as a result of the Defendant’s written statement that the Defendant

did not want to commit the robbery, attempted to prevent the robbery from occurring, and fled without

completing the robbery. The defendant claims that a renunciation defense was “fairly raised” by the proof

at trial.

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Comm’n Comments (2010). The defense only applies “when the offender: (1) prevents

successful completion of the ultimate offense; and (2) voluntarily renunciates the criminal

purpose.” Id., Sentencing Comm’n Comments (2010).

The State argues that, because the Defendant did not raise the affirmative defense of

renunciation at trial, this Court is barred from considering the issue on appeal. Additionally,

the State notes that renunciation only applies to criminal attempt, solicitation, or conspiracy,

see Tenn. Code Ann. § 39-12-104 (2010), and therefore it does not apply to the Defendant’s first

degree murder conviction. Finally, the State contends that, although the Defendant did not

consummate the robbery, his failure to do so did not amount to “circumstances manifesting

a complete and voluntary renunciation of [his] criminal purpose.” See id. .

In this case, the Defendant did not give pretrial notice that he intended to rely on a

renunciation defense. Additionally, the Defendant never argued renunciation as a defense

at trial. Therefore, he failed to comply with the notice requirement to justify a jury

instruction as to renunciation.

In some circumstances, without the request of the defendant, trial courts are obligated

to give instructions to the jury as to the law governing issues or defenses raised by the

evidence presented at trial. State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013). However,

that obligation only extends to general defenses. Id. Affirmative defenses require pretrial

notice,4 and the question of their existence cannot be submitted to the jury unless it has been

“fairly raised” by the proof and proper notice has been provided. Tenn. Code Ann. § 39-11-

204 (c)(1), (d) (2010); Hawkins, 406 S.W.3d at 129 n.9. We conclude that renunciation was

not fairly raised by the proof and that the Defendant was not entitled to a renunciation

instruction.

Viewed in a light most favorable to the State, the evidence shows that the Defendant

and Mr. Barnum were looking for victims to rob. The Defendant exited the van with a gun

and approached the victims with the intent to rob them. The Defendant pointed the gun at

Mr. Farmer and demanded he and Mr. Griffin give him their money. During the

confrontation, the Defendant shot Mr. Farmer who died as a result of the gunshot wound.

The Defendant does not deny any of these events happened. Moreover, by convicting the

Defendant as charged, the jury discredited his statement to police that he did not want to go

through with Mr. Barnum’s robbery scheme. See Bland, 958 S.W.2d at 659 (stating a guilty

4

“If a person intends to rely upon an affirmative defense, the person shall, no later than ten (10) days

before trial, notify the district attorney general in writing, or at such time as the court may direct naming the

affirmative defense(s) to be asserted, and file a copy of the notice with the clerk.” Tenn. Code Ann. § 39-11-

204(c)(1) (2010).

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verdict accredits the testimony of the State’s witnesses and resolves all conflicts in the

evidence in favor of the State’s theory). Therefore, we find that the evidence was sufficient

to support the Defendant’s convictions for first degree felony murder and criminal attempt:

especially aggravated robbery of Mr. Farmer.

Viewed in a light most favorable to the State, the evidence shows that the Defendant

approached Mr. Griffin and Mr. Farmer with a gun. He waived the gun back and forth

between the victims, eventually aiming the gun at Mr. Farmer. He demanded Mr. Griffin and

Mr. Farmer to give him money. Mr. Griffin stated that the was in fear for his life. We find

that this evidence was sufficient to support the Defendant’s conviction of criminal attempt:

aggravated robbery of Mr. Griffin.

Conclusion

For the aforementioned reasons, we affirm the judgment of the trial court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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