State of Tennessee v. Frederick Keith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 24, 2015 Session

STATE OF TENNESSEE v. FREDERICK KEITH

Direct Appeal from the Criminal Court for Knox County

No. 93721 Steven W. Sword, Judge

No. E2014-00448-CCA-R3-CD – Filed July 16, 2015

The appellant, Frederick Keith, was convicted in the Knox County Criminal Court of first

degree felony murder, and the trial court sentenced him to life. On appeal, the appellant

contends that the evidence is insufficient to support the conviction, that the trial court

erred by failing to grant his motion to sever his case from that of his co-defendant, and

that the State committed prosecutorial misconduct during closing arguments by vouching

for the credibility of State witnesses. Based upon the oral arguments, the record, and the

parties‟ briefs, we affirm the judgment of the trial court.

Tenn. R. App. 3 Appeal as of Right; Judgment of the the Criminal Court is

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ROBERT L. HOLLOWAY, JR., JJ., joined.

Robert R. Kurtz, Knoxville, Tennessee, for the Appellant, Frederick Keith.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Charme P. Allen, District Attorney General; and Leslie R. Nassios, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background

In February 2010, the Knox County Grand Jury indicted Michael Lambdin,

Anthony White, and the appellant for first degree felony murder committed during their

attempt to rob Vincent Presutto, who was shot and killed. On the morning of the first day

of trial, the State orally moved to sever White‟s trial from that of his co-defendants. The

trial court granted the motion, and the appellant and Lambdin proceeded to trial.

Barbara Eaton testified that on December 17, 2009, she was living in the

Woodgate apartment complex on Cedar Lane in Knoxville and that her apartment was

“[r]ight behind” apartment 109. About 11:15 p.m., Eaton returned home from work and

pulled into the parking lot. She saw a small, dark-colored pickup truck with “Mazda” on

the tailgate. The truck was in Eaton‟s parking space, and she noticed that the truck‟s

headlights were turned off but that its parking lights were turned on. She said that the

truck “started creeping a little bit” so that it eventually moved out of her space and into a

space across from where she usually parked. Eaton could not see how many people were

inside the truck.

Eaton testified that as she was backing into her parking space, she hit something.

She said that she stopped and that a young, white male “come running around and

stopped right at my window for a second.” Eaton looked at the male, he looked at her,

and he ran to the truck and got in. Eaton described the male as short, blonde, blue-eyed,

and wearing a camouflage jacket. She turned off her car engine and heard someone

yelling for help. Eaton looked to her left and saw a second male “come running out

through the breezeway.” The pickup truck pulled up to the sidewalk, and the second

male “jumped” into the truck. The truck pulled onto Cedar Lane with its headlights still

turned off.

Eaton testified that as she was walking to her apartment, she received a telephone

call from a friend who worked at 911. The friend told her, “„Go in the house. There was

just a shooting.‟” Eaton walked to the victim‟s apartment to see if she could help and

saw the victim lying on the ground. She said that his apartment door was open and that

she saw “quite a bit of blood.” In the early morning hours of December 18, an

investigator showed Eaton a photograph array, and she identified the first male‟s

photograph. She said that about one and one-half minutes elapsed between her seeing the

first male and the second male.

On cross-examination by the appellant, Eaton acknowledged that she identified

Lambdin as the first male. She said that the second male had dark hair and was wearing a

camouflage jacket but that she could not identify him. On cross-examination by

Lambdin, Eaton testified that the second male “[ran] as fast as he could to the truck” but

that the first male “ran slower to the truck.” Eaton never heard a gunshot.

Alan Bull of Knox County 911 testified that on December 17, 2009, the 911 center

received calls about a shooting. The State played the audio-recorded calls for the jury.

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During the first call, which was recorded at 11:19 p.m., a woman reported that someone

in her apartment complex had been shot. She said she heard one gunshot, went outside,

and heard a man screaming, “Help me, help me!” The caller, who was inside her

apartment, said that the victim was outside and that “I don‟t hear him anymore.” During

the second call, a woman reported that she heard a man calling for help and that he

sounded like he was in pain. During the third call, which was recorded at 11:20 p.m., the

victim telephoned 911 but hung up or was disconnected. The dispatcher called the

victim‟s cellular telephone, and the victim answered. The victim yelled, “Help me!” and

“701 Woodgate!” The victim said he had been shot and continued to yell for help. The

victim said “help” one last time before the call ended. In the fourth call, which was

recorded at 11:21 p.m., a man said that he heard a gunshot and that someone was outside

his apartment, screaming for help. He said that he heard “a big bang” and that he did not

know if the victim “fell or what.” During the fifth call, a man reported that a male had

been shot, that the victim was lying on the sidewalk, and that the victim had “lost a ton of

blood.”

Shane Hunter Williams, who made the fourth call to 911, testified that on

December 17, 2009, he was watching television in his living room when he heard “a loud

bang” and “a man start yelling for help.” Williams went upstairs, looked out his bedroom

window, and saw the victim lying on his back near a concrete retaining wall that was

three to four feet tall. Williams said that prior to the shooting, he heard voices and “some

yelling or something like that. I wasn‟t sure how many people or what was going on, but

it got my attention.”

On cross-examination by the appellant, Williams testified that he heard “[j]ust

some vague voices” prior to the shooting and that he did not hear a struggle or anyone

running. He said he had never seen the victim before December 17.

Jack Dixon testified that on December 17, 2009, he lived in the Woodgate

apartment complex and went to bed about 11:30 p.m. Dixon said that he heard a gunshot,

that he heard “someone holler for help,” and that he immediately called 911. He said that

he had worked for the sheriff‟s department for twenty-seven years, that he had been a

hunter for fifty-five years, and that the gunshot was fired from “a large-caliber weapon,

either a short barrel rifle or a large magnum type pistol.” Dixon looked out his kitchen

window but did not see anyone. He got dressed, went outside, and saw the victim lying

in a fetal position. The victim had lost a lot of blood and appeared to be deceased. The

door to the victim‟s apartment was open, and Dixon saw “a large amount of blood in the

front door into the kitchen area.” A light inside the victim‟s apartment was on, and

Dixon saw a four-inch stainless steel or nickel-plated revolver in the doorway. He said

several police officers arrived and protected the crime scene for detectives.

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On cross-examination by the appellant, Dixon testified that he did not know the

victim, that he did not hear any fighting before the shooting, and that he did not hear

footsteps leave the scene. He said that more blood was outside where the victim was

lying than inside the apartment but that “there was a trail of blood there and down the

steps . . . on the porch.”

Jason Huiting testified that he and the victim were friends for three or four years.

In December 2009, the victim lived in the Woodgate apartment complex and was a

bartender and server at Wild Wings Café. The victim had a young son and was married

but was separated from his wife. Huiting said that the victim was addicted to opiates, that

the victim had a prescription for pain pills, and that the victim sometimes sold the pills.

On the night of December 17, Huiting went to the victim‟s apartment and stayed ten to

fifteen minutes. The victim did not make any telephone calls during that time, and

Huiting did not know if the victim was expecting anyone else at the apartment after he

left. About 3:00 a.m. on December 18, Huiting learned about the shooting and contacted

the Knoxville police.

On cross-examination by the appellant, Huiting testified that the victim had been

using pain pills for as long as he had known the victim and that the victim had filled a

prescription on December 17. On cross-examination by Lambdin, Huiting acknowledged

that the victim was a “small time” drug dealer and that the victim usually kept his

apartment door locked.

Gerald Smith testified that in 2009, he processed crimes scenes for the Knoxville

Police Department (KPD) Forensic Unit and arrived at the scene at 11:32 p.m. on

December 17. The victim was receiving medical treatment just outside apartment 109.

After paramedics removed the victim, Smith photographed apartment 109 and the area

outside the apartment. Smith noticed “an obvious bullet hole in the door near the opening

side.” The hole went through the door.

Smith testified that he collected the victim‟s cellular telephone, which had been on

the ground near the victim; the victim‟s eyeglasses, which were at the base of a short set

of steps coming down from the victim‟s apartment; a camouflage baseball cap that was

just inside the doorway of the apartment; a red, white, and blue toboggan that was outside

on a ledge near the victim; and a cigarette on the ground below the toboggan. The

cigarette was still burning. Smith saw a Smith and Wesson forty-four-caliber, six-shot

revolver inside the apartment. The gun was on the floor between a tiled foyer area and

the living room carpet and contained five unfired cartridges and one spent cartridge. The

gun was three feet inside the door. The camouflage cap also was in the tiled foyer area

but was near the entrance to the kitchen. Blood was in the kitchen, demonstrating that the

victim had walked into the kitchen after he was shot. Blood also was on the steps outside

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the apartment door and led to “the main blood pool where the victim was found.” Smith

opined that the victim had been shot inside the doorway of the apartment and that the

victim then moved around, ending up outside the apartment.

Smith testified that officers searched the apartment and found two empty

prescription bottles and a drugstore receipt. One of the bottles showed that hydrocodone

had been prescribed to the victim. The drugstore receipt showed that the victim had filled

a prescription for 120 oxycodone pills that day. However, officers did not find any drugs

in the apartment. The bullet hole in the apartment door was fifty-two inches from the

base of the door. A trajectory rod inserted into the hole showed that the bullet was fired

at an angle and slightly downward and that the door was open when the gun was fired.

Smith estimated that the door was open twelve to sixteen inches at the time of the

shooting. The victim was shot in the shoulder; therefore, his body had to be lower than

fifty-two inches when he was shot.

On cross-examination by the appellant, Smith testified that blood was underneath

the camouflage cap in the foyer and that he believed the hat fell onto the blood. The cap

was twenty-eight to thirty inches from the front door and two feet from the gun. Smith

said that he thought the victim was in the center of the foyer at the time of the shooting

and that the victim was closer to where the gun was found than where the cap was found.

On cross-examination by Lambdin, Smith testified that he thought the victim was

crouched down, trying to keep the shooter out of the apartment, when the victim was

shot.

Investigator Timothy Schade of the KPD Forensic Unit testified that he assisted

Gerald Smith with processing the crime scene and that he photographed the gun. Blood

was on the weapon. Investigator Schade, a certified latent fingerprint examiner, collected

fingerprints from the front door, and the prints appeared to be from the three middle

fingers of someone‟s hand. Investigator Schade compared the prints to known

fingerprints from the victim, the appellant, Lambdin, and Jason Huiting, but the prints on

the door did not match anyone. On cross-examination by the appellant, Investigator

Schade testified that he was unable to obtain fingerprints from the gun or the cartridges

inside the gun.

Patricia M. Resig of the KPD testified as an expert in firearms identification that

she examined the revolver found in the victim‟s apartment, one fired cartridge case from

the gun, five “live” rounds from the gun, and a bullet recovered from the victim. She

concluded that the fired cartridge case was fired in the gun and that the bullet from the

victim passed through the barrel of the gun. Resig said that the gun was an older-model

Smith and Wesson but that it was “in pretty good condition.” She described it as a

“powerful weapon,” firing large-caliber bullets.

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On cross-examination by the appellant, Resig testified that she tested the gun and

that ten to eleven pounds of pressure were needed to fire it. If the hammer was already

cocked, though, only four to five pounds of pressure were needed to fire the weapon.

Natalie Freeman testified that in December 2009, she was dating Anthony White

and lived on East Oldham Avenue in Knoxville. Freeman had known the appellant for a

long time and thought of him as her brother. She also knew Lambdin but did not know

him well. On the night of December 17, White and the appellant brought Lambdin to

Freeman‟s house “because we were all going to be drinking.” The three men arrived

about 9:30 or 10:00 p.m., and everyone consumed rum. At some point, Freeman was in

the kitchen alone and heard the appellant and Lambdin talking on the back porch. The

appellant and Lambdin were talking about Lambdin arranging to buy pills from the

victim. Lambdin wanted the appellant and White to help him because Lambdin wanted

to rob the victim. White was to drive the appellant and Lambdin to the victim‟s

apartment, and the appellant was to be Lambdin‟s “muscle.”

Freeman testified that prior to the three men leaving for the victim‟s apartment,

Lambdin talked to the victim on the telephone, and Freeman saw Lambdin pull a gun out

of his pocket. She described the weapon as “a handgun, big, silver, had a six-shooter

type spin on it.” The men left Freeman‟s house about 11:00 p.m. in White‟s small Mazda

pickup truck. Lambdin was wearing blue jeans, a t-shirt, a camouflage jacket, and a

camouflage baseball cap, and the appellant was wearing blue jeans, a t-shirt, a colorful

hoodie, and a red and blue toboggan.

Freemen testified that the men were gone for twenty-five to thirty minutes. When

they returned, the appellant and Lambdin were not wearing their hats, and Lambdin did

not have his gun. Freeman said that the appellant was “out of sorts” and very pale and

that Lambdin was crying and yelling. Lambdin was upset that his gun was gone because

it had been “passed down to him.” Freeman said that she parked White‟s truck down the

street from her home because she did not want the police to come to her house and that

she wanted him to “get rid” of the truck. The next morning, White drove the truck

somewhere. At some point, Freeman heard a description of White‟s truck on the news

and that the police were looking for two white males. On December 27, 2009, Freeman

talked with Investigator Charlie Lee and gave a statement but was “[n]ot completely”

truthful with the officer. She said that she knew Lambdin, White, and the appellant were

going to the victim‟s house to rob the victim of oxycodone on December 17 and that she

did not alert the police or the victim.

On cross-examination by Lambdin, Freeman acknowledged that she did not want

to testify against the defendants. She said she overheard the appellant‟s and Lambdin‟s

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conversation about planning the robbery while she was in the kitchen and they were on

the porch. She said that the appellant‟s “idea was that they could just go in at the same

time and just rob him flat out, just in and out.” However, Lambdin “was concerned that

[the victim] would know he had been set up.” When the men returned to Freeman‟s

home after the shooting, the appellant told Freeman what had happened. He told her that

Lambdin went inside the victim‟s apartment, came outside, and was running. The gun

was on the ground. The appellant picked up the gun, and he and the victim fought over

it. During the struggle, the gun “went off,” and the appellant ran away.

Freeman acknowledged that after the men returned to her house from the victim‟s

apartment, Lambdin was crying and vomiting. She also acknowledged that she believed

the gun fired accidentally. The appellant did not tell her that the victim was shot through

the door or that he hit the victim with the weapon. She said she helped the appellant

leave Tennessee after the shooting by giving him one hundred dollars. However, the

appellant returned to Tennessee and was with Freeman when she talked with Investigator

Lee on December 27. Freeman acknowledged that, according to her statement to the

investigator, she and White were in her bedroom when she heard the appellant and

Lambdin talking on the porch. She explained that she heard them talking from her

bedroom, that she went into the kitchen alone, and that she heard them conversing on the

back porch. Freeman acknowledged telling Investigator Lee that Lambdin said after the

shooting, “„I didn‟t think that was going to happen. . . . I didn‟t mean for all that to

happen.” She also acknowledged that she did not tell Investigator Lee that Lambdin was

upset about losing his gun. She told the officer that the appellant and Lambdin did not

take anything from the victim.

On cross-examination by the appellant, Freeman acknowledged that Lambdin was

proud of his gun. She denied insisting that White drive the appellant and Lambdin to the

victim‟s apartment. She acknowledged that it was Lambdin‟s plan to telephone the

victim, that Lambdin had “dealt” with the victim previously, and that Lambdin was mad

at the victim because the victim kept increasing the price of the pills. She also

acknowledged that Lambdin did not want to lose the victim as his “dealer” and, therefore,

that Lambdin “set this up to look like he was . . . being robbed as well.” While the men

were gone to rob the victim, Freeman continued to drink rum. When they returned to her

home, she was intoxicated. Freeman said she was not completely honest with

Investigator Lee because she was trying to protect White and the appellant but that she

thought she “was pretty up front about everything” Investigator Lee asked her.

Co-defendant Anthony White testified that he had known the appellant three or

four years and Lambdin since middle school. On the night of December 17, 2009, White

and the appellant were at Natalie Freeman‟s house. White‟s telephone rang, and the

appellant answered it. The call was from Lambdin. After the appellant spoke with

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Lambdin, the appellant told White that Lambdin wanted to come to Freeman‟s house to

“hang out.” White and the appellant drove White‟s pickup truck to the IHOP on

Merchants Road, picked up Lambdin, and drove back to Freeman‟s house. White said

that during the drive, the appellant and Lambdin talked about robbing “this guy that had

Roxies that just came back from Florida.” Lambdin said he had his “papaw‟s” gun, said

he knew the victim, and referred to the victim as a “pushover.” White did not know the

victim or where the victim lived.

White testified that after being at Freeman‟s house for twenty or thirty minutes,

he, the appellant, and Lambdin decided to go to the victim‟s apartment. He said that as

they were getting ready to leave, the appellant “came up to me and showed me the gun

and said we got to ride out here to do that, so we all loaded up in the truck and took off.”

White knew they were going to rob the victim of pills, and Lambdin directed White to the

victim‟s apartment. When they arrived in the Woodgate parking lot, they discussed that

Lambdin was going to knock on the victim‟s door and that the appellant was going to run

into the apartment, point the gun at the victim, and rob the victim. Lambdin was

supposed to return to the truck during the robbery. White said that Lambdin and the

appellant got out of the truck and went to the victim‟s apartment. Lambdin was wearing

a Carhartt jacket, and the appellant was wearing a “Mario beanie.” White waited in the

truck but had to back out of the parking space it was in because another vehicle wanted to

park there. While the other vehicle was moving into the space, it almost hit Lambdin.

White said Lambdin got into the truck and “seemed skittish, scared.” Two or three

minutes later, the appellant ran to the truck and told White, “Go fat man. Go.” Neither

man was wearing a hat when he returned to the truck.

White testified that the appellant was angry and that the appellant started punching

the dashboard. The appellant was “mainly” angry at Lambdin because Lambdin had said

that the appellant was a “pushover” and that the robbery “would be easy.” The appellant

said that the victim fought back and that the gun “went off.” When the three men

returned to Freeman‟s house, Lambdin kept asking the appellant if the appellant was

going to kill him. White learned that they had left the gun at the apartment complex, and

Lambdin said that “his grandmother was going to kill him.” The appellant was upset that

he had lost his beanie and did not know if he had shot the victim. The appellant and

Lambdin told White that “they didn‟t get nothing” from the victim. Freeman decided that

she and White would park White‟s truck at St. Mary‟s hospital.

White testified that he talked with Investigator Lee twice after the shooting. The

first time, he pretended not to know anything about the incident. He said he was not

truthful with the officer because he was scared he was going to get into trouble. He

acknowledged that he was charged as a principal offender in this case and that he and the

State had an agreement regarding his testimony and cooperation.

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On cross-examination by the appellant, White acknowledged that in order to keep

his “deal” with the State, he had to testify truthfully. He said his agreement with the

State was a guilty plea in exchange for a thirteen-year sentence to be served as one year

in jail and twelve years “on paper.” However, he had not yet pled guilty and did not

remember to what offense he was going to plead guilty. White spoke with Investigator

Lee on December 29, 2009, and February 6, 2010, and lied to the officer both times. He

was arrested and charged with first degree murder on February 6, 2010; had his bond

originally set at $150,000; and spent almost one month in jail. He acknowledged that his

attorney worked out a “deal” with the State so that he was released on a $1,000 bond,

which was an unusual amount for a felony murder charge.

White acknowledged that he was intoxicated on the night of December 17, 2009,

and that Lambdin “came up with this plan.” At some point that night, Lambdin showed

the gun to White. Lambdin told White that the gun had belonged to his grandfather and

that it was a family heirloom. The appellant also showed the gun to White. White

acknowledged that Freeman insisted that he drive to the victim‟s apartment and said that

she wanted him to drive because they were using his truck to commit the robbery. He

said that he did not think Freeman helped plan the robbery but that “[s]he could have.”

White stated that he had had mental problems, which included hearing voices and having

hallucinations, “[a]s far back as I remember” and that he used to meet with a mental

health specialist. He acknowledged that he consumed alcohol and smoked marijuana on

December 17, 2009, but said that he had been “clean” since he got out of jail.

On cross-examination by Lambdin, White acknowledged that he was twenty-one

years old when he spoke with Investigator Lee and that some of what he told the officer

was true. For example, White told Investigator Lee that he and the appellant were close

friends; that the appellant claimed he and the victim struggled over the gun; and that the

appellant claimed the gun “went off.” He acknowledged that he did not want to testify

against the appellant. He also acknowledged that the appellant was angry after the

shooting because the victim had fought back and because the appellant had lost his

toboggan. White said that he was two years older than Lambdin and that Lambdin began

buying marijuana from him in 2008. Lambdin was addicted to pain pills and met the

appellant and Freeman through White. White said that after he and the appellant picked

up Lambdin at the IHOP on December 17, Lambdin explained the plan to rob the victim.

The appellant decided that Lambdin should knock on the victim‟s door, and Lambdin

said he would “get out of the way” so that the appellant could rob the victim. White did

not tell Freeman about the plan. He said that before he, the appellant, and Lambdin left

Freeman‟s house to rob the victim, the appellant had Lambdin‟s gun. White said that

despite being intoxicated on the night of the shooting, he could not forget what happened

because “[i]t haunts me.”

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Kim Lusignan, a special agent forensic scientist with the Tennessee Bureau of

Investigation (TBI), testified as an expert in DNA analysis that she analyzed DNA found

on the toboggan, the cigarette, and fingernail scrapings from the victim and compared the

results to known standards from the appellant, Lambdin, and the victim. Agent Lusignan

found two small areas of blood on the toboggan, and the blood was that of the victim.

She found skin cells inside the toboggan. The appellant was a major contributor of the

cells, and an unknown male was a minor contributor. DNA on the cigarette was that of

an unknown male, and DNA from the victim‟s fingernail scrapings was that of the victim.

On cross-examination by the appellant, Agent Lusignan testified that she did not receive

a camouflage cap for testing.

Investigator Charles Lee of the KPD testified that he was in charge of

investigating this case, that he went to the Woodgate apartments on the night of

December 17, 2009, and that paramedics had already transported the victim to the

hospital. He observed the crime scene inside and outside the victim‟s apartment. He saw

empty prescription bottles in the apartment and suspected that the shooting could have

been related to prescription drugs. He spoke with Barbara Eaton and determined that

three suspects probably were involved. Eaton also gave a good description of the

getaway vehicle. Investigator Lee learned that the victim had died upon arrival at the

hospital or shortly thereafter and went to the home of the victim‟s next of kin, Jennifer

Presutto, to tell her that the victim was deceased. Ms. Presutto was very distraught but

gave Investigator Lee the names of the victim‟s friends and acquaintances. One of those

names was “Michael Lambdin,” and Investigator Lee found a contact phone number for

“„Lambdin‟” in the victim‟s cellular telephone. Investigator Lee also knew from the

phone that the victim had contact with Lambdin within thirty minutes of the victim‟s

death. He prepared a photograph array containing Lambdin‟s photograph and showed it

to Eaton. Eaton identified Lambdin as the first male she saw on the night of December

17.

Investigator Lee testified that he also determined that he needed to speak with

Anthony White and Natalie Freeman. Freeman corroborated some of the evidence found

at the crime scene, such as the toboggan, and corroborated the getaway vehicle.

Investigator Lee obtained the records for the victim‟s and Lambdin‟s cellular telephones,

and the records revealed contact between the two phones throughout the afternoon and

evening hours of December 17, 2009. The State introduced the records into evidence.

On cross-examination by Lambdin, Investigator Lee testified that a prescription

receipt found in the victim‟s apartment showed that an oxycodone prescription had been

filled on December 17 at a local pharmacy. Investigator Lee searched the victim‟s

apartment for the prescription bottle but never found it. On cross-examination by the

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appellant, Investigator Lee testified that he did not perform gunshot residue tests on

anyone or submit the camouflage cap found in the victim‟s apartment to the TBI for

testing.

Steven Cogswell, the Deputy Chief Medical Examiner for Knox and Anderson

Counties, testified as an expert in anatomic and forensic pathology that he performed the

victim‟s autopsy. The victim‟s primary injury was a gunshot wound of intermediate

range, meaning that the muzzle of the gun was a couple of feet from the victim when it

was fired. The bullet entered the victim‟s right collar bone area, broke his collar bone,

and lacerated the blood vessels directly beneath his collar bone. The bullet moved into

the victim‟s chest wall and stopped in the soft tissue of his back. It did not strike his

heart or lungs. The victim bled to death from the injury to his subclavian artery and vein.

Dr. Cogswell testified that the victim also had two scalp wounds that were

consistent with his having been struck by the revolver. One of the wounds was a “Y-

shaped abraded laceration,” seven-eighths of an inch long, and just to the left of the top of

the victim‟s head. The second wound was “a very slightly depressed skull fracture”

above the victim‟s hairline. The victim also had two abrasions between the thumb and

forefinger of his right hand. During the autopsy, Dr. Cogswell examined the revolver

recovered from the crime scene. He concluded that the ejector rod on the gun probably

caused the Y-shaped laceration and that the frame of the gun caused the injury near the

victim‟s hairline. He said the two abrasions on the victim‟s right hand matched the top of

the revolver‟s frame and occurred when the victim grabbed the barrel of the gun “right

around the frame.”

Dr. Cogswell testified that he examined photographs of the crime scene and

concluded that the muzzle of the gun was probably within one foot of the door when it

was fired. No soot was on the victim, but gunpowder stippling was on his chin and neck.

Dr. Cogswell said that an area under the victim‟s chin was free of stippling, meaning that

something had blocked the gunpowder, and that the victim‟s injuries were consistent with

the bullet‟s having passed through the door and striking the victim. He stated that he

inserted a trajectory rod into the gunshot wound and that the rod showed the bullet

traveled downward and slightly left to right. The victim was sixty-six inches tall and was

probably “down a little bit” when he was shot. However, the bullet hole in the door was

too high for the victim to have been “all the way in a ball on the floor.”

Dr. Cogswell testified that the victim would have been able to walk, run, and

speak after he was shot and that his head injuries could have occurred after the shooting.

He said that because the victim‟s hand was around the gun at some point and because the

gun was found inside the apartment, “it makes sense that he‟s actually taking the gun

away from the person who shot and killed him.” The victim was still alive when he

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arrived at the hospital but died during surgery. Toxicology tests showed that his blood

contained a therapeutic level of methadone but a “relatively high,” even lethal, level of

oxycodone. The victim‟s urine showed that he recently had used marijuana; cocaine;

oxycodone; methadone; and ditiazem, a cardiac drug. Dr. Cogswell said that if the gun

was in proper working order, the trigger had to be pulled in order for it to fire.

On cross-examination by Lambdin, Dr. Cogswell testified that the stippling on the

victim resulted from gunpowder that traveled around the door. He acknowledged that a

likely sequence of events was that someone shot the victim, the victim received the head

injuries, the victim grabbed the gun, and the gun ended up on the floor.

On redirect examination, Dr. Cogswell testified that the camouflage cap found in

the foyer was on top of blood. Therefore, the hat fell onto the already-bloodied floor, and

then blood continued to fall on top of the hat. At the close of Dr. Cogswell‟s testimony,

the State rested its case.

Co-defendant Michael Lambdin testified that he was twenty-two years old at the

time of trial and nineteen at the time of the victim‟s death. In 2008, Lambdin graduated

from Sevier County High School and began attending Tennessee Technical Center. The

victim was also a student at Tennessee Tech, and they became friends. At that time,

Lambdin was consuming two to three pain pills per day. The victim also was consuming

pills, and Lambdin bought pills from him. The victim obtained the pills locally from

prescriptions, and he would use some and sell some. The victim was nice to Lambdin,

and Lambdin would go to the victim‟s apartment. Lambdin said that he saw the victim

with the victim‟s young son and that the victim was “a really good dad.”

Lambdin testified that he knew of Anthony White in middle school but that White

was two or three grades ahead of him. In December 2009, Lambdin and White, whom

Lambdin knew as “Fat Man,” had been friends for about one year. Lambdin would buy

marijuana from White and met Natalie Freeman and the appellant through White. White

and the appellant were best friends. Lambdin said that on December 17, he spoke with

the victim on the telephone. The victim told Lambdin that he had just filled a

prescription and that he had plenty of pills. The victim asked if Lambdin wanted pills or

knew of anyone who wanted them. Lambdin met the victim at a grocery store on

Merchants Road and bought one pill from him.

Lambdin testified that later that day, he spoke with the appellant on the telephone.

Lambdin told the appellant about the victim‟s having pills, and the appellant wanted to

know the price of the pills. Lambdin told the appellant that the pills were twenty dollars

each and that the victim would not take any less than that amount. The appellant asked

Lambdin if the appellant could “take” the victim, meaning rob him, but Lambdin told the

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appellant that he did not want the appellant to rob the victim. The appellant told

Lambdin that no one would get hurt and that he would make the robbery look like

Lambdin was not involved. The appellant said he would “just scare” the victim and take

the victim‟s pills. The appellant asked if Lambdin had a gun, and Lambdin said yes.

Lambdin testified that later that night, he met the appellant and White at the Red

Lobster on Merchants Road. The appellant and White were in White‟s “little brown

Mazda truck,” and Lambdin could smell alcohol on their breath. However, the appellant

and White did not act intoxicated. The appellant told Lambdin to give him the gun, and

Lambdin did so. The appellant never returned the gun to Lambdin. Lambdin said that

the gun had been “passed down” to him through his family and that he usually kept it in a

drawer at his grandmother‟s house. The weapon was always loaded, and he had never

fired it.

Lambdin testified that the three of them went to Freeman‟s house. Lambdin saw a

bottle of rum on a table in the living room, but he did not consume any alcohol. At some

point, Lambdin told the appellant that the victim was going to know that Lambdin was

involved in the robbery. The appellant explained the plan to rob the victim as follows:

Lambdin was to knock on the victim‟s door while the appellant hid nearby. When the

victim opened the door, the appellant was to run up to the door, pull Lambdin out of the

way, scare the victim, and take the victim‟s pills. Lambdin was supposed to run away.

Lambdin testified that Freeman and White were present while the appellant was

describing the plan. The appellant, Lambdin, and White left in White‟s truck, and White

was driving. When they arrived at the Woodgate apartments, Lambdin and the appellant

got out. Lambdin was wearing his camouflage baseball cap, and the appellant was

wearing his red, white, and blue toboggan. Lambdin knocked on the victim‟s door,

which the victim always kept locked. Lambdin had told the victim that he was coming to

buy pills, so the victim was expecting him. The victim opened the door, but the appellant

did not come running up to the door like he was supposed to. Lambdin went into the

victim‟s apartment, and the victim shut the door. Lambdin told the victim that he had left

his wallet in the truck and needed to go back to the truck to get it. The victim offered to

let Lambdin pay for the pills “next time,” which made Lambdin feel “[p]retty horrible,”

but Lambdin insisted on returning to the truck for his wallet.

Lambdin testified that he decided he “just couldn‟t do it,” that he walked out of the

victim‟s apartment, and that the victim shut the door behind him. The appellant was

hiding under the steps. As Lambdin passed the appellant, he waved for the appellant to

“come on.” The appellant went to Lambdin and asked “what the [f***] was going on.”

Lambdin told the appellant that he “couldn‟t do it anymore” and told him, “Let‟s just --

let‟s just go.” Lambdin said the appellant “got pretty mad,” called him “a [f***ing]

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[p***y],” and snatched the camouflage cap off his head. The appellant told Lambdin that

“he‟d just do it his [f***ing] self, to get back to the truck.” Lambdin said he did not try

to stop the appellant because the appellant was mad and had the gun.

Lambdin testified that he started walking back to the truck. He heard a gunshot

and began running to the truck. He said that he did not know what was going on and that

he did not want anyone to get hurt. He acknowledged seeing Barbara Eaton and said he

got into White‟s pickup. White “pulled up just a little bit, and then [the appellant] come

running and jumped in the truck.” The appellant told White, “„Go, Fat Man, go. I shot

him.‟” Lambdin said the appellant was “pretty mad” and was “punching stuff and telling

me to shut up crying.” Lambdin said he asked the appellant not to kill him.

Lambdin testified that they returned to Freeman‟s house, that Freeman and the

appellant went into the kitchen, and that the appellant told her what had happened. White

and Freeman hid White‟s truck, and Lambdin later saw on the news that the victim was

dead. Lambdin said that while he was at Freeman‟s house after the shooting, he cried and

vomited because he had not wanted anyone to get hurt. When Lambdin later spoke with

Investigator Lee, he did not tell the officer the truth. He said he thought about December

17, 2009, every night, that he “wished it wouldn‟t have happened,” and that he “[wished

he] could go and take it back and change it.”

On cross-examination by the State, Lambdin acknowledged that much of White‟s

and Freeman‟s testimony was true. However, Lambdin never showed the gun to them.

He acknowledged that he and the appellant discussed whether the victim would be easy

to rob and that he led White and the appellant to the victim‟s apartment, knowing that a

robbery was going to occur. He also acknowledged that his gun was used to beat and

shoot the victim and that he lied to Investigator Lee when he spoke with the officer on

December 19, 2009. At first, Lambdin told Investigator Lee that he, the appellant, and

White went directly to the victim‟s apartment after they left the Red Lobster. However,

he then told Investigator Lee that he remembered going to a house prior to the robbery.

Lambdin told Investigator Lee that he was just trying to help some people buy some pills,

that he knocked on the door to the victim‟s apartment, that someone knocked him down

the steps, and that he saw two people fighting. Lambdin told the officer that he ran to

White‟s truck and realized that the person who had knocked him down was one of the co-

defendants. He acknowledged telling Investigator Lee that he did not know anything

about the gun. Lambdin testified that the appellant had told him over the telephone to

bring the gun and that he did so. He said that the appellant had led him to believe that no

one would get hurt and that the appellant had “talked [him] into it.”

On cross-examination by the appellant, Lambdin acknowledged that he never told

Investigator Lee the truth about what happened on the night of the shooting and that he

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also lied to his mother and grandmother. Lambdin spoke with the victim for the first time

on December 17 at 1:50 p.m., and they continued to communicate throughout the day.

He said that he, the appellant, and White first began talking about the plan to rob the

victim while they were driving from the Red Lobster to Freeman‟s house but that they

mostly talked about the plan when they got to Freeman‟s home. He said that White and

Freeman were lying when they said they saw him with the gun and that he did not know

he was going to lose the gun when he gave it to the appellant. Lambdin denied coming

up with the plan to rob the victim or being angry with the victim. He acknowledged that

although he changed his mind about the robbery, he did not warn the victim or call help

for the victim. He stated, “I thought I‟d be able to call it off.” He denied that he was

upset about losing his gun when he got back into the truck or at Freeman‟s house. He

also denied saying, “„My grandmother‟s going to kill me.‟”

At the close of the proof, the jury convicted the appellant and Lambdin as charged

of first degree felony murder. The trial court released the jury and sentenced the

defendants to life.

II. Analysis

A. Sufficiency of the Evidence

The appellant claims that the evidence is insufficient to support the conviction. He

contends that although there is no doubt that he accompanied Lambdin to the victim‟s

apartment or that the victim was shot with Lambdin‟s gun, the State produced no direct

evidence that he pulled the trigger or even touched the gun. He also argues that his

conviction was based solely on the unreliable testimony of “co-conspirators” Lambdin,

White, and Freeman and that the only evidence showing he knew he was going to the

victim‟s apartment to rob him as opposed to just buy pills from him came from the

testimony of those co-conspirators. The State argues that the evidence is sufficient. We

agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the

standard for review by an appellate court 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); Tenn. R. App. P. 13(e). The State is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions

concerning the credibility of witnesses and the weight and value to be afforded the

evidence, as well as all factual issues raised by the evidence, are resolved by the trier of

fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or

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reevaluate the evidence, nor will this court substitute its inferences drawn from the

circumstantial evidence for those inferences drawn by the jury. Id. Because a jury

conviction removes the presumption of innocence with which a defendant is initially

cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the

burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982).

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Hall, 976 S.W.2d 121, 140

(Tenn. 1998). “The jury decides the weight to be given to circumstantial evidence, and

„[t]he inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence, are questions

primarily for the jury.‟” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting State

v. Marable, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn. 1958)). “The 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)).

First degree felony murder is defined as a “killing of another committed in the

perpetration of or attempt to perpetrate any . . . robbery[.] Tenn. Code Ann. § 39-13-

202(a)(2). In order for a killing to occur “in the perpetration of” the felony, the killing

must be “done in pursuance of the unlawful act, and not collateral to it.” Farmer v. State,

296 S.W.2d 879, 883 (Tenn. 1956). No culpable mental state is required for a felony

murder conviction except the intent to commit the underlying felony. Tenn. Code Ann. §

39-13-202(b).

Taken in the light most favorable to the State, the evidence shows that Lambdin,

White, and the appellant concocted a plan to rob the victim of pills, that they drove to the

victim‟s apartment complex, and that Lambdin and the appellant went to the victim‟s

apartment while White waited in the truck. However, the plan went awry, and the

appellant ended up shooting the victim. Regardless of whether the appellant was the

actual shooter, the jury merely had to find that the victim was killed in pursuance of the

attempted robbery in order to convict the appellant of first degree felony murder. Co-

defendants White and Lambdin testified about the appellant‟s planning and participating

in the attempted robbery, and their testimony was corroborated by other witnesses and

evidence at the crime scene. See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)

(stating that “a conviction may not be based solely upon the uncorroborated testimony of

an accomplice”). For example, White testified that Lambdin was to return to the truck

while the appellant was robbing the victim, and Lambdin testified that that he changed

his mind about robbing the victim and returned to the truck while the appellant continued

with the robbery. Barbara Eaton said she saw Lambdin run to the truck and saw the

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appellant run to the truck one and one-half minutes later. White testified that he observed

the appellant with the gun before they left Freeman‟s house, and Freeman said the

appellant claimed he and the victim struggled over the gun. The police found the

appellant‟s hat outside the apartment and Lambdin‟s gun inside the apartment. The jury,

as was its prerogative, obviously accredited the testimony of the State‟s witnesses. In

sum, the proof of the appellant‟s guilt in this case is more than sufficient to support the

conviction.

B. Severance

The appellant contends that the trial court erred by denying his motion to sever his

trial from that of Lambdin. He argues that their cases should have been severed because

both co-defendants testified against him at trial and because their testimony “was more

than merely antagonistic, it caused [him] gross prejudice and resulted in [his] being

unable to receive a fair trial.” The appellant argues that Lambdin‟s testimony was

particularly prejudicial in that Lambdin used his testimony to appear the more

sympathetic defendant. The State argues that the trial court properly refused to grant the

motion to sever. We agree with the State.

In February 2010, the grand jury jointly indicted the appellant, Lambdin, and

White for killing the victim. White began cooperating with the State, and the State

indicated that it planned to try jointly only the appellant and Lambdin. One week before

trial, the appellant filed a motion to sever his trial from that of Lambdin on the grounds

that both co-defendants were going to testify against him and that Lambdin‟s testimony

would result in “gross prejudice.” Lambdin filed a motion opposing severance, arguing

that the appellant had failed to show that a severance was necessary in order for him to

receive a fair trial.

At a hearing on the motion, counsel for the appellant argued that severance was

necessary pursuant to Rule 14(c)(2), Tennessee Rules of Criminal Procedure, because

Lambdin‟s testimony would prevent the appellant from receiving a fair trial and be

“detrimental” to the appellant‟s case. The trial court denied the appellant‟s motion to

sever. On the morning of the first day of trial, the State finally moved to sever White‟s

case from that of the appellant and Lambdin, and the trial court granted the motion.

Tennessee Rule of Criminal Procedure 14(c)(2) provides that a trial court shall

grant a severance of defendants before trial if “the court finds a severance necessary to

protect a defendant‟s right to a speedy trial or appropriate to promote a fair determination

of the guilt or innocence of one or more defendants.” Whether to grant a severance lies

within the sound discretion of the trial court. State v. Meeks, 867 S.W.2d 361, 369

(Tenn. Crim. App. 1993) (citing State v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981)).

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This court will not find an abuse of the trial court‟s discretion unless the record clearly

shows that the defendant was so prejudiced by the joint trial that the granting of a

severance became a judicial duty. State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim.

App. 1988).

We conclude that the trial court did not abuse its discretion by denying the

appellant‟s severance motion. “[T]he mere fact that damaging proof against one

defendant is presented will not, by itself, entitle another defendant to a severance.”

Meeks, 867 S.W.2d at 369. As the trial court noted in denying the appellant‟s motion,

“The defendant must go further and establish that a joint trial will result in „compelling

prejudice,‟ against which the trial court cannot protect, so that a fair trial cannot be had.”

State v. Ensley, 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996) (quoting United States v.

Horton, 705 F.2d 1414, 1417 (5th Cir. 1983). The appellant has failed to cite any specific

examples of prejudice in this case. While he contends that Lambdin‟s testimony was

particularly prejudicial in that Lambdin used it to appear as the more sympathetic

defendant, we note that the jury also convicted Lambdin of first degree felony murder.

Therefore, we conclude that the appellant is not entitled to relief.

C. Prosecutorial Misconduct

Next, the appellant contends that the State committed prosecutorial misconduct by

vouching for the credibility of White and Freeman. The State argues that the appellant is

not entitled to relief. We agree with the State.

It is well-established that closing argument is an important tool for both parties

during a trial; thus, counsel is generally given wide latitude during closing argument, and

the trial court is granted wide discretion in controlling closing arguments. See State v.

Carruthers, 35 S.W.3d 516, 577-78 (Tenn. 2000) (appendix). “Notwithstanding such,

arguments must be temperate, based upon the evidence introduced at trial, relevant to the

issues being tried, and not otherwise improper under the facts or law.” State v. Goltz,

111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). “The prosecution is not permitted to reflect

unfavorably upon defense counsel or the trial tactics employed during the course of the

trial.” State v. Garner Dwight Padgett, No. M2003-00542-CCA-R3-CD, 2004 WL

2359849, at *12 (Tenn. Crim. App. at Nashville, Oct. 21, 2004).

In Goltz, 111 S.W.3d at 6, this court outlined “five general areas of prosecutorial

misconduct” that can occur during closing argument: (1) intentionally misleading or

misstating the evidence; (2) expressing a personal belief or opinion as to the truth or

falsity of the evidence or defendant‟s guilt; (3) making statements calculated to inflame

the passions or prejudices of the jury; (4) injecting broader issues than the guilt or

innocence of the accused; and (5) intentionally referring to or arguing facts outside the

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record that are not matters of common public knowledge. “In determining whether

statements made in closing argument constitute reversible error, it is necessary to

determine whether the statements were improper and, if so, whether the impropriety

affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

In connection with this issue, we must examine the following factors:

“(1) the conduct complained of viewed in context and in light

of the facts and circumstances of the case[;]

(2) the curative measures undertaken by the court and the

prosecution[;]

(3) the intent of the prosecutor in making the statement[;]

(4) the cumulative effect of the improper conduct and any

other errors in the record[; and]

(5) the relative strength or weakness of the case.”

Id. (quoting Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)).

The appellant complains that the State committed prosecutorial misconduct when

the prosecutor stated as follows during her rebuttal closing argument:

I want to touch just very briefly on another issue that

[was] raised by [the appellant‟s counsel], and that is--and to

some degree by [Lambdin‟s counsel], regarding Anthony

White‟s testimony and the fact that he had an agreement with

the state, and I think the Court would not object to me telling

you that the state has an ethical duty here to only proffer

evidence and testimony that is credible. Okay. It‟s an ethical

duty that I take very seriously, and the state would not have

proffered Anthony White or Natalie Freeman if the state

wasn‟t sure and secure that the evidence supported and

corroborated--

At that point, counsel for the appellant objected, and the trial court overruled, stating, “I

think it is appropriate argument.” The prosecutor then continued as follows:

So when you consider what Anthony White said, I

want you to consider it in the context of other evidence,

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because, yeah, Anthony did have problems. He was

obviously using drugs. He had some mental health issues.

There are, you know, a number of things that were wrong

with that young man, but the fact is that everything that he

told you is supported by other evidence and other proof in this

case, and it strikes me as odd that both of these lawyers are

telling you to disregard what Natalie Freeman and Anthony

said that hurts their case, but, hey, when it helps them, you

know, you‟re entitled to believe that.

At the conclusion of the prosecutor‟s argument, the jury retired from the

courtroom, and defense counsel clarified his objection, stating that when the prosecutor

commented on her “ethical duty,” it vouched for the credibility of the State‟s witnesses

and implicated that defense counsel had a different ethical duty “and that the testimony

that we presented or otherwise elicited is somehow false.” The prosecutor responded that

she referred to her ethical duty because “I have been accused of suborning perjury and by

cutting deals . . . . [B]ut what I said was in the context of having the jury understand and

consider the evidence, the testimony of those two witnesses as it related to the other proof

and the evidence that corroborated what they said[.]” The trial court stated that “I do

believe if you had brought that up without being in the context of rebuttal that there

would have been concern with it, but I think it was appropriate rebuttal argument, and I,

again, for the record, deny your objection.” The trial court stated that it was not going to

give the jury a curative instruction.

While the prosecutor made her comments in response to argument by defense

counsel, we agree with the appellant that her referring to her “ethical duty here to only

proffer evidence and testimony that is credible” was an attempt to vouch for White‟s and

Freeman‟s credibility. However, the prosecutor‟s improper argument was brief and

tempered somewhat by her immediately stating that the evidence corroborated White‟s

and Freeman‟s testimony. Moreover, the State‟s proof against the appellant was strong.

Therefore, we conclude that he is not entitled to relief. See Tenn. R. App. P. 36(b).

III. Conclusion

Based upon the oral arguments, the record, and the parties‟ briefs, we affirm the

judgment of the trial court.

_________________________________

NORMA MCGEE OGLE, JUDGE

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