State of Tennessee v. Darrell Braddock

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

MARCH SESSION , 1998 FILED May 5, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707-CR-00279 ) Cecil Crowson, Jr.

Appellee, ) Appellate C ourt Clerk )

) SHELBY COUNTY

VS. )

) HON. CAROLYN WADE BLACKETT DARRELL BRADDOCK, ) JUDGE )

Appe llant. ) (Direct Appeal - First Degree Felony ) Murder)

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES BALL JOHN KNOX WALKUP 217 Exchange Attorney General and Reporter Memphis, TN 38105 MARVIN E. CLEMENTS, JR.

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0493

WILLIAM L. GIBBONS

District Attorney General

PAUL GOODMAN

JANET SHIPMAN

Assistant District Attorn eys 201 Poplar Avenue

Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

On Septem ber 12, 1 996, a S helby C ounty jury fo und Ap pellant, Darre ll E.

Braddock, guilty of first degree felony m urder , crimin al attem pt: to wit e spec ially aggravated robbery, criminal a ttempt: to wit murder in the first degree, and two counts of aggravated assault. Appellant appeals from his convictions, raising two issues:

1) whether the evidence pre sented at trial was leg ally sufficient to support the jury’s verdict; and 2) wheth er the tr ial cou rt erred in allowing the State, beca use o f the victim ’s family’s feelings, to withdraw its offer of a plea bargain.

After a review of the record, the judgment of the trial court is affirmed.

FACTS

On January 12, 1994, at approximately 7:12 am, three armed masked men entered Dan’s Big Star Grocery Store at 3237 Winchester, Memphis, Tennessee. At the time the men entered, Robby Allen, Jr., Felicia Bailey, Janice Cox, A ngela Adams, Malcolm Clark, and Johnny Russell, along with other employees of the store, were inside the store. When Robby Allen, who was working in the store’s office, saw a b lack ma le run acro ss the sto re with a gu n drawn , he reached for his own gun. Before Mr. Allen could draw his gun, Michael Irvin jumped over the partition between the office and the rest of the store and landed on Mr. Alle n’s shoulder. Irvin was armed. Mr. A llen and Mr. Irvin struggle d for control of Mr. Irvin’s weapon, in the p rocess the w eapon fired into the air.

3

W hile Mr. Alle n and Mr. Irvin struggled, Appellant had run to cash register number two where Felicia Bailey, a store employee, was standing. Appellant pointed his gun at Ms. Bailey an d ordere d her to get down on the floor. Ms. Bailey complied. Appellant then turned and pointed the gun at Malcolm Clark, who also got down on the floor. Mr. Clark identified exhibit 15, a .380 caliber automati c pistol taken from Appellant’s aunt’s home, as a weapon resembling the gun which Appe llant pointe d in his face .

During the commotion, several shots were fired. One shot came from the store floor. Another cam e from the gu n over which M r. Allen and Mr. Irvine wrestled. In the strug gle over th e gun, M r. Irvin fell and Mr. Allen fell on top of him. Mr. Allen reached for a pair of handcuffs that were in the office. As he was doing so, a gun was extended over the wall into the office and fired into the back of Mr. Allen’s neck, causing him to lose consciousness.

Once the commotion ceased, Ms. Cox jumped over the back wall of the office and ran to a phone located in the rear of the store and called 911. Ms. Adams also called 911 and pulled the store’s alarm.

Mr. Clark crawled along the floor toward the office. He sa w Joh nny R usse ll lying on the floor with a large amount of blood on the floor aroun d him. Mr. Clark retrieved Mr. Russell’s .357 Smith and Wesson pistol from the floor in front of Mr. Russ ell’s body. Mr. Clark then climbed over the wall into the office and handcuffed Mr. Irvin and also confiscated Mr. Irvin’s weapon, a .25 caliber autom atic pistol. Mr. Clark picked up Mr. Alle n’s .380 caliber Bro wning pistol. Mr.

4

Allen recovered consciousness and gave the store keys to Mr. Clark, who locked the doors to the store.

Mr. Russell died as a result of a gunshot wound to his back. No bullet or bullet fragments were found in his body. Mr. Allen was hospitalized for ten days, recovering from the wound to his neck. A bullet was removed from his body. Mr. Irvin died as a result of gu nshot wou nds from a .38 or a .357 ca liber revolver.

Appellant made a statement to Sergeant Tim othy C ook, o f the Me mph is Police Depa rtment, w hich wa s introduc ed at trial. In the statement, Appellant confessed to being involved in the attempted robbery of Da n’s Big Star G rocery. Appellant said he used a black .380 pistol (introduced at trial as exhibit 15) which belonged to his aun t. Appellan t also state d that Ca rlos Rice was the third perpetrator in the robbery, and that he used a long-barreled revolver. Appellant stated that he took th e revo lver from Mr. Ric e and threw it into a field. A Colt .38 revolver was loca ted by the police in the field indicate d by Ap pellant and was introduced at trial as exhibit 23. Ap pellan t further stated that Mr . Rice to ld him that Mr. Rice had shot the s tore m anag er in the back (referrin g to Mr . Russ ell) because otherwise the manager would have shot him.

At trial Mr. Rice testified that he ha d plead guilty to murder in the perpetration of a robbery and related charges arising out of the attempted robbery of Dan’s Big Star. H e ackn owledg ed that he is currently s erving a life sentence for those c rimes, b ut stated th at he is atte mpting to obtain p ost- conviction relief from his plea. Mr. Rice testified that he did not have a gun during the attempted robbery, and denied that he shot Mr. Russell. He said that he

5

recognized the .380 automatic (exhibit 15) as Appellant’s aunt’s gun, but said that Appellant used the .38 revolver (exhibit 23) during the robbery. He further testified that Michael Irvin planned the robbery. He stated that the plan consisted of M r. Irvin taking ca re of the pe ople in the office, he w as to be p ositioned at register one and App ellant was to take re gister two. Mr. Rice testified that he did not shoot Mr. Allen a nd did not see Appellant sho ot him either.

The State also presented evidence at trial that Appellant’s palm print was on the car used to con vey the perpetra tors to and from Dan’s Big S tar. A Mr. Steve Scott of the Tennessee Bureau of Investigation testified that he tested the Colt. 38, the .25 caliber, the Browning .380 automatic, and the Smith and Wesson .357 Magnum, and of those guns , the bullet which wa s taken from Mr. Allen’s body could only have come from the .38 revolve r. He wa s unab le to state conc lusively that the bullet did co me from that gun, b ut ruled ou t the poss ibility that it came from one of the other guns found at the scene.

I. SUFFICIENCY OF THE EVIDENCE Appellant conte nds th at the e videnc e pres ented at trial wa s not le gally sufficient to support the conviction of criminal attempt: to wit murder in the first degree. When an appellant challenges the sufficiency of the evidence, this Co urt is obliged to review that ch alleng e acc ording to certa in well-settled principles . A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State’s witnesses and re solves all conf licts in the testim ony in favor of the State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a

6

presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W .2d 913, 914 (Tenn. 198 2). Hence, on appeal, the burden of proof rests with Appellant to demonstrate the insufficiency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that m ay be drawn therefrom.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (T enn. 1 978)) . W here th e suffic iency o f the evid ence is contested on appe al, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v. Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our evalua tion of th e con victing e videnc e, this C ourt is precluded from reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996 ); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences “for those drawn by the tr ier of fact from circum stantial evidence.” Id. at 779. Finally, the Tennessee Rules of App ellate P roced ure, R ule 13(e) provides, “findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact beyond a reasonab le doubt.” See also State v. Mathews, 805 S.W.2d at 780.

At trial, the State presented the tes timon y of Ca rlos R ice, Ap pellan t’s cous in and partner in this crime. Mr. Rice testified that he did not carry a gun on the day of the attempted robbery, and that he did not shoot anyone. He also stated that Appellant us ed a .38 caliber re volver during the rob bery. Expert

7

ballistics testim ony revealed that a .38 ca liber bullet was recove red from M r. Allen’s body.

The offense of first-degree murder, at the time of this crime, required a showing of an inte ntiona l, premeditated and deliberate killing. Tenn. Code Ann. § 39-13-202 (1991). A premeditated act is “one done after the exercise of reflection and judgm ent.” Tenn. C ode Ann . § 39-13-201 (b)(2) (1991). Premeditation can be formed in an insta nt. State v. Brown, 836 S.W .2d 539 (Tenn. 1992). A deliberate act is “one performed with a cool purpose.” Tenn. Code Ann. § 39-13-201(b)(1)(1991). Deliberation is present when the circumstances suggest that the actor contemplated the manner and consequences of his actions. State v. West, 844 S.W.2d 144, 147 (Ten n. 1992). On appe llate review, questions of fact, contradictions in testimony, and the credibility of witness es are left for the jury to resolve. Byrge v. S tate, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). There is ample evidence to support the conclu sion that appellant shot Mr. Allen as Allen got the better of one of Appe llant’s compa triots during the robbery. Clearly, such a shooting was deliberate and pre medita ted. This issue is with out me rit.

II. STATE ’S REF USAL TO O FFER PLEA B ARGAIN Appellant also complains that the family of Johnny Russell blocked an offer which the State had previously extended to Appellant regarding a plea agreement. It is well-settled that even in the presence of an agreement, an Appellant does not have an absolute right to have a plea bargain accepted. Santo bello v. New York , 404 U.S. 257, 92 S.Ct. 495, 498, 30 L.Ed .2d 427 (197 1).

8

There is also no obligation on the State to offer any benefit or advantage to a defendant by reason of his pleading guilty, and aside from any agreement that may exist between a defendant and the State in reference to the entry of the guilty plea, the u ltimate de cision to accept or reject any such plea is to be made by the trial court. William s v. State, 491 S.W.2d 862, 867 (Tenn. Crim. App. 1972). It is also well-settled th at any p lea ba rgain o ffer from the Sta te is revoc able until it is accep ted by the trial court. See Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 2548, 81 L.Ed.2d 437 (1984). The ultimate decision whether to accep t or reject a p articular ple a barga in agree ment re sts entirely with the trial court. A prereq uisite to the e ffectivenes s and e nforcea bility of a plea agreement is its approva l by the cou rt. State v. Todd, 654 S.W .2d 379, 382 (Tenn.19 83). In the matte r sub ju dice, it a ppea rs that th e State and A ppella nt had enga ged in plea negotiations, but had not formally entered a plea. Until such time as the trial court acce pts the plea a greem ent, the State is free to rescind any offer it makes.

While withdrawing a plea bargain offer prior to its acceptance by the trial court may be unacceptable if the withdrawal is premised on som e invidio us ba sis such as race, gen der or religion, victim impact is not a prohibited basis for withdraw ing an un approve d plea ba rgain offer. T his issue is without m erit.

According ly, for the aforemen tioned reason s, the judgme nt of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

9

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

GARY R. WADE, JUDGE