Preview:

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
April 18, 2012 Session STATE OF TENNESSEE v. ROBERT NELSON BUFORD, III
Direct Appeal from the Criminal Court for Davidson County No. 2008-B-1355 J. Randall Wyatt, Judge

No. M2011-00323-CCA-R3-CD - Filed January 31, 2013

A Davidson County Criminal Court Jury convicted the appellant, Robert Nelson Buford, III, of facilitation of first degree felony murder and facilitation of attempted especially aggravated robbery. After a sentencing hearing, the appellant received an effective thirtyfive-year sentence. On appeal, he contends that (1) the evidence is insufficient to support the convictions; (2) the trial court should have suppressed his statement to police because he invoked his right to remain silent; (3) his prior bad acts were inadmissible; (4) the trial court should have given the jury a requested instruction; and (5) his effective sentence is excessive. Based upon the oral arguments, the record, and the parties' briefs, we conclude that the trial court erred by admitting the appellant's statement into evidence because the appellant invoked his right to remain silent but that the error was harmless. Therefore, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed. N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which A LAN E. G LENN and R OGER A. P AGE, JJ., joined. Patrick G. Frogge, Nashville, Tennessee, for the appellant, Robert Nelson Buford, III. Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Factual Background

In April 2008, the Davidson County Grand Jury indicted the then thirty-eight-year-old appellant; his brother, Kevin L. Buford; his nephews, Kevin D. Buford and Deangelo Monquez Buford, who were sixteen and seventeen years old, respectively; and Raymond Javoss Pirtle, also seventeen years old, for the first degree felony murder and attempted especially aggravated robbery of Billy Jack Shane Tuders. The appellant was tried separately from his co-defendants.1 At trial, Janice Tuders, the victim's mother, testified that the victim was thirty-three years old when he died. On January 21, 2008, the victim worked at the Texaco Xpress Lube on Clarksville Pike. He got off work about 5:15 p.m., received seventy dollars in cash from his employer for his day of work, and walked to the convenience store next door to buy a pack of cigarettes and a lottery ticket. The victim carried a wallet with him sometimes, but Ms. Tuders did not know if he had his wallet on January 21. Officer Eric Richardson of the Metropolitan Nashville Police Department (MNPD) testified that on January 21, 2008, he was dispatched to an area near the Texaco Xpress Lube and arrived at 6:13 p.m. Other officers were present and tending to the victim. Officer Richardson found a spent shell casing, which had been ejected from a semi-automatic weapon, on the ground. Detective Norris Tarkington of the MNPD testified that he arrived at the crime scene thirty to forty minutes after the initial call. Standing on Clarksville Pike and looking at the Texaco Xpress Lube, a car wash was to the right of the Xpress Lube, and the Bordeaux Phillips 66 convenience store was to the right of the car wash. Hunter's grocery store was across the street from the three businesses. Detective Tarkington found a spent nine millimeter shell casing in front of the car wash's office and a twenty-dollar bill and a lottery ticket close to the car wash's office door. A blood trail led from the car wash to the back of the Xpress Lube, where the victim was found, and a pool of blood and a knit cap were on the ground near the victim. From the evidence, Detective Tarkington determined that the victim was standing close to the office door of the car wash when he was shot. The victim ran through one of the car wash bays and behind the Xpress Lube, where he collapsed in the parking lot.

At the time of the appellant's trial, Kevin L. Buford had been convicted of facilitation of first degree felony murder and attempted especially aggravated robbery, and Kevin D. Buford had been convicted of first degree felony murder and attempted especially aggravated robbery. See State v. Kevin L. Buford, Sr.,No. M2010-01618-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 342, at *1 (Nashville, May 24, 2011); State v. Kevin D. Buford, No. M2010-02160-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 958, at *1 (Nashville, Dec. 28, 2011).

1

-2-

On cross-examination, Detective Tarkington acknowledged that Clarksville Pike was a busy street and said that the victim was shot about the time "rush hour" ended. The grocery store across from the car wash had outside lights, but the lights were not bright. The Phillips 66 convenience store to the right of the car wash was known as a busy store and was well-lit. Donna Jones testified that on January 21, 2008, she and her teenage son went to Hunter's grocery store on Clarksville Pike. As they were leaving, Jones heard gunshots across the street. She looked at the car wash and saw three African-American men running and laughing. The men ran from the car wash and got into the passenger side of a sportutility-type vehicle (SUV). Jones said that she did not see their faces but that "two were probably younger men, but one was an older man." When Jones and her son got into their vehicle and pulled onto Clarskville Pike, the SUV was in front of them. Jones drove home and telephoned the police. She and her son gave statements to the police, and her son may have given the police a partial license plate number. The police showed her photograph arrays, but she could not identify anyone. On cross-examination, Jones acknowledged that she had testified in previous trials and hearings related to the victim's death. She also acknowledged that she previously testified that she could not remember if she saw two or three men. However, she stated, "I think it was three." Detective Harold Haney of the MNPD testified that shortly after the shooting, he learned about surveillance video showing the shooting. He obtained the video, and the State played it for the jury. The video camera, mounted at the Phillips 66 convenience store and turned toward the self-service car wash, shows some of the car wash bays. A person walks through one of the bays, toward the surveillance camera, and out of view on the bottom left of the screen. About one and one-half minutes later, two individuals walk through the adjacent, lighted car wash bay. They walk toward the surveillance camera, in the direction of the first person, and out of view on the bottom left side of the screen. Shortly thereafter, a fourth person walks through the same lighted bay and out of view but on the bottom right side of the screen. Less than one minute later, the victim appears on the bottom left of the screen, walking away from the Phillips 66 convenience store and toward the car wash bays. Someone approaches him from behind and hits him on the head. As the victim runs toward the car wash bays, the shooter points the gun at him. A flash of light appears as the shooter fires the gun at the victim. The victim runs through the lighted car wash bay and out of view at the top of the screen. The shooter and another person, who are the same two individuals seen walking together earlier in the video, run through the adjacent bay and out of view. Jenness Schuhmann testified that in January 2008, she worked as a crime scene technician for the MNPD. On January 21, 2008, she went to the scene of the shooting and -3-

collected a knit cap, a twenty-dollar bill, a Lotto ticket, and a nine millimeter shell casing. She also took photographs of the scene. Lieutenant Frank Ragains of the MNPD testified that he lifted fingerprints off the suspects' SUV. Lorita Marsh of the MNPD testified as an expert in latent print examination that she examined the lifted prints and compared them to the five defendants' fingerprints. Marsh concluded that Kevin L. Buford's fingerprints were on the Explorer's driver-side and passenger-side front doors. Raymond Pirtle's fingerprints were on the driver-side and passenger-side rear doors. The appellant's fingerprints were on the passenger-side front and rear doors. On cross-examination, Marsh testified that she could not determine the ages of fingerprints. Twenty-year-old Raymond Pirtle testified that he was friends with Kevin D. and Deangelo Buford, the sons of Kevin L. Buford, and had gone to school with them since the eighth grade. Pirtle said he carried a gun for protection. About two weeks before the crimes, Kevin D.2 asked Pirtle for the gun, and Pirtle gave it to him. Pirtle said that about noon on January 21, 2008, Kevin D. came to Pirtle's home and asked if Pirtle "[wanted] to ride" with him and "do a robbery." Pirtle told him yes and got into a four-door Ford Explorer with him. Kevin L. was driving the SUV, and Deangelo was sitting in the front passenger seat. Kevin D. sat behind Kevin L., and Pirtle sat behind Deangelo. Kevin L. drove to the Burger King on Gallatin Road and told the three juveniles about a car dealership they could rob. Deangelo had Pirtle's gun, and the three juveniles walked to the car lot. However, they were scared and returned to the SUV. Kevin L. was disappointed that they had not committed the robbery and tried to get them to return to the car lot, but they refused. Kevin L. drove to an Auto Zone and went inside to see if surveillance cameras were in the store, but he returned to the Explorer and drove away from the store without telling the juveniles anything. Pirtle testified that Kevin L. claimed he did not have enough money to buy gasoline and drive them home. Pirtle was friends with someone named "Little E," so Kevin L. drove to Little E's house. Little E walked outside to the Explorer, and Pirtle bought some marijuana from him. Kevin L., Kevin D., Deangelo, and Pirtle smoked the marijuana in the Explorer. Then Kevin L. drove downtown and picked up the appellant. Pirtle had never met or seen the appellant before that day, and the appellant sat in the backseat of the Explorer, between Kevin D. and Pirtle. Kevin L. drove to a liquor store on Jefferson Street and told everyone in the Explorer, "`I'm fixin to go in here and I am fixin to buy some liquor and I am going to tell y'all who is cashing their check and then when they come out that is when y'all rob them.'" Kevin L. went into the liquor store, bought some vodka, and returned to
2

Because three of the defendants share a surname, we will refer to them as "Kevin L.," "Kevin D.," and Deangelo for clarity.

-4-

the Explorer. He told them to rob an African-American man, but they did not want to rob the man because too many people were outside the store. Kevin L. came up with a plan for the appellant to rob Little E. He drove to the Buena Vista Market and told the juveniles to telephone Little E and have Little E meet them there. The appellant got Pirtle's gun from Deangelo, got out of the Explorer, and waited for Little E to arrive. When Little E arrived at the market and approached the Explorer, the appellant pretended not to know anyone in the Explorer, walked up to Little E, pointed the gun at him, and demanded money. Little E threw his money onto the ground. Pirtle did not know whether the appellant picked up the money. However, after the robbery, he saw the appellant run through a field. A short time later, Kevin L. picked up the appellant. The appellant still had Pirtle's gun. Pirtle testified that Kevin L. told everyone in the Explorer, "`Y'all got 15 minutes to do a robbery, because I have got to pick up my wife from work.'" He pulled into one of the bays at the Xpress car wash on Clarksville Pike and saw the victim, who had walked through the car wash. Pirtle said that the victim was counting money and that Kevin L. told them, "`That is who y'all need to rob. He got some money right there.'" The appellant and Kevin D. got out of the Explorer, and Kevin L. drove to the grocery store across the street from the car wash. Pirtle got out of the Explorer and walked toward the car wash to help Kevin D. and the appellant. The victim came out of the Phillips 66 convenience store. Pirtle said that he saw Kevin D. hit the victim with the gun, that the victim turned around and hit Kevin D., and that Kevin D. shot the victim. Pirtle, Kevin D., and the appellant ran through the car wash bays and got back into the Explorer. Their seating arrangement was the same as before except that Pirtle was sitting in the middle of the backseat and the appellant was sitting directly behind Deangelo. Pirtle testified that Kevin L. drove his two sons home and that they kept Pirtle's gun. Then Kevin L. drove Pirtle home. The next morning, the police arrived at Pirtle's house and arrested him. The police searched the house for the gun but did not find it. Pirtle acknowledged that he had testified in two previous trials related to this case, that he pled guilty to facilitation of second degree murder, and that he received a fifteen-year sentence to be served at thirty percent. He said that prior to the shooting on July 21, 2008, he had been arrested as a juvenile for evading arrest, bringing a weapon onto school property with intent to go armed, and disorderly conduct. He said that he was affiliated with the Gangster Disciples but that he had never committed a crime for the gang. On cross-examination, Pirtle acknowledged that although Kevin L. claimed he did not have any money, Kevin L. bought vodka from the liquor store. Pirtle acknowledged that Kevin L. drove to the liquor store because he thought Mexicans cashed their checks there. Pirtle acknowledged testifying at Kevin L.'s trial that Kevin L. told them to rob a woman at the liquor store, not an African-American man. Pirtle spoke with the police on January 22, -5-

2008, but did not tell them his complete story until January 2010, almost two years after the shooting. He acknowledged that he lied to the police when he spoke with them on January 22 but said he did not remember telling them that he pulled the gun out of his pants at the car wash and gave it to Kevin D. He also acknowledged that he talked to a court-appointed mental health evaluator and that he lied to the evaluator. He said he did not remember telling the evaluator that he blacked out and had no memory of the crimes. Pirtle acknowledged that Kevin D. used Pirtle's gun to shoot the victim. However, he said, "I had something to do with [the shooting], but I didn't get the chance to help because by the time I got over there everything was already happening." He acknowledged that Kevin D. and Deangelo also were members of the Gangster Disciples. The defense played Pirtle's January 22, 2008, video-recorded interview for the jury. During the interview, Pirtle told the officers the following: The four Bufords picked him up about 2:00 p.m. on January 21, 2008, and they rode around for hours. They stopped at the grocery store across the street from the car wash on Clarksville Pike. Kevin D. and a "lightskinned dude" saw the victim, got out of the Explorer, and walked to the car wash. Pirtle also got out of the Explorer and walked across the street to the car wash. The victim walked through one of the car wash bays and went into the Phillips 66 convenience store. The appellant and Kevin D. waited in a "dark spot" outside. When the victim came out of the store, Kevin D. and the light-skinned man "got him." Kevin D. hit the victim on the head with the gun, wrestled with the victim, and shot him. Pirtle did not hear Kevin D. tell the victim, "Give me your wallet." Pirtle said that he was "right there with them" and that Kevin L. was waiting in the Explorer, which was still in the grocery store parking lot across the street. After the shooting, Pirtle, Kevin D., and the light-skinned man ran across the street to the Explorer. Pirtle did not know the light-skinned man's name and had never seen him before. Initially, Pirtle claimed that Kevin D. and Deangelo owned the gun. However, he later admitted that the gun was his and that he bought it "off the streets." He said that the gun was a "nine" and that he thought it was a Smith and Wesson. He explained that about three weeks before the shooting, he gave the gun to Kevin D. When Kevin D. and Deangelo picked him up on the afternoon of January 21, 2008, they returned the gun to him. However, before the shooting, Pirtle pulled the gun out of his pants and gave it back to them so they could "go hit the lick." He said that Kevin L. knew they were going to rob the victim but that Kevin L. did not know Kevin D. was going to shoot the victim. Pirtle told the officers that "we was all in it together" but that Kevin D. "took it too far." After the shooting, everyone was "talking bad" to Kevin D. for his having shot the victim. At the conclusion of the interview, the police officers told Pirtle that they had talked with Kevin D., that Kevin D. admitted shooting the victim, and that Kevin D. claimed he gave the gun to Pirtle after the shooting. Pirtle denied knowing the location of the gun. He said that Kevin D. and Deangelo had the gun when Kevin L. dropped them off at home.

-6-

On redirect examination, Pirtle acknowledged that much of what he told the officers during the January 22 interview was consistent with his testimony at the appellant's trial and with testimony he gave at previous trials. He said the light-skinned man was the appellant. Sergeant Chris Steele of the MNPD testified that on January 21, 2008, he arrived at the crime scene about twenty minutes after the initial call. Shortly after his arrival, he learned about a video of the shooting and obtained it from a nearby business. He also spoke with Donna Jones, who described the suspect vehicle and gave him a license tag number. About thirty minutes later, officers located the vehicle, which was owned by Kevin L. and his wife, at a residence. Officers began watching the residence. When two vehicles left the home, officers followed them to the McDonald's on Gallatin Road. Kevin L., who was in one of the vehicles, agreed to go with the police to the police department. Sergeant Steele interviewed Kevin L. He also interviewed Kevin D., Deangelo, and Raymond Pirtle. Sergeant Steele interviewed Pirtle again on January 29, 2009, and showed Pirtle a photograph array. Pirtle selected the appellant's photograph and identified him as the light-skinned man present at the time of the shooting. The grand jury indicted the appellant, the police arrested him, and Sergeant Steele interviewed him on February 2, 2009. The State played the appellant's video-recorded interview for the jury. During the interview, the appellant said he did not understand why he was being charged with murder when he did not shoot the victim. He claimed that his brother, nephews, and Raymond Pirtle picked him up from "the mission" on January 21 and that they rode around in the Explorer. The appellant wanted Kevin L. to drop him off at the Phillips 66 convenience store. Kevin D. told everyone in the Explorer that he needed some money and that he was going to rob someone, but the appellant and Kevin L. told him not to commit a robbery. Kevin L. parked across the street from the car wash on Clarkville Pike, and the appellant and Kevin D. walked through the car wash bays to the Phillips 66 convenience store. Pirtle was behind them. The victim came out of the convenience store as the appellant was about to go inside. The victim walked by the appellant, the appellant heard a gunshot, and Kevin D. and Pirtle ran across the street to the Explorer. The appellant also ran to the Explorer because he was scared and "didn't want to get left." After the incident, Kevin L. dropped off the appellant at "the mission." The appellant said that he did not encourage Kevin D. to rob the victim, that he did not know Kevin D. was going to rob the victim, and that he tried to stop Kevin D. when he saw what was happening. On cross-examination, Sergeant Steele acknowledged that he showed "photographic line-ups" containing the appellant's photograph to Donna Jones and her son. Ms. Jones did not identify anyone, but her son identified Kevin D. and Raymond Pirtle. Sergeant Steele showed the Joneses arrays containing the appellant's photograph, but they did not identify him. Sergeant Steele said he used "trickery" during the appellant's interview in order to get -7-

the appellant to talk with him. On redirect examination, Sergeant Steele acknowledged that both of the Joneses said they saw three people run away from the shooting. Dr. Sandra Thomas, an assistant medical examiner for Davidson County, testified as an expert in forensic pathology that she did not perform the victim's autopsy but that she reviewed his autopsy report and concurred with its results. His cause of death was a gunshot wound to the torso, and his manner of death was homicide. The bullet entered the victim's back on the left side; struck his heart, spleen, and a couple of other muscular structures; and exited his left chest. The bullet traveled back to front, left to right, and slightly downward. The victim would have lived for a few minutes after receiving the wound. The victim had two twenty-dollar bills, a tube of Chapstick, a pack of cigarettes, two lighters, and a pocketknife on his person. On cross-examination, Dr. Thomas testified that the victim would have been able to run after the shooting. The jury convicted the appellant of facilitation of first degree felony murder, a Class A felony, as a lesser-included offense of first degree felony murder and facilitation of attempted especially aggravated robbery, a Class C felony, as a lesser-included offense of especially aggravated robbery. After a sentencing hearing, the appellant received an effective thirty-five-year sentence. II. Analysis A. Sufficiency of the Evidence The appellant contends that the evidence is insufficient to support the convictions because the evidence merely places him at the crime scene and because Raymond Pirtle's testimony was not sufficiently corroborated. 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); see also 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 reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial evidence for those inferences drawn -8-

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, 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)). The appellant was convicted of facilitation of first degree felony murder and facilitation of attempted especially aggravated robbery. As charged in this case, first degree felony murder is the "killing of another committed in the perpetration of or attempt to perpetrate any . . . robbery." Tenn. Code Ann.

Download bufordrobert.pdf

Tennessee Law