IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 17, 2014 Session STATE OF TENNESSEE v DEVONTA AMAR CUNNINGHAM Direct Appeal from the Criminal Court for Davidson County No. 2008-B-2006 Monte Watkins, Judge No. M2012-02203-CCA-R3-CD - Filed January 14, 2015 A Davidson County Criminal Court Jury convicted the appellant, Devonta Amar Cunningham, of first degree felony murder and especially aggravated robbery, a Class A felony. After a sentencing hearing, the appellant received an effective life sentence. Subsequently, he filed a petition for a writ of error coram nobis. On the same day, he filed a motion for new trial and for judgment of acquittal. The petition and the motion were denied by the trial court. On appeal, the appellant contends that the evidence is insufficient to support his murder conviction and that the trial court erred by refusing to compel a witness to testify after the witness asserted his Fifth Amendment right against self-incrimination; by refusing to admit a co-defendant’s prior statement as substantive evidence; by limiting his cross-examination of a State’s witness; by allowing evidence to be admitted in violation of the rules of discovery; and by denying his petition for a writ of error coram nobis. Upon review, we affirm the judgments of the trial court. Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed. NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROGER A. PAGE, J., and J. ROBERT CARTER, JR., SP. J., joined. Manuel B. Russ, Nashville, Tennessee, for the appellant, Devonta Amar Cunningham. Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Deborah Housel and Leticia Alexander, Assistant District Attorneys General, for the appellee, State of Tennessee. OPINION I. Factual Background In June 2008, the Davidson County Grand Jury indicted the appellant, and his co- defendants Ashton Gains, Mychal Hendricks, Lance Featherston, William Davis, and Deandra Smith on charges of first degree felony murder and especially aggravated robbery. The charges resulted from the robbery and shooting of Corey Wayne Sanders on September 30, 2007. The appellant was tried separately from his co-defendants. At trial, Lisa Lynn White testified that in September 2007, she lived at 2912 Highland Drive with her four children, including the twenty-one-year-old victim, and the victim’s fiancé, Jessica Haines. On the night of the victim’s death, White was taking care of her grandmother “three doors up.” She said that she went to bed about 12:30 or 1:00 a.m., that she “received a call,” and that her grandmother woke her “with a scream that Corey had been hurt really bad and I needed to get down there.” White ran down the street to her home and saw Haines holding the victim, who was lying behind the fence around White’s yard, a few feet from the street. Haines told White that the victim had been shot. White walked closer to the victim and saw that his skin was gray and that he had been shot in the torso. White’s fiancé, John Beasley, called 911 and rubbed the victim’s legs in an attempt to maintain circulation. White put a towel over the victim, and several neighbors came outside, one of whom performed cardiopulmonary resuscitation (CPR). Shortly thereafter, an ambulance arrived and transported the victim to the hospital. The victim died shortly after arrival. White testified that earlier that day or the day before, the victim had been in a wreck while riding motorcycles with Beasley. Afterward, the victim sold the wrecked motorcycle for $3,200. He planned to save the money to buy another motorcycle. Jessica Haines, the victim’s fiancé, testified that she met the appellant, whom she called “Papa,” through the victim. On September 28, 2007, Haines and the victim were in White’s backyard when the appellant and another man drove up. The two men walked into the backyard and asked to see a new litter of puppies owned by the victim. While the men were there, the victim’s cousin, Casey, came over and asked to buy the victim’s wrecked motorcycle. The victim agreed, and Casey paid him with ten one-hundred-dollar bills. Casey asked the victim for riding gear, and the victim sold it to him for $500. The appellant was in the backyard with the victim and Casey when the transactions took place. Haines testified that in the early morning hours of September 30, the victim’s telephone rang, and he asked her to answer it. A man, who identified himself as “Papa’s friend,” said, “I need three of them.” Haines did not know what the man meant and told him that the victim was asleep. Less than one minute later, the victim’s telephone rang again. Haines answered it and recognized the appellant’s voice. He told her, “Hey, man, them are my boys. Where is Corey at?” The victim took the telephone, and Haines heard him say, -2- “I’ll be outside in just a few minutes. Y’all can come on.” Haines testified that the victim put on blue jean shorts over a pair of gym shorts and went outside. A few seconds later, Haines heard five gunshots and ran to the window. She saw an African-American man run out of the yard and toward a dark-colored car, possibly a two-door Ford Thunderbird, that was parked in front of White’s mailbox. The car appeared to be the same car that was there when the appellant came to look at the puppies. Haines saw two men outside of the car. One, a tall, thin, African-American man, was standing by the driver’s side and got into the driver’s seat. The second man, who was African-American and bald, ran out of the yard and got into the front passenger seat. A third man, who was African-American with dreadlocks, was in the back seat. Haines testified that the car drove away at a high rate of speed and that she went outside. She could not see the victim, so she screamed his name. She heard him moan and turned to see him lying face-down in the yard. She saw blood on his shirt, and his face was pale. A next-door neighbor came outside to help, and Haines left the victim to telephone White. As Haines attempted to perform CPR, White arrived. A police car and an ambulance arrived a few minutes later. Haines said that a few hours after the shooting, the police showed her a photograph array from which she identified the appellant as “Papa.” Haines testified that when the victim went outside, his cellular telephone and the money from the sale of the motorcycle were in his pocket. After the shooting, nothing was in his pockets. The State showed Haines a Cricket-brand cellular telephone, and she identified it as the victim’s telephone. She said that she was with the victim when he purchased the phone two months before his death and that he kept the box in which the phone was packaged. On cross-examination, Haines testified that she may have told the police that the appellant sometimes bought marijuana from the victim three or four times a week. However, she did not recall saying it. Nevertheless, she acknowledged that the victim sold marijuana and that his customers typically paid with cash. She further acknowledged that it was not unusual for the victim to carry large sums of cash. Haines said that the victim allowed the men who ultimately shot him to come over after the appellant vouched for them. She did not see the appellant at the house that night. Haines knew the victim sometimes carried a gun, but she did not know of any “bad blood” between the victim and the appellant. Metro Nashville Police (Metro) Detective Jack Stanley testified that in the early morning hours of September 30, 2007, he was dispatched to 2912 Highland Drive to investigate a shooting and was the first officer to arrive. Several family members and neighbors were in the yard, and two of them were performing CPR on the victim. Other -3- officers and an ambulance arrived within a couple of minutes. The ambulance transported the victim to the hospital. Detective Stanley testified that he roped off the area with crime scene tape. He spoke with two or three neighbors, who told him that they heard four or five gunshots before seeing a blue or black Thunderbird speed away. Detective Stanley broadcast a description of the car and instructed his fellow officers to be on the lookout for it. He searched the scene for shell casings but did not find any. Metro Detective Warren Fleak testified that in September 2007, he was a crime scene officer. He investigated the scene of the shooting but found no shell casings. Detective Fleak found the victim’s shirt, which had been removed by emergency medical services (EMS), in White’s yard. He saw several small bullet holes in the shirt. He also noticed powder residue around the holes, indicating that the shots were fired within five feet of the victim. A bullet fell to the ground when he picked up the shirt, and he collected the bullet. Detective Fleak testified that during the investigation, a 1987 Ford Thunderbird was searched, checked for fingerprints, and underwent other forensic testing. Detective Fleak found a pay stub bearing the name of “Michael F. Smith” inside the car. Yolanda Coleman testified that on September 30, 2007, she was living at 2911 Highland Drive, which was located directly across the street from White’s residence. In the early morning hours, Coleman was in her driveway talking on a telephone when she saw a dark-colored car stop in front of the fence surrounding White’s yard. Four or five African- American men were in the car, and two or three of them got out and walked to the fence. The victim came out of White’s house and stood inside the fence. Coleman heard three to six gunshots, saw the African-American men run to the car, and saw the car drive away. Co-defendant Ashton Gains testified that he knew the appellant as “Papa.” Early on the night of September 29, 2007, Gains and the appellant went to a house party in Mt. Juliet. Gains’s cousin, Lance Featherston; Mychal Hendricks; Deandra Smith; and two men Gains knew as “Hootie” and “Hammer” also went to the party. About 8:30 p.m., all of them left the party and went to a McDonald’s restaurant. Gains drove his green Ford Thunderbird, and the appellant, Hammer, and William Davis, also known as “Flame,” rode with him. Deandra1 drove his gray Chevrolet Caprice and was accompanied by Lance, Hendricks, and Hootie. A gun was under the back seat of Gains’s car, and another gun was in Deandra’s car. Gains testified that the group stayed at McDonald’s for one and one-half hours and 1Because some of the witnesses share a surname, we will refer to them by their first names for clarity. -4- drove back to Nashville, dropping off Hootie and Hammer along the way. The appellant, Gains, Lance, Hendricks, Deandra, and Davis gathered at Lance’s house. Gains, Hendricks, Davis, and Lance went into the back bedroom to talk and watch television while everyone else “stayed around in the yard.” The men wanted to smoke some marijuana and go to Club Faded, so Gains asked the appellant if he knew of anyone who sold marijuana. The appellant replied that he might. Gains, who was accompanied by Lance and Davis, followed Deandra, who was accompanied by the appellant, toward the club. En route, the appellant telephoned Gains and said that the victim might have some marijuana and that he would “just rig it up.” They parked a few streets away from the victim’s house, and Gains, Deandra, and the appellant exited the cars. The appellant took Gains’s cellular telephone and gave it to Deandra, who dialed a number provided by the appellant. A few seconds later, the call ended, and Deandra told the men that the victim was not there. The appellant took the telephone from Deandra and dialed. Gains heard the appellant say, “Is Corey there? This is Papa. . . . I was trying to get some weed. . . . Did you have any?” Gains also heard the appellant ask if he could come to the victim’s house and pick up the marijuana. Gains thought the victim’s response was yes. Gains testified that after the call, the appellant returned Gains’s telephone. Gains walked to his car, followed by Deandra. Deandra asked Gains, Lance, and Davis for money to buy the marijuana, and they gave it to him. Deandra then walked over to the appellant, and Gains heard the appellant tell Deandra, “You can rob dude.” Deandra did not respond and “just looked at” the appellant. Gains turned, told the men in his car what the appellant had said, and asked if they had heard it. The men said no. Gains took a “shoe bag” from his car and used it to cover his license plate. Deandra told Gains that he wanted Lance, the appellant, and Hendricks to go to the store and that they would all rendevous in the “Shelbywood” neighborhood. Gains testified that Deandra got into Gains’s car and that they followed the appellant, who was driving Deandra’s Caprice. After a couple of streets, Gains turned onto the street where the victim lived, and the appellant kept driving straight. Gains redialed the number the appellant had called. Gains told the victim that they were almost there, and the victim responded that he was waiting outside. Gains parked in front of the victim’s house and remained in the car with Davis while Deandra got out. Gains saw Yolanda Coleman, who was talking on the telephone, on the front porch of the house to the left of his car and saw the victim give Deandra a bag of marijuana. Deandra examined it and headed toward Gains’s car. However, Gains told him, “Nah, we good,”so Deandra went back to the fence and spoke with the victim for a few seconds. Deandra pulled some money from his back pocket and began counting it. He then pulled out a .357 caliber revolver. The victim put his hands up, and Deandra told the victim “to give him everything out of his pockets.” Davis got out of the car to see what was happening. Deandra repeated his demand, and the victim put -5- his hands into his pockets and withdrew more bags of marijuana. The victim again put his hands up. A few seconds later, Deandra shot the victim three times, and the victim fell to the ground. Deandra and Davis ran back to the car, and Gains started the car. As Gains pulled away, Deandra fired two more shots out the window. Gains testified that Deandra told him to slow down, turn on the headlights, and drive toward Shelbywood. Gains complied and parked in a carport beside a house. Gains exited the car, began pacing back and forth, and removed the bag from his license plate. Deandra walked to the corner of the house. He returned with a gun and a cellular telephone in his hand and tried to calm Gains. Gains, Davis, and Deandra left and met the appellant, Hendricks, and Lance behind Tom Joy Elementary School. Gains testified that Deandra told the appellant, Hendricks, and Lance that “he robbed [the victim] and he had to shoot him.” Deandra offered to share the money with Gains, but Gains refused and said he wanted to leave. Deandra gave Gains some marijuana and returned the money Gains had given him to pay the victim. Deandra also returned Lance’s money and gave Lance some marijuana. As Gains left, the appellant asked for a ride home, and Gains agreed. Gains testified that when he got home, Deandra called to ask if he was “all right,” and Gains responded that he was. Deandra asked if Gains still wanted to go to the club, and Gains said yes. Deandra said that Gains should not drive, that he should leave his car parked in his backyard, and that Deandra would be by soon to pick up Gains. Deandra, Davis, Lance, the appellant, and Gains went to the club and met some females. Afterward, Deandra drove Gains home. Gains then drove to Davis’s house. When the females they had met earlier arrived, Gains and Davis followed them to their home in Kentucky. Gains testified that the next morning, he received a text from Lance, telling him that the shooting was on the television news. Gains and Davis returned to Nashville. A couple of days later, Gains encountered Deandra, who “told [Gains] the story that [Deandra] wanted [Gains] to tell the detectives, or the police, if they ever came questioning.” The story included almost everything that had occurred that evening but omitted going to the victim’s house. Deandra said that he had spoken with everyone else and that they had agreed to tell the police the same story. Gains testified that a couple of days later, he returned home from college and found Detective Curtis Hafley’s card on his front door. Gains called the detective, who came to Gains’s home. Gains told Detective Hafley the story Deandra had concocted. Detective Hafley said that he did not believe Gains and that he wanted Gains to tell the truth. Gains denied knowing anything else, and Detective Hafley left. Later that night, the appellant -6- called Gains and asked, “Where was the gun that [Deandra] used to kill [the victim]?” Gains responded, “I don’t know what you’re talking about.” Gains said that the appellant contacted him again after the call about Deandra’s gun. During those conversations, the appellant told Gains “not to say anything” and that the State did not have “anything.” Gains said that he knew Michael Smith from school, that Michael also drove a Ford Thunderbird, and that Michael was the appellant’s friend. Gains testified that one-half hour or one hour later, which was close to midnight, he heard Detective Hafley and other officers knock on his door, asking to come inside. Gains agreed. Upon questioning, Gains became “emotional,” “broke down,” and “let them know the truth of what had happened that day.” Afterward, Gains was taken to the police department, interviewed again, and arrested. On cross-examination, Gains testified that when the men stopped a few streets from the victim’s house to talk about getting marijuana from the victim, Gains was parked behind Deandra’s car. The driver’s window of Gains’s car was rolled down, and Gains was standing beside the driver’s door. The appellant and Deandra were standing between the two cars. Gains did not hear their entire conversation, explaining that he was not paying attention the entire time. However, he heard the appellant say, “You can rob Dude.” Gains did not think anyone else was paying attention to the conversation. Gains testified that after he was transported to the police department, his conversation with the police lasted about thirty minutes. Detective Hafley asked, “Did Papa set this up? Is he the one in charge?” Gains responded, “I guess he must be.” Gains acknowledged that he never heard the appellant tell Deandra to shoot the victim. He also acknowledged that the victim’s name was never mentioned until he suggested that the men buy some marijuana. The appellant said he knew someone from whom they could make the purchase. Before the buy, Deandra collected money from the men to pay for the marijuana. Gains said that he hoped his testimony would help him obtain favorable treatment from the State. However, he said he would have testified anyway in order to relieve his conscience. Co-defendant Lance Featherston testified that on the evening of September 29, 2007, he, the appellant, Deandra, Gains, Hendricks, and Davis went to a party in Mt. Juliet. Deandra had a .357 caliber gun. After the party, they went to a McDonald’s restaurant. They left McDonald’s and went to Lance’s house, and Lance went inside and changed his clothes to go to a club. Lance’s sister, Asica Featherston, was in the house, but she did not come out of her bedroom while the men were there. Lance went back outside, and the appellant asked if they wanted to rob the victim. Lance said the men “brushed it off” and told him, “We don’t care.” Lance and Gains gave the appellant money to purchase the marijuana. -7- Lance testified that the men left his house in two cars and drove toward the victim’s house. One street before the victim’s street, Deandra, Gains, and the appellant got out of the cars. Gains covered his license plate and got back into his car. The appellant and Deandra were standing in front of Gains’s car, and Lance heard “bits and pieces” of their conversation. He said he heard the appellant tell Deandra that Deandra had to kill the victim. Deandra said okay, and the men returned to their respective cars. Davis, Deandra, and Gains left first in the green Thunderbird and made a left turn. The appellant, Lance, and Hendricks were in a gray Caprice, and they made a right turn to take Hendricks home. While they were near the victim’s house, Lance heard three gunshots, screeching tires, and two more gunshots. Lance was surprised to hear the gunshots because he did not think the appellant and Deandra had actually intended to kill the victim. Lance telephoned Gains to find out what was happening, but no one answered. Ten or fifteen minutes later, Hendricks called the men in the other car and arranged to meet them by a school. After everyone arrived, Deandra said that he had shot the victim. The appellant gave Lance and Gains some marijuana, and Deandra and the appellant split a small amount of money. Lance testified that a few days after the shooting, he, Gains, Davis, and the appellant were at Davis’s house. Lance’s mother called and said that detectives were there to talk to him. The appellant “told [Lance] not to say nothing.” Lance walked home and spoke with the detectives. Lance feared for his family’s safety, so he lied to the detectives, claiming that he did not know anything about the robbery and murder. After his arrest, he told the police the truth. On cross-examination, Lance testified that by the time the men stopped a block from the victim’s house, “there had already been a plan that [the victim] was going to get robbed.” He acknowledged that when he spoke with the police before his arrest, he omitted his knowing about the robbery and murder. After his arrest, he disclosed everything he knew about the crimes. He acknowledged that he testified on behalf of the State in a different case and that he received probation in exchange for his testimony. He said he hoped to receive consideration from the State for his testimony in this case but would have testified anyway. Metro Detective Curtis Hafley testified that he was the lead investigator for this case and arrived at the scene after 1:00 a.m. on September 30, 2007. He interviewed various witnesses. No one knew the name of the shooter, but some of the witnesses described a dark- colored car that was either a Ford Thunderbird or a Mercury Cougar. Haines told Detective Hafley that the victim had received telephone calls immediately before the shooting, including a call from the appellant. Additionally, Haines said that the appellant previously had come to the victim’s residence in a dark-colored Thunderbird. Detective Hafley testified that in the early afternoon hours of September 30, he went -8- to the appellant’s home and interviewed him. Detective Hafley audio-recorded the interview. During the interview, the appellant said that the previous night, he went to a party in Mt. Juliet, went to McDonald’s, and eventually proceeded to Club Faded. The appellant said he had been with Davis, Deandra, Lance, Gains, and Hendricks. The men traveled in two cars, Deandra’s gray Chevrolet Caprice and Gains’s green Ford Thunderbird. The appellant said that Michael Smith had owed the victim forty-five dollars and that Michael had “mentioned something about robbing [the victim], but [the appellant] thought that Michael Smith was to[o] much of a weakling to do that.” Detective Hafley testified that he learned that Michael owned “a dark-colored gray, silver Ford Thunderbird.” Detective Hafley went to Michael’s home and saw the Thunderbird parked behind the house. Michael denied any involvement in the shooting, and the police confirmed his alibi. The police searched Michael’s car but found no evidence connecting it to the crimes. Detective Hafley testified that he retrieved the telephone records of the appellant and his co-defendants, which revealed that the first call to the victim on the night of the shooting originated from Gains’s cellular telephone. The next call, during which Haines recognized the appellant’s voice, came from Deandra’s telephone. Detective Hafley said that he spoke with Haines, Coleman, Lance, and Deandra. He also spoke with Felix Ridley, Jr., who was known as “Hootie” and who was related to Davis. Detective Hafley interviewed Gains at the police department and learned that the victim’s cellular telephone had been discarded in a park on Oakwood. Police later found the telephone in the area Gains had described. On cross-examination, Detective Hafley testified that the police were unable to match the bullets recovered from the victim’s body to a particular gun. He stated that, initially, Gains was reluctant to discuss the crimes and hesitant to talk about the appellant. Detective Hafley testified that the appellant conceded that he went to McDonald’s with his co-defendants on the night of the shooting but never admitted to any involvement in the crimes. Detective Hafley acknowledged that Deandra had been incarcerated for a previous conviction of especially aggravated robbery. Dr. Amy R. McMaster, the Chief Medical Examiner for Davidson County, testified that she performed the victim’s autopsy. The victim received four gunshot wounds. One of the wounds was to the victim’s right hand and was not life-threatening. The other three wounds were to the torso and were potentially fatal. The victim’s blood tested positive for “THC,” the active ingredient in marijuana. Agent Michael Frizzell of the Tennessee Bureau of Investigation (TBI) Technical -9- Services Unit testified that Detective Hafley gave him Deandra’s cellular telephone records for the night of the shooting and requested an analysis. The records revealed that at 12:55 a.m. on September 30, 2007, a call was placed from Deandra’s cellular telephone to the victim’s telephone. The call was relayed through a cellular antenna located at 3217 Dickerson Pike, indicating that Deandra was close to the victim’s residence when the call was placed. Agent Frizzell cautioned, however, that “you cannot pinpoint someone’s location based on what cell phone tower their cell phone might hit off of.” Asica Featherston, Lance’s Featherston’s older sister, testified for the appellant that she and the appellant were dating at the time of the shooting. Asica arrived at her residence before midnight on September 29, 2007. Lance’s “baby-mama” was with her. At the time of their arrival, Lance, Gains, Deandra, Davis, Hendricks, and the appellant were standing outside the residence, “hanging out.” Asica spoke with the appellant, and he told her they were going to buy marijuana. Beth Halstead testified that she was an employee of the Davidson County Criminal Court Clerk’s Office. She said Deandra had prior convictions of especially aggravated robbery and aggravated robbery. The jury convicted the appellant as charged of first degree felony murder and especially aggravated robbery, a Class A felony. The trial court imposed concurrent sentences of life and eighteen years, respectively. Thereafter, the appellant filed a motion for a new trial, a motion for a judgment of acquittal, and a petition for a writ of error coram nobis. The trial court denied the motions and the petition. II. Analysis A. Sufficiency of the Evidence The appellant contends that the evidence is insufficient to show that he was criminally responsible for Deandra’s killing the victim. On appeal, a jury conviction removes the presumption of the appellant’s innocence and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. See State v. -10-