State of Tennessee v. Gai D. Kuot

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 18, 2013

STATE OF TENNESSEE v. GAI D. KUOT

Appeal from the Criminal Court for Davidson County
No. 2010-B-1529 Monte Watkins, Judge

No. M2012-01884-CCA-R3-CD - Filed August 26, 2013

The defendant, Gai D. Kuot, was convicted by a Davidson County Criminal Court jury of
premeditated first degree murder, first degree felony murder, and especially aggravated
robbery. The court merged the murder convictions and sentenced the defendant to life
imprisonment. The court imposed a concurrent sixteen-year sentence on the especially
aggravated robbery conviction. On appeal, the defendant argues that: (1) the trial court erred
in denying his motion to dismiss for lack of a speedy trial; (2) the trial court erred in
admitting, over his objection, hearsay statements of Sammy Sabino; and (3) the evidence is
insufficient to sustain his convictions. After review, we affirm the judgments of the trial
court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Gai D. Kuot.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Deborah M. Housel and Brian
K. Holmgren, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

On June 11, 2010, the defendant was charged with premeditated first degree murder,
first degree felony murder, and especially aggravated robbery, arising out of the shooting
death of the victim, Malith Wiek, in the early morning hours of April 21, 2010.
 At trial, David Norton, facility manager for Montgomery Bell Academy, “MBA,”
testified that the victim, a “Lost Boy” refugee from Sudan, obtained employment at MBA as
a custodial worker though Catholic Charities and World Relief Refugee Resettlement
Programs on June 1, 2004. The victim maintained his employment until his death in April
2010. Norton was the victim’s direct supervisor and noted that the victim “got along with
everybody.”

Norton testified that the victim’s shift began at 1:00 p.m. and ended at 10:00 p.m., and
he received an annual salary of $23,000. The victim also had a side business of selling long
distance phone cards to other members of the refugee community in Nashville. As a result,
the victim carried a large roll of cash in his pocket. Norton was never aware of an occasion
when the victim was in need of financial assistance. The morning of April 21, 2010, Norton
was notified by authorities that the victim was dead. He met with investigators and provided
them with the victim’s work schedule from the previous night.

Sergeant Mitch Kornberg with the Metro Nashville Police Department testified that
he responded to an injured person call at 42nd Avenue North and Indiana Avenue on April
21, 2010. When he arrived, Sergeant Kornberg saw a black male sitting on the ground,
leaning against a chain-link fence. The individual had been shot multiple times and was
deceased. The body was located in the corner of an L-shaped part of the fence outside a
business, and Sergeant Kornberg surmised that the victim had been trapped in this portion
of the fence. The victim was wearing a maroon MBA shirt with tan pants and a name tag on
a lanyard around his neck. Sergeant Kornberg noticed calling cards or credit cards on the
victim’s lap.

William Deng testified that he immigrated to the United States in 1995, and he was
reacquainted with the victim, his cousin, when the victim moved to the United States in 2004
from Sudan. Deng knew the victim’s father, as they were from the same village in Sudan.
In 2009, Deng relinquished his apartment and visited Sudan for three months. When he
returned to the United States, Deng moved in with the victim and the defendant in their
apartment at 5800 Maudina Avenue. The victim and the defendant each occupied a
bedroom, and Deng slept on the couch. Deng gained employment at Standard Candy
Company about two months after moving in with the victim and the defendant. After he got
a job, Deng started paying rent to live in the apartment.

Deng testified that, before his return trip to Sudan, he worked in a security job, which
required that he carry a gun. He bought a PT 92 Beretta nine-millimeter at Gun City USA,
and he had two magazines for it – one he kept in the weapon and one in the glovebox of his
Nissan Pathfinder. Deng stored the gun between the driver’s and passenger’s seats, hidden
from view. On April 12 or 13, 2010, Deng discovered that his gun was missing and called

-2-
the police. His car was locked and showed no signs of forced entry. Whoever took Deng’s
gun did not take its holster or the magazine in the glovebox. The police informed Deng that
he had to have the serial number in order to file a report, so he went to Gun City and paid
them to retrieve his serial number. After a phone call and visit by Deng, Gun City had still
not provided the serial number, although an employee informed Deng that “[t]hey ha[d] a lot
of leads[.]” Deng noted that he always placed his keys on the kitchen table when he entered
the apartment, as did both the victim and the defendant. He said that he and the victim got
along well.

Deng testified that the victim bought calling cards in bulk and sold them to members
of the Sudanese community in Nashville, often at a coffee shop on Murfreesboro Road
popular amongst the Sudanese men. When the victim received cash for the cards, he either
took it to the bank or put it in his pocket. Deng noted that the victim “sometimes” had cash
on him. The victim carried the phone cards in a black computer bag that he kept with him
or in his room.

Deng testified that, during this time period, he was studying Criminal Justice at
Strayer University and attended classes on Monday and Tuesday evenings from 6:00 to 10:00
p.m. On April 20, 2010, Deng got out of class early, around 9:00 or 9:20 p.m., and went
home and watched a basketball game. No one else was home at the time, and Deng fell
asleep on the couch and did not hear either of his roommates come home that night.

Deng testified that, the next morning, two or three detectives came to the apartment
and spoke with him. The detectives knocked on the door to the defendant’s bedroom and,
although Deng had not heard the defendant come home, the defendant exited his room
wearing street clothes. Deng thought it was unusual that the defendant was not wearing
“sleeping clothes” like he normally did. After seeing that the defendant was home, Deng
expected the victim to be home as well and was surprised that the victim was not in his room.

Deng testified that the officers asked them to come to the police station, and Deng
drove himself and the defendant there to be interviewed. Deng recalled that the victim drove
a Nissan Sentra, and he showed the police where the victim had bought the car. Afterwards,
Deng and the defendant went back to their apartment. Deng asked the defendant if he had
spoken with the victim the previous night, and the defendant said, “No.” Deng recalled that
a funeral service was held for the victim, and the defendant did not attend.

Deng testified that the defendant did not have a job at the time of the murder and had
not had one for approximately two years. He said that the defendant had ridden in his car
before and knew that he kept a gun in his car. Deng recalled that the victim had loaned
money to people, but he was not aware of the victim loaning the defendant any money.

-3-
 On cross-examination, Deng denied that the victim told him that he would have to
leave the apartment because his name was not on the lease. Deng also denied that he tried
to borrow money from the victim when he returned from Sudan and the victim refused to
lend it to him. Deng said that he did not meet the defendant in 2007 and that he had only
known the defendant for about a year.

Sammy Sabino testified that he was a co-worker of the victim’s at MBA. On April
20, 2010, Sabino worked from 5:13 p.m. to 2:07 a.m., and he saw the victim during a work
break. Noting that he should have gotten off work already, Sabino asked the victim what he
was still doing at work. The victim indicated that he was going to a Kroger store to meet
someone, and he was waiting at work until that person’s shift started. The victim also told
him that he was going to be picking up a roommate in Gallatin later that evening but did not
identify which roommate. Around 11:15 p.m., the victim said he was going to Kroger and
left in his black Nissan Sentra. Sabino did not see the victim with a jacket that evening.
Sabino was aware that the victim sold telephone calling cards and had seen the victim with
large sums of money on his person. Sabino had warned the victim that it was not safe to
carry around large amounts of cash.

Michael Owens, an employee of the Belle Meade Kroger store, supplied officers with
the April 20, 2010 footage from the store’s surveillance cameras. The officers asked Owens
if Abraham Malook had been working that night and the hours he worked. Owens informed
the officers that Malook had stocked items in the dairy department and had worked his entire
shift of 11:00 p.m. to 7:00 a.m. The surveillance footage showed a tall, Black man wearing
a red shirt and khaki pants leaving a black car and entering the store at 11:31 p.m. The
footage showed the same man leaving the store alone at 11:35 p.m.

Stacey Newman testified that she lived at 620 41st Avenue North, which was in close
proximity to 42nd Avenue North, in April 2010, and she heard two or three gunshots around
12:30 a.m. on April 21, 2010.

Officer William Kirby with the Metro Nashville Police Department’s Identification
Unit testified that he responded to the scene at 42nd Avenue North and Indiana Avenue at
8:45 a.m. on April 21, 2010. He took photographs, diagramed the crime scene, and collected
evidence. He retrieved four spent nine-millimeter shell casings and one unfired nine-
millimeter round from the scene. Two of the spent rounds were located near the victim’s
feet, as was the unfired projectile, and two spent rounds were located a distance to the east
on Indiana Avenue. The location of the two spent rounds on Indiana Avenue led Officer
Kirby to believe that the shooter fired as he was moving to the west in pursuit of the victim.
In addition, Officer Kirby found various items scattered around the victim’s body, one of
which was a prepaid phone card. Officer Kirby noted that there was also an empty cell phone

-4-
case attached to the victim’s belt. The officer recovered an additional projectile from the
warehouse that stood approximately 150 to 200 feet behind the victim’s body.

Detective Tim Codling with the Metro Nashville Police Department testified that he
responded to the scene where the victim’s body was found on April 21, 2010. Detective
Codling canvassed the area and also interviewed the bus driver who first saw the victim’s
body. No one he spoke to heard shots fired or saw anyone fleeing the scene.

Officer Charles Linville with the Metro Nashville Police Department Technical
Investigation Section responded to the crime scene at 42nd Street and Indiana Avenue on
April 21, 2010, and took photographs of the area. The following day, Officer Linville went
to the victim’s apartment to collect a sample of the defendant’s fingerprints. He also
photographed items detectives pointed out while searching two vehicles, William Deng’s
dark-colored Toyota Pathfinder and the defendant’s white Volvo, outside of the apartment
and collected some of those items as evidence. Evidence retrieved from the Pathfinder
included a magazine of Independence brand nine-millimeter ammunition. Evidence collected
from the Volvo included four phone cards and two Western Union receipts. The Western
Union receipt indicated that Gai Deng wired $100 to Uganda at 2:30 p.m. on April 20, 2010.
The Western Union used by “Gai Deng” was located at the Charlotte Pike Kroger.

Officer Nathaniel Ward with the Metro Nashville Police Department Crime Scene
Unit was dispatched to a scene at 1118 Sharpe Avenue on April 21, 2010, to process a black
Nissan Sentra parked in the alley that was believed to have been involved in a homicide.
There were two bullet holes in the driver’s side of the car that appeared to have been fired
from the interior of the vehicle, and a cartridge casing was located on the front passenger’s
side. The driver’s side rear window had been shattered by a gunshot, but it could not be
determined whether the shot was fired from inside or outside of the car. The victim’s wallet
was found in the grass near the vehicle. The wallet’s contents were found on the ground
beside it.

Felicia Evans with the Metro Nashville Police Department Crime Scene Unit testified
that she was involved with Officer Ward in processing the black Nissan Sentra recovered
from Sharpe Avenue. She noted that the magazine of unfired bullets recovered from the car
were Independence nine-millimeter Lugers, a brand that was not “very common to our area.”
She elaborated that “it is a very rare occasion that you find an entire magazine full of
Independence.” She recalled that the cartridge casing recovered from the passenger’s side
of the car between the seat and the door was also Independence brand. Evans stated that the
evidence indicated that two shots had been fired from inside the vehicle and exited the
vehicle on the driver’s side.

-5-
 Linda Wilson, an expert in latent print examination with the Metro Nashville Police
Department, testified that a fingerprint lifted from the back of a camera found in the victim’s
car belonged to the defendant. On cross-examination, Wilson acknowledged that she had no
way of knowing when the fingerprint was placed on the camera.

Dr. Amy McMaster, an expert in forensic pathology, conducted an autopsy of the
victim and determined that the victim received a total of eight gunshot wounds. Among
these wounds were one to the larynx, a grouping of three to the torso, another to the left
lower chest area, one to the left forearm, one to the upper left thigh, and one to the right knee.
She said that the gunshot wound to the victim’s knee would have made running very difficult
and painful. Dr. McMaster did not observe any gunshot residue or soot on the victim’s
wounds or clothing.

Paul Remijo, a native Kenyan, testified that he met the defendant through his former
roommate and had known him for about five months. In April 2010, Remijo lived at 2548
Willow Branch in Antioch. Remijo said that the defendant and Dennis Ogwang were at his
house playing cards on April 18, 2010 until about midnight. They did not play cards on April
20, 2010.

Dennis Ogwang testified he last played cards with the defendant on Sunday night,
April 18, 2010, at Remijo’s house. On Tuesday night, Ogwang was actually playing poker
at Bailey’s Sports Bar, and the defendant was not there. Ogwang recalled that, before he
went to the police station to talk to the police, the defendant called him and asked if the
police had called him. Ogwang asked the defendant, “Why,” and the defendant responded
that he was being investigated for something. The defendant then said to Ogwang, “Hey, if
the police ask you, can you tell them that we played cards on Tuesday?” The defendant said
that the police would be asking Ogwang if he played cards with him on Tuesday, and the
defendant wanted Ogwang to tell them that he had. Ogwang told the police about his
conversation with the defendant, and he called the defendant on speaker phone while with
the police.

Yvonne Claybrooks testified that, on April 21, 2010, she and her neighbor were sitting
on her front porch on DeMoss Road when they saw a white, four-door Volvo with a yellow
marking on one of its tires stop in front of the vacant lot next to her house. She saw a black
arm reach out the window and throw a red jacket over the car and into the ditch. However,
the car’s windows were so tinted Claybrooks could not see the driver’s face. After the car
left, Claybrooks and her neighbor walked down to the ditch to see what had been thrown out.
Using a stick, they found a stack of phone cards held together with a rubber band in the
middle of the jacket.

-6-
 Claybrooks testified that the police were in the area the next day searching the location
where the jacket had been thrown. As they were searching, Claybrooks saw the Volvo drive
down her street. Claybrooks walked over to the police and told them everything that she had
seen. The next day, Claybrooks saw a man wearing flip-flops walk completely up and back
down her street, talking on his cell phone and looking in the ditch. Claybrooks did not
recognize the man, and she thought it was strange that he was wearing flip-flops because
most people wore sneakers when they walked on the street for exercise. She thought it was
“so strange” to see this individual that she called Detective Truitt. The detective came to her
house and showed her a photographic array, from which she identified the defendant as the
man she saw walking down the street searching in the ditch.

Royce Cavender testified that he was walking his dog on DeMoss Road around 5:00
p.m. on April 21, 2010 when he noticed a red jacket lying in the ditch with a stack of cards
beside it. The jacket looked “out of place,” so he called the police.

Officer James Rowland with the Metro Nashville Police Department testified that he
responded to “a found property call” on April 21, 2010 on DeMoss Road. After his
investigation, he collected a maroon jacket and some calling cards from the ditch beside the
road.

Agent Jennifer Shipman, a forensic scientist with the Tennessee Bureau of
Investigation, “TBI,” testified that one of the exhibits she tested in this case was the red
jacket recovered from DeMoss Road. There was blood on the right cuff of the jacket, and
the DNA profile was a match to the victim. She later swabbed inside the cuff and the collar
of the jacket and was unable to exclude the victim or the defendant as the contributor of the
partial profile of DNA she obtained.

Detective Dean Haney with the Metro Nashville Police Department reviewed the
victim’s cell phone records and tracked which cell phone towers the victim’s phone used on
the night of the murder. The victim’s cell phone was used in the Chickamauga area of East
Nashville. Detective Haney testified that when he went to the victim’s apartment on April
21, 2010, as part of the investigation, William Deng was present, as was the defendant, who
gave the name of Gai Deng. He said that the defendant appeared to be dressed in street
clothes. The jury was shown the surveillance footage from the Kroger store during Detective
Haney’s testimony. Detective Haney said that the subject in the video was wearing similar
clothing to what the victim was wearing that night, but the quality of the video prevented a
positive facial identification.

Detective Russell Thompson with the Metro Nashville Police Department detailed his
actions in investigating the case, including interviewing the defendant twice on April 21,

-7-
2010. On April 22, 2010, Detective Thompson was on DeMoss Road looking into some
personal property that had been found there. He noted that DeMoss “was kind of a cut-
through to M[audina] Avenue, which is where the defendant lived at that time.” While there,
Detective Thompson saw the defendant drive by in a white Volvo. He later assisted in a third
interview of the defendant.

Detective Thompson testified that, in his first interview of the defendant, the
defendant said that he had not talked to the victim in person or on the phone since 12:30 p.m.
on April 20, 2010, when the victim was going to work. During the second interview of the
defendant, the defendant maintained that he had not spoken to the victim on his cell phone.
After Detective Thompson received the victim’s cell phone records, he learned that there had
been several calls between the victim’s and the defendant’s phones from around 10:30 p.m.
until shortly after midnight on the night of the murder, which was contrary to what the
defendant had told them.

Detective Thompson testified that the defendant told them that he was playing cards
with “Dennis” in Antioch the evening of April 20, 2010. Detective Thompson noted that the
defendant had given Detective Truitt permission to look through his cell phone, and
Detective Truitt had written down the phone number for Dennis. When the detectives asked
the defendant for Dennis’ number, the defendant took his phone back, looked through it,
handed it back, and said that the number was not in there. Detective Thompson said that they
discovered that Dennis’ number had been erased.

Detective Thompson testified that the defendant initially told him that he did not know
of the victim’s having a checking or savings account. However, during his investigation, he
learned that checks made out to the defendant had been written from the victim’s bank
account. The defendant initially told them that the victim had written the checks. During his
second interview, the defendant said that the victim had given him the checks.

Detective Thompson testified that they recovered a book from the victim’s car. One
of the pages had the name “Abraham Malook,” next to two dates, “2/27/10 and 3/27/10.”
Written next to Malook’s name was “$400.” Detective Thompson stated that the dollar sign
in that entry could be a dollar sign or the number eight.

On cross-examination, Detective Thompson acknowledged that the defendant gave
them the phone number for the person he was allegedly playing cards with on the night of
the murder. He admitted that he did not have a gunshot residue test performed on the
defendant even though he interviewed him less than twelve hours after the murder occurred,
but he explained that he chose not to do one because “[a]t that point, he [was] just a
roommate.” Detective Thompson recalled that Abraham Malook owed the victim some

-8-
money. On redirect, after refreshing his recollection, Detective Thompson stated that
Abraham Malook told the police that the victim had come to the Kroger store where he was
employed on April 20 to “ask him about four hundred dollars that he borrowed.”

Detective Stanley Truitt with the Metro Nashville Police Department testified
regarding the actions he took as lead investigator in this case. He visited the crime scene,
then went to the victim’s apartment and had both of the victim’s roommates go to the police
station and interviewed them. After learning from the victim’s phone records that the
defendant was the last person the victim talked to, Detective Truitt interviewed the defendant
a second time because the defendant had originally said that he had not talked to the victim.

Detective Truitt testified that, after the second interview of the defendant, he learned
about the recovery of the red jacket and calling cards on DeMoss Road. While on-site
speaking with Yvonne Claybrooks, Detective Truitt saw a white Volvo drive by that
Claybrooks identified as being the vehicle from which the items were thrown. Detective
Truitt could see the driver of the car, whom he identified as the defendant.

Detective Truitt testified that a group of Sudanese lived at 1149 Sharpe Avenue, “in
very close proximity” to where the police found the victim’s car. Detective Truitt also
recalled listening to Ogwang’s conversation with the defendant over speaker phone, the
“gist” of the conversation being the defendant telling Ogwang to “[j]ust tell them that I was
with you playing cards.”

Detective Truitt testified that he interviewed the defendant a third time. At some point
during the interview, the defendant was asked to write his name and the victim’s name, and
the defendant changed portions of his name after he had written it but denied doing so.
Detective Truitt said that the defendant never admitted that he was not in Antioch or that he
wrote and forged the victim’s checks.

Detective Truitt testified that he interviewed the defendant’s girlfriend, Teresa Bostic,
and, based on information she provided, he went to a pawnshop at 801 Gallatin Pike and
obtained the store’s video surveillance footage from March 29, 2010. The video showed the
defendant looking at, among other things, the gun section of the pawnshop. The detective
stated that papers were retrieved from the defendant’s vehicle that indicated he owed the state
for overpayment of unemployment benefits and also had an outstanding debt to a college in
Michigan. They also found a request for emergency travel in the defendant’s car. Detective
Truitt drove the route between where the victim’s body and his car were found, and it took
him approximately fifteen minutes driving the speed limit.

On cross-examination, Detective Truitt admitted that Abraham Malook had left the

-9-
area and could not be found. The detective agreed that the defendant said in his statement
that the victim owed him $900 and that was the reason that the checks on the victim’s bank
account were written to him.

The parties stipulated that the defendant prepared six checks on the victim’s account
at SunTrust Bank as follows:

(1) Check number 194; April 8, 2010; $300
(2) Check number 195; April 10, 2010; $100
(3) Check number 196; April 13, 2010; $100
(4) Check number 197; April 17, 2010; $100
(5) Check number 198; April 18, 2010; $100
(6) Check number 199; April 19, 2010; $100

All of the checks were made out to the defendant and purported to bear the signature of the
victim, but, in fact, the defendant signed the victim’s name. The parties further stipulated
that the defendant endorsed and cashed the checks.

Agent Michael Frizzell, an expert in the field of law enforcement use of
communication records for the TBI, testified that he reviewed the phone records for the
victim, the defendant, and William Deng for the time period in question and determined
which cell phone antennas were utilized or “pinged” for various calls. He first noted that
there were numerous communication events between the defendant’s and the victim’s cell
phones the evening of April 20, 2010, until shortly after midnight on April 21, 2010. The
defendant’s cell phone “pinged” off of a cell antenna located at 738 Gallatin Pike for every
call during this time period.

On April 20, the victim’s cell phone first used an antenna close to MBA, where he
worked. Around 11:44 p.m., the victim’s phone started “pinging” off of different antennas,
indicating that he was moving at that time. The final communication from the victim’s cell
phone occurred with the defendant at 12:13 a.m. on April 21. At that time, the defendant’s
cell phone “pinged” off the T-Mobile antenna located on Gallatin Pike and the victim’s cell
phone “pinged” off the Sprint antenna on McFerrin Avenue, which were the closest antennas
to 1118 Sharpe Avenue where the victim’s car was found.

Agent Frizzell testified that the distance between 184 Twin Oaks Drive in Antioch,
an address provided to him by Detective Truitt, and the T-Mobile antenna on Gallatin Pike
was 5.9 miles and there were fifty-seven other cell antennas between the two locations. If
the defendant’s phone was near the Antioch address, it should have used any of those fifty-
seven other antennas before it used the antenna on Gallatin Pike. From his investigation,

-10-
Agent Frizzell found no times during the particular time frame at issue when the defendant’s
cell phone “pinged” off of an antenna in Antioch. Agent Frizzell stated the William Deng’s
cell phone “pinged” only off a cell antenna located near his apartment during the time in
question.

The defendant, a native of South Sudan, testified that he considered the victim his best
friend and like a brother. He acknowledged that he was not working during the time he lived
with the victim but said that he was drawing unemployment and obtained a job at Walmart
about a month before the murder. He said that he knew the victim sold calling cards.

The defendant testified that he loaned the victim $900 from his 2008 tax return so the
victim could buy a car. He said that the victim could write in English but not very well, so
he had other people, including the defendant, fill in his checks for him. The victim had the
defendant fill out checks to himself and sign them for him, which were in repayment of the
loan. The defendant acknowledged that the victim could write his own name but allowed the
defendant to write the checks because he trusted him.

The defendant testified that he possibly had a lapse of memory when he told the police
that he did not speak to the victim on the phone on April 20, 2010. He said that the victim
had asked him to call if he heard any news about an election going on in Sudan and that was
what they discussed. The defendant claimed that he was playing cards in Antioch the first
time he spoke to the victim and that he got home around midnight on April 21. He did not
see the victim after the victim left for work around noon, and he did not shoot the victim.
He did not know why Dennis Ogwang and Paul Remijo would deny playing cards with him
that night but thought it might be because they were afraid of the police. He knew William
Deng had a pistol, but he did not steal it.

The defendant recalled a time that the victim and William Deng got into an argument
after the victim refused to loan Deng $200. The defendant said that Deng was not on their
lease agreement, and he only paid rent one of the six months that he lived with them. The
victim told Deng that he had to move. The defendant denied being in need of money during
the time the victim was killed and said that he was sending money to his family in Africa.
The defendant also denied throwing a red jacket and calling cards into a ditch on DeMoss
Road.

On cross-examination, the defendant denied that the victim asked him to move out of
the apartment. The defendant admitted that he spoke to the victim twice on the phone while
the victim was at MBA on April 20. However, he alleged that Sammy Sabino lied regarding
the content of their conversation because Sabino could not speak Dinka, a tribal Sudanese
language. The defendant said that Yvonne Claybrooks and Dennis Ogwang also lied in their

-11-
testimony. The defendant conceded that he knew a group of Sudanese men who lived on
Sharpe Avenue and that he visited Sharpe Avenue regularly when his uncle lived there.

The defendant testified that he was the only person who used his cell phone on the
night of April 20. The defendant agreed that Teresa Bostic, his girlfriend at the time of the
incident, testified that he was looking for a gun at the pawnshop, but he maintained that he
looked at many items in the pawnshop. The defendant admitted that he was in debt to the
State of Tennessee for overpayment of unemployment benefits and that he also owed money
to a college he attended in Michigan and the IRS. He stated that he only requested
emergency travel to Africa because his brother-in-law died, but he conceded that he did not
tell Detective Truitt that he intended to leave the country. The defendant denied initially
telling the police that he did not know the victim had a bank account.

Following the conclusion of the proof, the jury convicted the defendant, as indicted,
of premeditated first degree murder, first degree felony murder, and especially aggravated
robbery.

ANALYSIS

I. Speedy Trial

The defendant first argues that the trial court erred in denying his motion to dismiss
for lack of a speedy trial. He asserts that the two-year span of time between the date of the
offenses and the trial date rendered the memories of the State’s witnesses unreliable.

The record shows that the defendant was indicted on June 11, 2010, and his case
proceeded to trial exactly two years later on June 11, 2012. The case was originally set for
trial on October 24, 2011, but was continued because the court elected to hear an older case.
The defendant filed a motion to dismiss for lack of a speedy trial on December 8, 2011. The
trial court addressed the motion on January 13, 2012 and, after hearing argument from the
parties, explained that some of the delay was due to the number of criminal cases in the
Davidson County courts and lack of resources. The court ruled:

I understand [the defendant] wants to go to trial. I want him to have his
day in court, and he will have his day in court very soon. I don’t think that he
has been prejudiced in any way because of the circumstances that we operate
under.

As such, I am going to respectfully deny his motion to dismiss. And we
will have his trial on the next trial date.

-12-
 Both the United States and Tennessee Constitutions guarantee criminal defendants the
right to a speedy trial. U.S. Const. amend VI; Tenn. Const. art. I, § 9; State v. Utley, 956
S.W.2d 489, 492 (Tenn. 1997). A right to a speedy trial is also statutory in Tennessee. See
Tenn. Code Ann. § 40-14-101. The Tennessee Rules of Criminal Procedure provide for the
dismissal of an indictment if there exists unnecessary delay in bringing a defendant to trial.
Tenn. R. Crim. P. 48(b). The Tennessee Supreme Court employs the balancing test that the
United States Supreme Court established in Barker v. Wingo, 407 U.S. 514 (1972), to
determine whether a speedy trial violation has occurred. See State v. Simmons, 54 S.W.3d
755, 759 (Tenn. 2001). The Barker test weighs (1) the length of delay, (2) the reasons for
the delay, (3) the accused’s assertion of the right to a speedy trial, and (4) the prejudice
resulting from the delay. Barker, 407 U.S. at 530-32. If a court determines, after applying
the Barker balancing test, that a defendant has been denied a speedy trial, the remedy is
dismissal of the indictment. Id. at 522. This court reviews the trial court’s determination
regarding whether the defendant’s right to a speedy trial was violated for an abuse of
discretion. State v. Hudgins, 188 S.W.3d 663, 667 (Tenn. Crim. App. 2005) (citing State v.
Jefferson, 938 S.W.2d 1, 14 (Tenn. Crim. App. 1996)).

We first consider the length of the delay. Generally, post-accusation delay must
approach one year to trigger a speedy trial inquiry. See Doggett v. United States, 505 U.S.
647, 652 n.1 (1992); Utley, 956 S.W.2d at 494. Here, the grand jury returned the indictment
against the defendant on June 11, 2010, and his case proceeded to trial exactly two years later
on June 11, 2012. As such, there was a delay of longer than one year, thus triggering further
inquiry. However, we note that a two-year delay is not necessarily unreasonable when
compared to other cases. See Simmons, 54 S.W.3d at 759 (in a case with an approximate
twenty-three-month delay between the return of the indictment and the defendant’s arrest,
the court observed that the delay, while “sufficient to trigger the speedy trial analysis, . . .
[wa]s not necessarily unreasonable when compared to other cases,” citing delays of thirteen
years in State v. Wood, 924 S.W.2d 342, 346 (Tenn. 1996) and six years in Doggett, 505 U.S.
at 653); State v. Bishop, 493 S.W.2d 81, 84-85 (Tenn. 1973) (finding that a delay of two
years supported a defendant’s claim of lack of a speedy trial but noting that such delay “is
not per se extreme and is not such a length of delay that from this fact alone we would
presume prejudice”).

Next, we consider the reason for delay. This factor generally falls into one of four
categories: (1) intentional delay to gain a tactical advantage over the defense or to harass the
defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to the fair and
effective prosecution of the case; and (4) delay caused, or acquiesced in, by the defense.
Wood, 924 S.W.2d at 346-47.

There is little evidence in the record regarding the reasons for the delay. The record

-13-
contains an order of April 21, 2011, whereby the court, at the suggestion of the Vanderbilt
University Forensic Evaluation Team, directed the defendant to be evaluated at Middle
Tennessee Mental Health Institute to determine the defendant’s competency to stand trial and
mental condition at the time of the crimes. In its argument at the motion hearing, the State
noted that one of the reasons the case was not set for trial immediately was because the
defense wanted to have the defendant evaluated by mental health professionals, which “took
quite a while,” and then the State had the defendant evaluated. Also, in its findings at the
hearing on the motion, the court discussed how there was a great number of criminal cases
in the Davidson County courts and lack of resources and explained that it had chosen to
continue the case from the original trial date in order to hear an older case.

Therefore, the evidence before us suggests that the delay was attributable to a variety
of reasons. Part of the delay was apparently due to the evaluation to determine the
defendant’s competency to stand trial and mental condition at the time of the crimes, which
should not weigh against either party as such was “necessary to the fair and effective
prosecution of the case.” See State v. Paul Graham Manning, No.
M2002-00547-CCA-R3-CD, 2003 WL 354510, at *9 (Tenn. Crim. App. Feb. 14, 2003),
perm. app. denied (Tenn. Dec. 15, 2003). Part of the delay was also apparently due to the
defendant’s seeking a mental evaluation, which falls into the category of delay caused or
acquiesced in by the defendant and thus weighing against a speedy trial claim, or at least
weighing neutrally. Part of the delay was also due to the overcrowded court dockets, which
the Tennessee Supreme Court observed in a footnote in Wood falls into the category of
“bureaucratic indifference or negligence” and weighs against the State but not as heavily as
deliberate delay. See Wood, 924 S.W.2d at 346-47 n.10. Balancing the various reasons for
the delay, we conclude that the second Barker factor does not weigh for or against either
party.

The third factor to consider when conducting a Barker test is whether the defendant
asserted his right to a speedy trial. Barker, 407 U.S. at 531-32. Assertion of the right
strongly weighs in favor of the defendant, while failure to assert the right ordinarily will
make it difficult to prove that the right has been denied. Id. Here, the defendant filed a
motion to dismiss for lack of a speedy trial on December 8, 2011. Therefore, this factor
weighs in the defendant’s favor. However, the delay prior to the defendant’s filing this
motion was necessary, rational, and, in some regards, attributable to the defendant.
Moreover, once the trial court heard the defendant’s motion, it ruled that the defendant’s case
would be heard at its next trial date and the case commenced as scheduled within five months
of the hearing.

The final and most important factor in the Barker analysis is whether the accused has
suffered prejudice from the delay. Barker, 407 U.S. at 532. When evaluating this factor,

-14-
courts must be aware that the right to a speedy trial is designed (1) to prevent undue and
oppressive incarceration prior to trial, (2) to minimize anxiety and concern accompanying
public accusation, and (3) to limit the possibilities that long delay will impair the defense.
Bishop, 493 S.W.2d at 85; see Smith v. Hooey, 393 U.S. 374, 378 (1969).

The defendant argues on appeal that “[t]he state’s witnesses had to rely on their
memories of events which happened two years ago, memories which, after that length of
time, could hardly be called reliable.” However, there is no showing in the record that any
witness suffered a loss of memory due to the passage of time, died, or became otherwise
unavailable, or that the delay impeded the defendant’s ability to defend himself. The
defendant, in essence, seeks a per se rule of dismissal when there is a delay of two years, but
such rule is not supported by case law. See Bishop, 493 S.W.2d at 85. We conclude that the
record fully supports the trial court’s finding that the defendant was not “prejudiced in any
way” by the delay in trying the case.

After applying the Barker balancing test, we conclude that the trial court did not abuse
its discretion in denying the defendant’s motion to dismiss due to a speedy trial violation.
Therefore, the defendant is without relief as to this issue.

The defendant also argues that dismissal is appropriate under Tennessee Rule of
Criminal Procedure 48(b). Rule 48(b) of the Tennessee Rules of Criminal Procedure
provides that the trial court may dismiss the indictment “[i]f there is unnecessary delay in
presenting the charge to a grand jury against a defendant who has been held to answer to the
trial court, or if there is unnecessary delay in bringing a defendant to trial.” “The decision
whether to dismiss an indictment lies within the discretion of the trial court.” State v. Harris,
33 S.W.3d 767, 769 (Tenn. 2000) (citing State v. Benn, 713 S.W.2d 308, 311 (Tenn. 1986)).
In Benn, the supreme court articulated the analysis required before a trial court may dismiss
an indictment under Tennessee Rule of Criminal Procedure 48(b) when the delay falls short
of constitutional proportions as follows:

The factors to be considered in passing on a motion to dismiss under
Rule 48(b) where there has been no constitutional violation are the length of
the delay, the reasons for the delay, the prejudice to defendant, and waiver by
the defendant. Of course, these are the same factors that determine a speedy
trial constitutional violation, except for the factor of a defendant’s assertion of
his right to a speedy trial.

Id. at 311.

We conclude that dismissal of the defendant’s case under Rule 48(b) is inappropriate

-15-
for the same reasons detailed above in our Barker analysis. The length of the delay, while
not minimal, was hardly extreme. The reasons for the delay were attributable to mental
health evaluations of the defendant and overcrowded court dockets, and there was no
showing of prejudice to the defendant.

II. Hearsay

The defendant next argues that the trial court erred in admitting hearsay statements
of Sammy Sabino.

Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). As a general rule, hearsay is not admissible at trial unless it falls under one of the
exceptions to the rule against hearsay. Tenn. R. Evid. 802. One such exception is the state
of mind exception, which provides for the admission of a “declarant’s then existing state of
mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain, and bodily health).” Tenn. R. Evid. 803(3). “[Q]uestions concerning the
admissibility of evidence rest within the sound discretion of the trial court, and this Court
will not interfere in the absence of abuse appearing on the face of the record.” Pylant v.
State, 263 S.W.3d 854, 870 (Tenn. 2008).

When the State called Sabino to the stand, the defense lodged a hearsay objection to
Sabino’s expected testimony that the victim told him that he was going to pick up his
roommate. The State acknowledged that the statement was hearsay but argued that it was
admissible under Tennessee Rule of Evidence 803(3), an exception for the declarant’s
“existing mental, emotional, or physical condition.” The court asked the State to call Sabino
out of order so the issue could be researched and resolved at a later time. Thereafter, the
court ruled that Sabino’s expected testimony was admissible.

During Sabino’s testimony, the defense objected as Sabino was getting ready to testify
as to what the victim told him as to why he was still at work. The court ruled that Sabino
could answer that particular question, and the State questioned Sabino as follows:

Q: Mr. Sabino, did [the victim] tell you that he was going to go to a Kroger
store later on that evening to meet with an individual?

A: Yes.

Q: And that he was staying at work until that person came on shift before
he went to that Kroger store?

-16-
 A: Yes.

Q: Did [the victim] . . . also tell you that he was going to be picking up a
roommate in Gallatin later on that evening?

A: Yes.

Q: Did [the victim] identify the name of that roommate?

A: No.

The defendant concedes that Sabino’s testimony “appears to fall within the exception
provided by Tenn. R. Evid. 803(3)” but asserts that “upon closer scrutiny, it does not bear
sufficient specificity, and is too ambiguous to be acceptable under that provision.” He points
to the fact that the victim could have been meeting either of his two roommates and that there
was no evidence that the victim actually traveled to Gallatin. The statement clearly exhibits
the victim’s then existing state of mind – his intent and plan to meet someone at Kroger and
then pick up his roommate in Gallatin, and the supporting evidence provides context for the
victim’s statement. The defendant’s complaints regarding Sabino’s testimony go to its
weight and not admissibility. Any ambiguity in the victim’s statement concerning his plan
could have actually benefitted the defendant by allowing him to argue that the victim was
meeting William Deng and not him. Moreover, even though there was no evidence that the
victim traveled to Gallatin, the jury could have easily determined that the victim was
referring to the area around Gallatin Pike in Nashville, not the actual town of Gallatin. We
cannot conclude that the trial court abused its discretion in admitting Sabino’s testimony
under the state of mind exception to the hearsay rule.

III. Sufficiency of the Evidence

The defendant challenges the sufficiency of the convicting evidence. He does not
dispute that the elements of the offenses were established, only the sufficiency of the
evidence establishing his identity as the perpetrator. He asserts that all of the evidence was
circumstantial, and no physical evidence directly linked him to the crimes.

In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing 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) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is

-17-
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992). The same standard applies whether the finding of guilt is
predicated upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

A criminal offense may be established entirely by circumstantial evidence. State v.
Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight to be
given the circumstantial evidence and the extent to which the circumstances are consistent
with the guilt of the defendant and inconsistent with his innocence. State v. James, 315
S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty to exclude every
other reasonable hypothesis except that of the defendant’s guilt in order to obtain a
conviction based solely on circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370,
380-81 (Tenn. 2011) (adopting the federal standard of review for cases in which the evidence
is entirely circumstantial).

All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In the light most favorable to the State, the evidence shows that the defendant had
been unemployed for a long period of time, was in debt, and was sending money to family
in Africa. In the two weeks leading up to the victim’s murder, the defendant wrote six

-18-
checks to himself from the victim’s bank account. The defendant claimed that the checks
were in repayment for money he had loaned the victim, but the jury was within its province
to not believe the defendant’s explanation. Despite his obviously knowing that the victim
had a bank account, the defendant initially denied any such knowledge to the police.

The defendant knew that the victim had a steady job and also sold calling cards as a
side business. About three weeks before the murder, the defendant looked at guns in a
pawnshop. William Deng, the victim’s and the defendant’s roommate, had his gun stolen
from his vehicle approximately a week before the murder. There were no signs of forced
entry into Deng’s vehicle, and Deng often left his keys on the kitchen table in their
apartment. The evidence strongly supports the inference that Deng’s weapon was used in the
murder, as Independence brand shells were found by the victim’s body and a spent casing
recovered from the victim’s car was also Independence brand. Independence was the brand
Deng kept with the gun, and Officer Evans noted that Independence brand was not often seen
in the Nashville area.

The defendant’s repeated contention that he was playing cards in Antioch on the night
of the murder was refuted by his cell phone records and by the testimony of the two
witnesses, Paul Remijo and Dennis Ogwang, he claimed to be with. The defendant
essentially asked Ogwang on two occasions, one of which while Ogwang was on speaker
phone with the police, to lie to the police concerning the defendant’s whereabouts on the
night of the murder.

The defendant’s initial claim that he had not spoken to the victim on the night of the
murder was discounted by both men’s cell phone records and the defendant’s later admission.
Although the defendant claimed that they were talking about an election in Sudan, the
victim’s statement, as reported by Sammy Sabino, that he was picking up his roommate in
Gallatin gives context to these phone conversations.

Later in the day of the murder, the driver of a car matching the description of the
defendant’s car was seen throwing a red jacket with the victim’s blood on it into a ditch on
DeMoss Road, near the defendant’s apartment. The next day, an officer on the scene was
talking to Yvonne Claybrooks, a resident of DeMoss Road, when Claybrooks saw the same
car drive by again. The officer was able to see the driver, whom he identified as the
defendant. The following day, Claybrooks saw a man wearing flip-flops, whom she later
identified from a photographic array as the defendant, walk up and down the street searching
in the ditch.

Upon review, we conclude that this evidence, albeit circumstantial, is sufficient for
a rational trier of fact to find that the defendant was the perpetrator of the offenses.

-19-
 CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.

_________________________________
ALAN E. GLENN, JUDGE

-20-