IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1998 SESSION
October 2, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. 03C01-9707-CR-00325
) HAMILTON COUNTY
)
Appellee, ) Hon. Stephen M. Bevil, Judge
)
vs. ) (FIRST-DEGREE MURDER)
) No. 203997
STEVEN TOLBERT, )
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
A. CHRISTIAN LANIER, III JOHN KNOX WALKUP
615 Lindsay Street, Suite 150 Attorney General & Reporter
Chattanooga, TN 37402
ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM H. COX, III
District Attorney General
THOMAS J. EVANS
Assistant District Attorney General
600 Market Street - Courts Bldg.
Chattanooga, TN 37402
OPINION FILED:_______________
AFFIRMED
CORNELIA A. CLARK
Special Judge
OPINION
The defendant was indicted for first-degree premeditated murder
and was convicted of that offense by a jury. He was subsequently sentenced
to life imprisonment. He now appeals as of right from his conviction and raises
the following issues for review:
(1) sufficiency of the evidence;
(2) exclusion of certain testimony concerning the victim's alleged
propensity for violence;
(3) admission of the E-911 audio tape;
(4) allowing the State to question him regarding his prior incarceration;
(5) use of improper jury instructions;
(6) failure to sequester the jury;
(7) ineffective assistance of counsel; and
(8) exclusion of evidence that the victim had used marijuana.
Upon our review of the record, we affirm the conviction.
FACTS
Defendant Steven Tolbert awoke about noon on September 7,
1994. He telephoned his friend, Michael Smith, to come over to his house and
go with him to have repair work done on the radio in his Maxima automobile.
When defendant and Smith arrived at Penguin’s Repair Shop in Cleveland,
Tennessee, Smith looked at several radios while the defendant went to the
department where speakers were installed. At that time the defendant
removed his CD case from the car to ensure that none would be stolen while
the repair work was being done. While reaching for the CD case he noticed
that his gun case was in the backseat of the automobile. Because he was
concerned that workers would be going through his car and might find the gun
and have him arrested for possession of a weapon, he took the gun with him.
Defendant left his Maxima automobile at the repair shop. He and
Smith left in defendant’s other car, a Ford Probe. Smith was driving. Because
the defendant needed to get additional money because the sound system he
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had selected cost more than he had anticipated, the two men decided to drive
to Chattanooga to see one of defendant’s girlfriends and ask for funds to pay
for the sound system. According to the defendant, he had checked inside the
gun case while riding to Chattanooga and determined that the clip was
missing. As in the past, he had allowed his roommate, Jeff Pierce, to take the
gun to a gun range earlier that morning. He assumed that Pierce had put the
clip elsewhere.
Defendant and Smith reached Chattanooga, visited the girlfriend
and got the necessary funds. The two men then headed back toward
Cleveland. At about 2:00 p.m. they came to a stop at a traffic light. At the
same time the victim, Todd Hughes, was driving another automobile
accompanied by his brother, Torey. The Hughes car was going in the opposite
direction. Defendant, who knew the Hughes brothers, reached over, blew the
horn of his car, motioned to Hughes, and yelled to him. At that time the
defendant's car turned around and followed the Hughes car into the parking lot
at Frank’s Market. Defendant testified that the victim had motioned for him to
follow his car. Torey Hughes testified that, once the defendant's car was
behind them, Todd had “pointed like we're going to go to Frank's Grocery
Store.” Defendant further testified that he had thought Hughes might have
some money to repay a debt that he owed to defendant. The exchange that
happened next was strongly contested at trial.
According to Torey Hughes, the victim’s brother, the defendant’s
car had immediately blocked the Hughes car in the parking lot. Todd got out
and walked toward the defendant’s car in a non-threatening manner. Torey
testified that Todd had been wearing trousers, but not a shirt, and that it was
clear that he did not have a weapon. Torey further testified that the defendant
had gotten out of his car and immediately said to Todd “Where is my money
at?” The men began to argue. Todd said “I don’t have your money. What you
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gonna do, whip my ass?” Todd then said “I’m through with it” and the
defendant responded “I was going to get you.” Todd turned and started to
walk toward the store. Defendant opened his car door, reached in and took
out a gun that was on the front floorboard. According to Torey, the gun had
not been in a case, but was “ready to go” and there was a clip in it. Torey then
called out to his brother, “He's got a gun.” Todd turned to face the defendant,
at which point the defendant shot him once in the chest. According to Dr.
Charles Harlan, who had performed the autopsy on the victim, the barrel of the
gun had been no more than two feet away from Todd. The wound ultimately
killed the victim.
Reginald Duane Kitchens testified that he had been at a tire
alignment store near Frank's Market when he saw and heard the victim and the
defendant arguing. He testified that the victim had told the defendant “he
couldn't whip him” and that the victim had then turned to walk away. The
defendant had then said, “I was going to get you,” and, according to Kitchens,
“reached in the car and got the gun and aimed it up like this and shot him.”
Kitchens said that the gun had had “a long clip in the bottom of it.”
The defendant testified that when he had pulled into Frank’s
Market behind Hughes, he told Smith that he wanted to “chitchat“ with Hughes.
He got out of his car, shut his door and went to greet Hughes as usual.
Defendant testified that Hughes had not come up to him in a normal manner,
so he backed up and leaned against his car. Defendant testified that he had
thought that he had caught Hughes on a bad day and that he might have a
chip on his shoulder. When Hughes did not act pleasant to him, defendant
said “What’s up, man? W hat you up to?” Hughes responded “Shit.”
Defendant then said “Can I get a little change on that money you owe me?”
The victim replied “No, I ain’t giving you nothing. I done more for you than your
family and I am tired of you, you asking about that money, and furthermore if
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you want your money, take it.” Defendant testified that he had responded,
“Man, damn, man, why you coming off on me like that? Why you talking to me
like that? You know we never had a fuss before about nothing. We didn’t
have a fuss when I loaned you the money, so why is we having a fuss and fight
right now for me to receive some of my money back?” Defendant testified that
the victim had then said “You heard what I said. And I got something for you
that will stop you from asking me for that money.” By that time the victim’s
brother Torey Hughes had exited their car and Mike Smith had gotten out of
defendant’s car. The four men faced each other. The victim then said “Wait a
minute” and turned around to go to his car. Defendant testified that he had
thought Todd Hughes was going for his gun, which defendant knew to be a
Glock 9 millimeter. Defendant also knew that the Hughes family owned a
pawn shop which carried various weapons and ammunition. Defendant
claimed to be aware of a number of incidents in which the victim had used a
gun toward others in a dispute and testified that the victim had once invited
him to assist with a drive-by revenge shooting. Because of his fear of what the
victim might do as he headed for his own car, defendant testified, he had
reached into his car, opened the gun case, took hold of his 9 mm. gun, placed
his finger on the trigger and “turned around so quickly in a jerking motion and
the gun went off.” His “jerking motion” caused the gun to go off because the
Tec-9 had an “easy” trigger. He testified that he had “never intended to shoot
[Hughes]” and that when the gun went off, he “was in shock.” He further
testified that the clip had not been in the gun and that he had not known
whether it was (otherwise) loaded.
After the shooting defendant and Smith left immediately and
headed back to Cleveland. According to Smith, defendant was nervous, upset
and frightened about what had happened. W hen they arrived back in
Cleveland the defendant threw the gun into a pond, from which it was never
recovered. Smith then took defendant to Penguin’s. They hugged each other
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and Smith testified that he had then left to turn himself in at the Bradley County
justice system. However, he had a wreck on the way to the justice center.
When police arrived to investigate the wreck he told them that there was
something he needed to say, and went on to explain what had happened.
Defendant picked up his car at Penguin’s, went to Lorraine Thompson’s home,
and spent the night. During the evening he telephoned several people, trying
to explain to them what had happened. He told one, Velisa Looney, that he
had not meant to shoot Todd Hughes. Ms. Looney used her caller ID to
provide information to the authorities about defendant’s whereabouts. He was
apprehended by the S.W.A.T. team the next day. He did not resist arrest.
Other witnesses testified that the defendant had called them after
the shooting. According to Miranda Phelps, the victim’s fiancé, he had told her
“I had to [do it], I had to take care of it.” Two weeks before the shooting, the
defendant had told several people he was going to kill the victim. Torey
Hughes testified that the victim had even acknowledged as he turned into
Frank’s Grocery that he knew the defendant was going to kill him because of
the money owed. The defendant denied these allegations.
Dr. Frank King, coroner, testified that a toxicology examination
had been performed on the victim. His blood alcohol test and blood drug
screen were negative. However, his urine drug screen was positive for
marijuana. Dr. King characterized the amount of marijuana as a “generous
recreational” level and testified that the effects upon a person would include
“some sedation, some euphoria or happiness.” Other effects might include
distortion of time, place, hearing, or impairment of judgment and confusion.
He also stated that the level of marijuana could make an angry person angrier.
SUFFICIENCY OF THE EVIDENCE
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Defendant first contends that the evidence was insufficient to
support his conviction. He asserts in particular that the evidence of
premeditation and deliberation was insufficient.
On appeal, of course, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which might be
drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
When an accused challenges the sufficiency of the convicting evidence, the
standard is whether, after reviewing 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Questions concerning
the credibility of the witnesses, the weight and value to be given the evidence,
as well as all factual issues raised by the evidence, are resolved by the trier of
fact, not this Court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). Nor may this Court reweigh or reevaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
At the time this offense was committed, first-degree murder was
defined as “[a]n intentional, premeditated and deliberate killing of another.”
Tenn. Code Ann. §39-13-202(a)(1) (Supp. 1994) (repealed July 1, 1995).
Premeditation required a previously formed design or intent to kill. State v.
West, 844 S.W.2d 144, 147 (Tenn. 1992). Deliberation was defined at the
time as cool purpose, when a killing is other than one made in a momentary
state of passion. Id. Some period of reflection, “during which the mind is