D. KELLY THOMAS, Jr., J.
The Defendant, Ramone Lawson, was convicted by a jury of one count of first degree premeditated murder, two counts of attempted first degree murder, and two counts of employing a firearm during the commission of a dangerous felony. The Defendant was sentenced to an effective sentence of life imprisonment plus six years. In this direct appeal, the Defendant argues that the evidence is insufficient to support his convictions and that the trial court erred when it instructed the jury about the possible sentences and release eligibility dates for first degree murder. Finding no reversible error, we affirm the judgments of the trial court.
This case arises from a June 30, 2011 shooting spree in Fox Hollow Apartments in Memphis. From these events, a Shelby County grand jury charged the Defendant with first degree premeditated murder of Martezz Evans, attempted first degree murder of Tristan Mathis, attempted first degree murder of Aaron Wiggins, and two counts of employing a firearm during the commission of a dangerous felony.
The proof at trial revealed the following facts. On June 30, 2011, the three victims went to Fox Hollow Apartments to visit some girls. While waiting for the females to finish dressing, the group decided to go outside and sit on a green electrical box. Destiny Wright, who lived in the apartment complex, walked by and saw the men sitting there. Because she was unfamiliar with the men, she asked them who they were and where they lived. The men "brush[ed] her off." At that time, the group saw an individual named "Rico"
Soon thereafter, the Defendant came from behind a wall. No words were exchanged between the men, other than the Defendant saying to the victims, "yea nigga now what's up?", before he started shooting with a forty-caliber automatic pistol. An individual named "Skinny G" was also present on the scene. When the shooting started, all three of the victims jumped up off the electrical box. Mathis and Wiggins were able to run away from the Defendant. However, Evans, who was closest to the Defendant when the Defendant emerged from behind the wall, "threw his hands up" in the air. Evans was then shot three times, once in the left eye, once in the left forearm, and once in the back of neck, and he fell to the ground, where he died from his injuries. The Defendant emptied his weapon, running out of bullets before he ceased firing on the group. Six forty-caliber shell casings, one bullet fragment, and one projectile were found on the scene. Although Mathis was able to run away, he suffered a gunshot wound to the foot; Wiggins stated that his right forearm was grazed by a bullet.
Ms. Wright provided a description of the shooter that was similar to the Defendant's appearance. Wiggins and Mathis also identified the Defendant as the lone shooter. After the Defendant was developed as a suspect and brought in for questioning by the police, he admitted to being present at the scene but denied any involvement. While in custody, the Defendant placed a phone call from the jail. During this call, the Defendant can be heard saying to the other individual on the line, "what they got me for is true." When the Defendant was questioned the following day for a second time, he again denied any involvement in the shooting.
The State developed proof of a prior altercation which occurred some days earlier at a local Citgo gas station. Evans, Mathis, and Wiggins were at that gas station, when Evans and Skinny G got into a verbal disagreement. Rico then walked up and said, "What's up, Mafia?" On this day, Evans and Mathis ended up in a physical confrontation with Skinny G and Rico. According to Mathis, he and Evans "got the best of" Rico and Skinny G during the fight. Moreover, there was also proof at trial that Rico and Evans were members of rival gangs.
Following the conclusion of proof, the jury convicted the Defendant as charged. At the sentencing hearing which followed, the trial court sentenced the Defendant to life imprisonment with the possibility of parole for the first degree murder conviction, fifteen years for each attempted murder conviction, and six years for each employing a firearm during the commission of a dangerous felony conviction. The murder and attempted murder sentences were ordered to be served concurrently to one another, and the armed dangerous felony sentences were likewise to be served concurrently to one another. However, the trial court ran the two groups of sentences consecutively to each other, resulting in an effective sentence of life plus six years. This timely appeal followed.
On appeal, the Defendant challenges the sufficiency of the evidence and the trial court's instructions to the jury on the possible sentences and release eligibility dates for first degree murder. We address each in turn.
First, the Defendant challenges the sufficiency of the evidence supporting his convictions for first degree premeditated murder and attempted first degree murder,
An appellate court's standard of review when a defendant questions the sufficiency of the evidence on appeal is "whether, after viewing the evidence in the light most favorable to the prosecution,
A guilty verdict "removes the presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the evidence is insufficient to support the jury's verdict."
First degree murder, in this instance, is defined as "[a] premeditated and intentional killing of another." Tenn. Code Ann. § 39-13-202(a)(1). A person acts intentionally "when it is the person's conscious objective or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-302(a).
Tenn. Code Ann. § 39-13-202(d). Criminal attempt, as charged to the jury in this case, occurs when a person acts with the kind of culpability otherwise required for the attempted offense and "[a]cts with intent to complete a course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense."
The element of premeditation is a factual question to be decided by a jury from all the circumstances surrounding the killing.
The Defendant contends that the State failed to establish any motive for the killing and, therefore, failed to establish premeditation. The Defendant fails to take into account the evidence of the individuals' gang affiliation which established a possible motive for the shooting spree, i.e., retaliation for the prior altercation at the Citgo gas station. Moreover, motive is not the only factor sufficient to establish premeditation. The proof further reflected that the victims were unarmed; that there was no evidence of provocation on the day of the shooting, in fact, one of the victims put his hands in the air as a sign of surrender; and that the Defendant fired multiple times, emptying his weapon. Given this evidence, we conclude that it was reasonable for the jury to find that such actions evinced a premeditated intent to kill the victims.
Next, the Defendant argues that the trial court "erred in instructing the jury on the penalty and release eligibility for first degree murder." The Defendant notes that he raised the issue in his motion for new trial but failed to contemporaneously object to the erroneous instructions at trial. He asks this court to grant him plain error relief and order a new trial. The State responds that the Defendant has failed to establish all five plain error factors and is, therefore, not entitled to relief.
Rule 30(b) of the Tennessee Rules of Criminal Procedure provides that failure to make an objection to the content of an instruction "does not prejudice the right of a party to assign the basis of the objection as error in a motion for a new trial." Tenn. R. Crim. P. 30(b). An erroneous or inaccurate jury charge, as opposed to an incomplete jury charge, may be raised for the first time in a motion for a new trial and is not waived by the failure to make a contemporaneous objection.
The Defendant submits that the "offensive instruction in this case was given six times." He notes the following "three times" during the voir dire examination of the entire venire:
He submits that the error occurred "twice" in the trial court's final instructions to the jury, when the court gave the following instruction:
The first paragraph of this final charge was also included in the written instructions, being the sixth instance to which the Defendant refers.
At the motion for new trial hearing, the trial court addressed the Defendant's allegation of erroneous jury instructions and ruled as follows:
We must disagree with the trial court and conclude that its remarks to the prospective jurors and the later instruction to the jury about the penalties for first degree murder were in error. The pertinent statute on the subject provides,
Tenn. Code Ann. § 40-35-201(b). Nonetheless, as the State points out, this court has reviewed similar fact patterns on several prior occasions and found that the statements were harmless.
In
Despite the Defendant's attempt to distinguish his case from this line of jurisprudence, submitting that his jury was "fairly bludgeoned with the erroneous" instruction due to the instances cited above, we conclude that the case before us warrants a similar conclusion as those that have come before. The trial court instructed the jury on first degree premeditated murder, attempted first degree murder, second degree murder, attempted second degree murder, voluntary manslaughter, attempted voluntary manslaughter, reckless homicide, and criminally negligent homicide. The State's proof was that the Defendant attacked the unarmed victims with an automatic weapon. The Defendant was accompanied by Rico, who had recently been beaten up by the victims at the Citgo gas station. Rico and the victim Evans were identified as being members of rival gangs. The Defendant emerged from behind a wall and unloaded the weapon, shooting at the victims multiple times, and only ceased firing when he ran out of bullets. Evans raised his hands as a sign of surrender, and the other two victims fled. The Defendant shot Evans in the face, arm, and back of the neck, killing him; he shot Mathis in the foot and grazed Wiggins on the forearm. The proof was more than sufficient to support the jury's verdicts of guilt. The record contains no proof that the jury would have convicted the Defendant of any of the lesser included offenses, or acquitted him, had the challenged information not been provided. Because the trial court's error in instructing the jury about the penalties for first degree murder does not affirmatively appear to have affected the result of the trial on the merits, the Defendant is not entitled to a new trial on this ground. This issue is without merit.
In consideration of the foregoing and the record as a whole, we affirm the Defendant's convictions.