State v. Lumpkins, No. W2005-02805-CCA-R3-CD (Tenn. Crim. App. 6/7/2007)

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STATE OF TENNESSEE v. ERIC LUMPKINS.

No. W2005-02805-CCA-R3-CD.

Court of Criminal Appeals of Tennessee, at Jackson.

November 7, 2006 Session.

Filed June 7, 2007.

Appeal from the Criminal Court for Shelby County; No. 03-08391; W. Mark Ward, Judge.

Judgments of the Criminal Court are Affirmed.

Thomas E. Hansom, Memphis, Tennessee (at trial); and William D. Massey, Memphis, Tennessee (on appeal), for the Appellant, Eric Lumpkins.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General, for the Appellee, State of Tennessee.

James Curwood Witt, Jr., J., delivered the opinion of the court, in which Jerry L. Smith and Robert W. Wedemeyer, JJ., joined.

OPINION

JAMES CURWOOD WITT, JR., JUDGE.

The defendant, Eric Lumpkins, appeals from his Shelby County Criminal Court jury convictions of first degree murder, attempt to commit first degree murder, and two counts of aggravated assault. He challenges the sufficiency of the convicting evidence, the selection of the trial jury, the admission and exclusion of evidence, prosecutorial remarks made during closing argument, and his aggregate sentence of life plus ten years. We hold, inter alia, that the convicting evidence is legally sufficient and, in so holding, decline to apply the physical facts rule, and we hold that consecutive sentencing may be imposed by the trial judge without the participation of a jury. We affirm the judgments of the trial court.

The defendant's convictions resulted from a July 19, 2003 shooting on Speed Street in Memphis.

The evidence supporting the convictions showed that Emma Thelma Tatum, the homicide victim (referred to hereafter as the "victim"), lived on Speed Street next door to Jerry Lumpkins, the defendant's father. The victim's sons, Leland Tatum and Bishop Tatum, lived in a duplex-type dwelling across Speed Street from Jerry Lumpkins. Bishop Tatum and Jerry Lumpkins had had a frictional relationship for about two years, but none of the Tatums had previously experienced any difficulties with the defendant, Jerry Lumpkins' son.

Between 7:30 p.m. and 8:00 p.m. on the evening of July 19, 2003, while the Tatum brothers were on their front porch, the defendant, who was on his father's front porch, began taunting Bishop Tatum to fight. Leland Tatum prompted Bishop Tatum to ignore the defendant, but the defendant left his father's porch, crossed the street, and started up the steps to the Tatums' duplex. Leland Tatum told the defendant to return to his father's house, and the defendant's father, Jerry Lumpkins, came across the street to collect his son and take him back to the Lumpkins' house.

Leland Tatum testified that he told Bishop Tatum to call the police. The victim crossed the street from her home to her sons' porch, and Essie Tatum, Leland Tatum's wife, came out of Leland Tatum's side of the duplex onto the porch as well. Some of the Tatums heard Jerry Lumpkins ask one of his friends, a man named "Johnson," to drive the defendant to the house on Olympic Street that the defendant occupied with his girlfriend. The friend drove away in a red car with the defendant as a passenger. Following their departure, a police officer arrived, talked to the Tatums, learned that the defendant had departed, and after about ten minutes, the officer drove away.

Leland Tatum testified that, shortly after the officer left, Jerry Lumpkins stood outside his house talking on a portable or cellular telephone. Leland Tatum testified that he overheard Jerry Lumpkins say into the telephone, "[G]o get your gun." Bishop Tatum testified that he heard Jerry Lumpkins say into the telephone, "[K]ill everybody on the porch."

Within a few minutes, the red car reappeared on Speed Street and headed southerly toward the parties' houses; the Lumpkins' house would be on the driver side and the Tatum brothers' house on the passenger side. Both Tatum brothers testified that daylight still prevailed and that they could clearly see the defendant point and fire a pistol from the passenger window of the red car in the direction of the Tatums' porch, which was then occupied by the two brothers, the victim, and Essie Tatum. The Tatums scrambled to get inside the duplex units. As the car moved slowly down the street and past the Tatum duplex, the defendant fired a total of five shots, the fourth of which struck the victim in the right buttock as she was "pushing" Bishop Tatum into the dwelling. Bishop Tatum testified that the victim was "still standing" when she got shot and that she bent over after she was shot. The Tatum brothers both testified that the car turned at the next corner and stopped; from that location, the defendant fired a sixth shot toward the Tatums' porch. All three of the surviving Tatums testified that none of them possessed a gun during the evening of July 19, 2003.

Harry Johnson testified that on the evening of July 19, 2003, he drove a red, four-door Oldsmobile Cutlass to Speed Street to visit some relatives. He parked near the residence of Jerry Lumpkins. He had known Jerry Lumpkins for many years, since they attended school together. Mr. Johnson testified that Jerry Lumpkins asked him to drive the defendant home, and Mr. Johnson took the defendant to a house on Olympic Street. After the defendant went inside the house and before Mr. Johnson could pull away, a girl came out and told Mr. Johnson that the defendant had forgotten something and needed a ride back to his father's house. The defendant got into Mr. Johnson's front passenger seat and fully reclined the seat. Mr. Johnson neither saw a gun nor suspected that the defendant had one. The defendant seemed "tense" and "stressed out." When they arrived on Speed Street and Mr. Johnson prepared to back into a parking space near the Lumpkins and Tatum houses, the defendant sat up and told him not to bother with parking. Mr. Johnson testified that "gunfire erupted." He did not initially perceive from where the gunfire came. He testified, "I ducked . . . [b]ecause I'm scared from my experiences in Vietnam." He realized the defendant was firing a gun after the defendant had fired about five times and pulled a large-caliber, blue-steel revolver with a six-inch barrel back inside the car. The defendant then grabbed the steering wheel and pressed his foot on the accelerator, saying "Pull off fool." Mr. Johnson testified that the defendant assumed control of the vehicle and drove it back to Olympic Street, where before getting out of the vehicle, the defendant told Mr. Johnson, "You don't know nothing and don't want to know nothing." Mr. Johnson testified that he had not been charged with any offenses.

The parties stipulated that the victim died on September 13, 2003, as a result of a gunshot wound she sustained in her pelvis on July 19, 2003. Doctor O. C. Smith, the Shelby County medical examiner, testified to the same effect. He elaborated that the bullet entered the victim's right buttock and lodged in her left hip joint, breaking the joint. He explained that had the bullet entered the victim's body when she was standing erect on both feet, its relative line of travel through her body was from right to left, back to front, and down from the point of entry to the left hip joint. Doctor Smith stated that too many unknown variables prevented him from opining whether the gun must have been fired from an elevation higher than the victim's entry wound. The doctor acknowledged that the bullet could have first struck an inanimate object and deflected into the victim's body.¹

On cross-examination, however, Dr. Smith agreed with defense counsel that unless a bullet's energy was nearly expended, its path would not "normally" be altered as it traveled through human tissue, and in the victim's case, the bullet was not near the "end of its travel" when it struck the victim, as indicated by the fracture to the left hip joint. Doctor Smith also agreed that a hypothetical involving the victim's wound as described in his testimony, her location on a porch above the street, and a shot fired from the street was "difficult to resolve." He added that, if the victim were standing erect when she was shot, the path of the bullet through her body would be more easily "achieved" if the gun were positioned at the altitude of or above the entry wound.

Nevertheless, he testified that this latter hypothetical or explanation was "one amongst several that could explain the path of the wound through the body." The doctor opined that permutations in the positioning of the victim's body, such as her being "canted over" to the rear, having a leg off the ground, or her crawling with her feet angled away from the shooter could reconcile the victim's wound with a shot from the street below her. He stated that he could not discern within any degree of medical certainty the "position or what level the shooter must have been for [the victim] to sustain that wound."

The defendant neither testified nor offered any other direct evidence. The jury convicted him of the premeditated first degree murder of the victim, of attempt to commit the first degree murder of Bishop Tatum, and of the aggravated assaults of Leland Tatum and Essie Tatum. The jury imposed a life sentence in the homicide, and the trial court imposed a sentence of 23 years for the attempted homicide, to run concurrently with the life sentence. It imposed sentences of five years for both of the aggravated assaults, to run consecutively to each other and to the effective life sentence. The arrangement yielded an effective sentence of life plus ten years.

I. Sufficiency of the Evidence

In his first issue, the defendant claims that the evidence is insufficient to support the convictions. He argues that the path of the gunshot wound through the body and the evidence that illustrates that the victim was "upright" when she was shot belie...