State of Tennessee v. Kevin D. Buford ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 7, 2011
STATE OF TENNESSEE v. KEVIN D. BUFORD
Direct Appeal from the Criminal Court for Davidson County
No. 2008-B-1355 Randall L. Wyatt, Jr., Judge
No. M2010-02160-CCA-R3-CD - Filed December 28, 2011
A Davidson County jury convicted the Defendant, Kevin D. Buford, of felony murder and
attempted especially aggravated robbery. The trial court imposed concurrent sentences of
life for the felony murder conviction and ten years for the attempted especially
aggravated robbery conviction. On appeal, the Defendant asserts that there is insufficient
evidence to support his convictions. After a thorough review of the record and applicable
law, we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right ; Judgments of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and D. K ELLY T HOMAS, J R., JJ., joined.
Jeremy W. Parham, Nashville, Tennessee, for the appellant, Kevin D. Buford.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; Kathy Morante and
Amy H. Eisenbeck, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
I. Facts
A Davidson County Grand jury indicted the Defendant for felony murder and
attempted especially aggravated robbery for his participation in the robbery and murder of
Billy Jack Shane Tuders. At a trial on these charges, the parties presented the following
evidence: Janice Tuders, the victim’s mother, testified that her son was thirty-three years
old and the father of two children at the time of his death. Tuders connected her son to
the location of the murder in this case by saying that he worked at a Jiffy Lube which was
connected to a car wash on Clarksville Pike. Tuders recalled that the victim was paid in
cash and normally made seventy dollars a day. She said the victim often went to the gas
station market near his work to purchase items, and, “every once and awhile,” he
purchased lottery tickets. Tuders recalled that, in the winter months, the victim wore a
toboggan cap.
Eric Richardson, a Metropolitan Nashville Police Department officer, testified that
on January 21, 2008, he responded to a crime scene at a gas station on Clarksville Pike.
Upon arrival, Officer Richardson found police officers attending to the victim on the back
side of the car wash, so he began to survey the area to determine the parameters of the
crime scene. In the front parking lot area, between the gas station and the car wash,
Officer Richardson found a spent shell casing and “some money.”
Norris Tarkington, a Metropolitan Nashville Police Department detective, testified
that he reported to the scene of a murder on January 21, 2008, on Clarksville Pike. There,
Detective Tarkington observed a nine-millimeter shell casing near the front door to the
car wash. He also observed a twenty dollar bill and, sitting on top of the twenty dollar
bill “as if to keep it from blowing in the wind,” a lottery ticket and blood drops. A black
toboggan cap was also found behind the Jiffy Lube located next door to the car wash.
Donna Jones testified that she and her son, Donnell Jones, were at the grocery
store located on Clarksville Pike across the street from a car wash and gas station at
around 5:00 p.m. or 6:00 p.m. on January 21, 2008. As they were exiting the grocery
store, she heard “at least three” gunshots, so she and her son ran back into the store. She
believed the gunshots came from the car wash located across the street from the grocery
store. Ms. Jones watched three black men run from the car wash toward the grocery store
and get into a “white SUV-type truck.” She described two of the men as “younger,” and
she said all three men were laughing like “something was funny.” Later, Ms. Jones
viewed photographic line-ups of suspects but was unable to identify any of the three men.
Donnell Jones testified that, on January 21, 2008, he was at the grocery store on
Clarksville Pike with his mother. As they were exiting the store, he heard gunshots
coming from across the street, so he and his mother went back into the grocery store.
Jones saw three black men running across the street toward the grocery store parking lot.
As the SUV drove away, Jones wrote down the license plate number from the SUV, and
he later provided the number to police. Jones said that he also identified two of the men
in a police photographic line-up.
Harold Haney, a Metropolitan Nashville Police Department detective, testified that
2
he obtained surveillance video of a shooting/homicide that occurred on Clarksville Pike.
The State played the video for the jury, and it showed one person who appeared to point
an object at an individual in front of him after which two people run away. On cross-
examination, Detective Haney agreed that other individuals seen on the surveillance
footage have not been identified.
Robert Hanson, a Metropolitan Nashville Police Department detective, testified
that he prepared photographic line-ups that included the Defendant and a co-defendant.
Detective Hanson showed the line-ups to Ms. Jones and her son separately. Ms. Jones
was unable to make an identification of the men she observed running away from the car
wash. Donnell Jones, however, identified the Defendant.
Raymond Pirtle, a co-defendant in this case, testified that he was a juvenile at the
time these crimes were committed. Pirtle said that he met the Defendant, whom he
described as a “friend[],” in school several years before the shooting. Pirtle testified that
he owned a nine-millimeter Smith and Wesson, which he loaned to the Defendant three
weeks before this shooting. Pirtle said that the gun was loaded at the time he gave it to
the Defendant.
Pirtle testified that on January 21, 2008, the Defendant appeared at Pirtle’s front
door and invited Pirtle “to do a robbery” with him, his father, “Kevin Sr.” and his brother,
Deangelo Buford. Pirtle agreed and got into the car with the Defendant, Kevin Sr., and
Deangelo Buford. They drove to a Burger King on Gallatin Road and parked. Kevin Sr.,
who had been driving, asked Pirtle if he knew “how to do a robbery” and Pirtle told him
that he did. Kevin Sr. then told them, “Well, a friend of mine told me about this car lot
that’s supposed to have some drugs and some money in there. They ain’t got no guns, so
it should be easy to go in there and get it.” Pirtle said that he, the Defendant and
Deangelo Buford, who had the gun, got out of the car and walked toward the car lot. As
they walked, they decided “it wasn’t good for us,” so they returned to the car. After
returning to the car, Kevin, Sr. asked what happened, and the boys responded, “They
didn’t let us in.” Kevin Sr. insisted the boys try again, but this second attempt was also
unsuccessful.
Pirtle testified that, next, Kevin Sr. drove to an Auto Zone and told the boys to
wait in the car while he checked for surveillance cameras. The Defendant’s father
returned to the car, made a brief phone call and then Pirtle arranged to buy some
marijuana from [Edwards]. After buying the marijuana, the group then went downtown
to pick up the Defendant’s uncle, Robert Buford, from work. After picking up Robert
Buford, Kevin Sr. went to a liquor store and said, “Y’all stay in the car; fixing to go in
here and get some liquor, so [ ] it’ll look like we drinking.” After buying liquor, the
3
Defendant’s father instructed Pirtle to arrange to buy a “quarter bag [of] weed,” Pirtle
arranged to meet “Edwards” to buy more marijuana. Once they arrived at the agreed
upon location, Pirtle learned that Kevin Sr. intended to rob “Edwards.” Robert Buford
was outside the car when “Edwards” approached and began talking with Pirtle. Robert
Buford asked “Edwards” for a cigarette and, when “Edwards” reached in his pocket,
“Robert Buford robbed him.” Kevin Sr. drove off, leaving Robert Buford behind, but he
later picked up Robert Buford in another location.
Pirtle testified that, after robbing “Edwards,” the men drove down Clarksville Pike,
and Kevin Sr. said, “Y’all got fifteen minutes to do a robbery, because I gotta go pick up
my wife from work.” The Defendant’s father pulled into a car wash, and the victim
walked by the group, counting some money. Kevin Sr. said, “He got some money.”
Pirtle described the Defendant as “a little hyper” because they had been drinking and
smoking all day. Robert Buford handed the Defendant the gun, and the two got out of the
car. Kevin Sr. drove the car across the street and parked in a grocery store parking lot.
Pirtle said that, after Kevin Sr. parked, he got out of the car and went across the street “to
help.” Pirtle saw the victim punch the Defendant and the two “got into a little fight and
the gun went off.” The Defendant, Robert Buford, and Pirtle then ran across the street
back to the car. Pirtle said that the Defendant’s father never threatened Deangelo Buford
or the Defendant into committing the robberies that day.
On cross-examination, Pirtle agreed that the Defendant’s father was “calling the
shots.” Pirtle agreed that they did not complete the robbery at the car lot because he, the
Defendant and Deangelo Buford were “scared.” When they did not complete this
robbery, Pirtle described the Defendant’s father as not happy and “a little bit” frustrated
with the three boys.
Chris Steele, a Metropolitan Nashville Police Department officer, testified that,
based upon the vehicle description and license plate provided by the Joneses, he was able
to determine that the vehicle belonged to Kevin Sr.. Kevin Sr. initially claimed that only
his son, Deangelo Buford, was in the car with him that day but later named the Defendant
as his son too. Based upon this information, police officers located Deangelo Buford and
the Defendant and transported them to the police station.
Sergeant Steele testified that he interviewed the Defendant, and a video recording
of that interview was played for the jury. Initially in the interview, the Defendant denied
any knowledge of the shooting or robbery. The Defendant said that at 6:00 p.m. he was at
his house. As the detectives revealed details of their investigation, the Defendant
continued to deny any knowledge of the events. He acknowledged that he rode on
Clarksville Highway with his brother and father but said that he could not remember at
4
what time of day. The Defendant denied going to the car wash and said that he was in a
store instead.
During the interview, the Defendant told police he was sixteen years old. After
police warned him that he could potentially be charged with these crimes as an adult, the
Defendant admitted that he, Pirtle and “some other dude” were at the car wash. The
Defendant told the police officers that Pirtle identified the victim as having “some
money,” and the Defendant “tried to rob him.” The Defendant described the robbery,
saying that the victim turned around and hit him. When the victim hit the Defendant, the
gun went off, after which the Defendant and Pirtle ran across the street. The Defendant
described the gun as silver and told the police officers that he gave the gun to Pirtle after
the robbery.
The Defendant said that, before the shooting, he was at a park on King’s Lane and
that he and Pirtle walked to the car wash from the park. The Defendant denied that he
and Pirtle ever discussed robbing someone. The Defendant said that his father and
brother were not present during the robbery but later came to the location to pick him up.
The Defendant told the police officers that his father’s wife, and not his father, was
driving the SUV. The Defendant maintained that his father knew nothing of the robbery,
explaining that he called his father and asked him to pick him up because the Defendant
was locked out of his house.
Based upon the Defendant’s references to “Little Ray” during the interview, police
officers located Raymond Pirtle and interviewed him as well. Pirtle confirmed the
information police officers already knew regarding the course of events.
On cross-examination, Sergeant Steele agreed that the gun used during the
shooting was never found. Sergeant Steele said that there were no additional safeguards
for juveniles during interrogations. The Defendant was sixteen at the time of the
interrogation, and, at that age, deemed old enough to read and understand Miranda rights.
Sergeant Steele said the Defendant was in bed asleep when police officers retrieved him
from his home for questioning, and the Defendant did not show any signs of impairment.
Sergeant Steele testified that, based upon his investigation, only one shot was fired during
this incident.
Sandra Parrish Thomas, an Assistant Medical Examiner, testified as an expert
witness in the field of forensic pathology. Dr. Thomas testified that she did not perform
the autopsy on the victim’s body, however, she had reviewed the report, notes, and
photographs of the victim’s autopsy and agreed with the determinations in the autopsy
report. The victim suffered a single gunshot wound, and the bullet had entered in the area
5
of his left shoulder blade on his back and exited the left side of the front of the victim’s
chest. Dr. Thomas testified that the cause of death was a single gunshot wound and the
manner of death was homicide.
The Defendant testified that he had not met his father until six months before the
robbery and shooting. His mother discouraged any contact between the two, but the
Defendant wanted to know his father. The Defendant said meeting his father was “the
most important thing” to him. The Defendant said that he “asked around” about his father
and, one day, his father called him on his cellular phone. The Defendant explained that
his father was not allowed to come to his home, so he would sneak out of his house and
meet his father down the street. At first, the two played video games and did “father and
son things.” After a few months, the Defendant’s father lost his job, and the Defendant
noticed a difference in his father. The Defendant said that his father began drinking and
using drugs.
The Defendant testified that he was friends with Raymond Pirtle and knew that
Pirtle had a gun. One day Pirtle left his gun with the Defendant at the Defendant’s house.
The Defendant said he “put [the gun] up” and then called his father and told him about
the gun. Several days later, the Defendant’s father came to get the gun. The two met
down the street, per their usual routine, and the Defendant gave Pirtle’s gun to his father.
The next time the Defendant saw his father was the day of these crimes.
The Defendant recalled that, on January 21, 2008, the Defendant was at his aunt’s
home in Madison, Tennessee, when his father called him. The Defendant and the
Defendant’s brother met their father at 8:00 a.m. or 9:00 a.m. The Defendant said they
ran errands, got their haircut, and ate lunch. At one point, the Defendant’s father began
asking questions about who gave the Defendant the gun. The Defendant told his father
that Pirtle gave him the gun and his father suggested they contact Pirtle to help with a
robbery. The Defendant told his father that he did not “know how to do no robbery,” but
his father said he would show the Defendant.
The Defendant testified that he went to Pirtle’s home and invited Pirtle to join
them, and Pirtle agreed. The Defendant said that his father, who was forty-two years old,
drove the three boys around. Deangelo Buford, who was seventeen at the time, sat in the
passenger seat while the Defendant, who was sixteen, and Pirtle, who was seventeen
years old, sat in the back seat. The Defendant’s father drove to Madison and parked in a
fast food restaurant parking lot located next to a car lot. The Defendant’s father then told
the three boys how they were going to accomplish the robbery of the car lot. The
Defendant said that the three boys got out of the car, walked up to the building on the car
lot where they were supposed to go and kept walking. The Defendant said they were
6
scared, so they “made up a story” to tell his father and returned to the car. The Defendant
said that his father did not say much, but he could tell that his father was mad that they
had not completed the robbery.
The Defendant testified that they then went next door to an Auto Zone. The
Defendant’s father went inside the Auto Zone and, when he realized “we couldn’t rob it,”
he came back out and they left. The Defendant said that he was “relieved” when they
drove away from the Auto Zone. The Defendant described his father as “mad” and
“frustrated.” Next, Pirtle bought marijuana from “Edwards,” and the Defendant’s father
rolled up several joints and they all smoked. The Defendant recalled that his father was
driving “past downtown” when they saw Robert Buford, his father’s brother. The
Defendant estimated that Robert Buford was thirty-nine. Robert Buford joined the men,
and they drove to a liquor store on Jefferson Street, where the Defendant’s father bought
liquor. When the Defendant’s father returned to the car, he wanted Pirtle to rob someone
but changed his mind because there were “too many people in the store.” The
Defendant’s father bought three little bottles of “clear liquor” and everyone in the car
drank some of it. The Defendant said that he did not know how much he drank that day
and said it was the first time he had consumed alcohol.
The Defendant testified that Pirtle called “Edwards” and arranged to meet him at a
store to buy more marijuana. When “Edwards” arrived, he walked over to their car, and
Robert Buford robbed “Edwards” with Pirtle’s gun. The Defendant said that he believed
they were buying marijuana and did not know Robert Buford was going to rob “Edwards”
until it happened. The Defendant said that, when this happened, he was confused and
“didn’t understand why they did it.”
After robbing “Edwards,” the Defendant’s father drove to a car wash on
Clarksville Pike where they saw the victim. The Defendant’s father said the victim had
money and instructed the Defendant to rob the victim. The Defendant’s father sent
Robert Buford with him “to make sure.” As the Defendant was getting out of the car,
Robert Buford handed him the gun, and they walked toward the victim. The Defendant
said that he told the victim, “Come on with it,” and the victim turned and hit the
Defendant. The Defendant said he did not know what to do, and he heard Robert Buford
say, “Shoot’im. Shoot’im,” so he shot the victim. The Defendant said that he fired the
gun once and then ran toward the car. Once back in the car “everybody was telling [the
Defendant] [he] was stupid.” The Defendant’s father told everyone in the car, “if we
mention his name, then we know what it is.” The Defendant interpreted this statement as
a threat. The Defendant said that he placed the gun under his father’s seat in the car.
The Defendant testified that his father took him and his brother home. Once at
7
home, the Defendant recalled that he was “scared” and “crying and stuff” but eventually
went to sleep. At approximately 2:00 a.m., police officers woke him and took him to the
police station for questioning. The Defendant said that most of his statement to the police
was a lie, because his father told him not to mention his name. The Defendant said he
tried to “protect” his father because “he my family and, if I mention his name, then he
could easily get to me.”
The Defendant agreed that he previously pled guilty in this case and, as part of the
plea, made a proffer of evidence. The Defendant confirmed that his proffer at the guilty
plea hearing was truthful. Subsequently the Defendant withdrew his guilty plea because
he believed his attorney at that time misadvised him.
On cross-examination, the Defendant agreed that the State’s offer was that he
would plead guilty to second-degree murder in exchange for testifying at his father’s trial.
A week or two before his father’s trial, the Defendant said that he wanted to withdraw his
plea, and he did not testify at his father’s trial.
Trixie Williams, the Defendant’s mother, testified that, about six months before
this incident, the Defendant expressed a desire to know his father. Williams said she did
not approve of her son meeting his father, because his father was an “abusive person.”
Williams said that the Defendant made contact with his father against her wishes.
Based upon this evidence, the jury convicted the Defendant of felony murder and
attempted especially aggravated robbery. The trial court ordered the Defendant to serve a
life sentence for the felony murder conviction and to serve ten years for the attempted
especially aggravated robbery. The trial court ordered the two sentences to run
concurrently to one another. It is from these judgments that the Defendant now appeals.
II. Analysis
The Defendant argues that the evidence presented at trial is insufficient to support
a finding that he is guilty of the underlying felony of attempted especially aggravated
robbery. He contends that he was manipulated by his father, and, thus, the proof does not
support that he acted intentionally or knowing with respect to the attempted especially
aggravated robbery, and subsequent murder of the victim. The State responds that the
proof in this case does not support a duress claim and does support the jury’s finding that
the Defendant acted intentionally or knowingly.
When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the
8
State, “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 Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State,
286 S.W.2d 856, 859 (Tenn. 1956). “Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); See also Liakas, 286 S.W.2d at 859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)
(quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). The Tennessee 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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record, as well as all reasonable inferences which
may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes
the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to
sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
A. Attempted Especially Aggravated Robbery
The Defendant was convicted of attempted especially aggravated robbery.
Especially aggravated robbery is “the intentional or knowing theft of property from the
9
person of another by violence or putting the person in fear” where the defendant uses a
deadly weapon and causes seriously bodily injury to the victim. T.C.A. §§ 39-13-401(a),
-403(a) (2010). “A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense . . . [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.” T.C.A. § 39-12-101(a)(3) (2010).
Therefore, criminal attempt requires two material elements: (1) the culpability required
for the attempted crime; and (2) an act in furtherance of the attempted crime. Wyatt v.
State, 24 S.W.3d 319, 323 (Tenn. 2000).
The evidence considered in the light most favorable to the State proved that the
Defendant’s father told him to rob the victim, who walked by the men while he was
counting money. The victim took the gun, got out of the vehicle and approached the
victim demanding money. When the victim resisted, the Defendant shot the victim and
fled.
This evidence proves that the Defendant, armed with a weapon, attempted to take
the victim’s money and, in the course of so doing, shot and killed the victim.
Accordingly, we conclude that the evidence is sufficient to support the jury’s finding that
the Defendant was guilty beyond a reasonable doubt of attempted especially aggravated
robbery.
The Defendant concedes that he “fired the shot that resulted” in the victim’s death.
He argues, however, that there was insufficient evidence that he had the requisite mens
rea for this offense because “his will . . . was overcome by the actions and demands of his
father.” The Defendant testified in this case and provided the jury with his account of the
events of the day. Defense counsel did an excellent job in presenting the complexities of
the Defendant’s relationship with his father and the influence of the father on the
Defendant at the time of these crimes. It is the jury who is charged with making
credibility determinations, not this Court. State v. Smith, 24 S.W.3d 274, 278 (Tenn.
2000). It is not the function of this court to reweigh the credibility of witnesses on
appeal. Id. at 278-79. There was sufficient evidence to support a jury finding that the
Defendant acted intentionally or knowingly. The jury, based upon the verdict, did not
accredit the defense theory that the Defendant’s “will . . . was overcome by the actions
and demands of his father.” We will not disturb their decision. The Defendant is not
entitled to relief as to this issue.
B. Felony Murder
10
In this case, the Defendant was convicted of first degree felony murder in the
perpetration of an attempted especially aggravated robbery. This requires proof beyond a
reasonable doubt that the Defendant killed the victim during an attempt to perpetrate an
especially aggravated robbery. See T.C.A. § 39-13-202 (2010). The mental state
required for the conviction was that the Defendant possessed the intent to commit the
underlying offense, which in this case was the attempt to commit robbery.
The evidence, considered in the light most favorable to the State, proves that the
Defendant approached the victim, who had been counting money, with a gun. The
Defendant demanded that the victim give him the money. The victim hit the Defendant
and the Defendant fired one shot at the victim which killed him.
This evidence showed that, during the course of an attempted robbery, the
Defendant shot and killed the victim. Accordingly, we conclude that the evidence is
sufficient to support the jury’s finding that the Defendant was guilty beyond a reasonable
doubt of first degree murder in the perpetration of an attempted especially aggravated
robbery. As such, the Defendant is not entitled to relief on this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
11