Before Bridges, C.j., Payne, And Southwick, JJ.
The opinion of the court was delivered by: Southwick, J.
DATE OF JUDGMENT: 12/02/1997
TRIAL JUDGE: HON. C. E. MORGAN III
COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: 12/02/1997: MURDER: SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT IN THE MDOC;
DISPOSITION: REVERSED AND REMANDED - 12/18/98
¶1. Derrick Edwards was convicted by a Winston County Circuit Court jury of murder. On appeal he argues that there was insufficient evidence or at least that the verdict was against the great weight of evidence; hearsay was improperly admitted; an invalid jury instruction was given; and a continuance was erroneously denied. We agree that hearsay should have been excluded and that the verdict was against the overwhelming weight of the evidence. We reverse and remand.
¶2. William Scott Tatum was shot and killed in front of Hattie Edwards's home in Louisville on May 7, 1997, around 2:40 p.m. Hattie Edwards is the grandmother of the defendant Derrick Edwards. Trial testimony indicated that Tatum had been parked in Alice Circle when he was approached by Derrick Edwards. After standing by Tatum's truck for several minutes, Edwards walked away. Tatum then drove off and within approximately ten minutes was parked in the driveway of Hattie Edwards's house on Jefferson Street. Jefferson is one block away from Alice Circle and can be reached by walking through a yard on Alice to the backyard of the Edwards' home on Jefferson. Tatum was shot shortly after parking in the driveway. Two witnesses testified to seeing Derrick Edwards run away from the area of the shooting, though not contemporaneously with the shots.
¶3. The key witness, Larry Warren, was seated in the passenger's seat of a jeep driven by Gary Porter which was proceeding northwards on Warner Avenue either crossing or about to cross Jefferson Street when Porter and Warren heard shots. Warren testified that he heard three shots and then turned to see someone shoot two more times at Tatum from close range. The Edwards' home where Tatum was shot was the second house from the Jefferson-Warner intersection. The certainty of Warren's identification of the shooter is central to several appellate issues.
¶4. Warren and Porter, along with a third person who did not testify, then turned around and went to the crime scene. Warren ran to his mother's house making statements implicating Derrick Edwards. Hattie Warren and Lakeesha Thames testified to hearing these statements though they differed on the contents. Thames and Michelle Woods testified to seeing Derrick Edwards run along a fence near the crime scene after the shooting. Thames saw Edwards after having seen the witness Larry Warren running. Woods saw Edwards ten to fifteen minutes after the shooting. Edwards was arrested later the same day.
¶5. In Larry Warren's statement to the police on the day of the shooting, he did not identify anyone as the shooter. The following day Warren gave a second statement saying that he thought Edwards was the person whom he saw. Warren testified this second statement was made after he was arrested by the police and told he could be charged with withholding evidence. Warren also said there was another person, besides the victim and defendant, present at the shooting though this individual was never identified. Larry Warren testified he thought it was Derrick Edwards he saw shoot the victim but admitted he was some 50 yards away from the scene and his view was obstructed by the victim's truck.
Issues 1 & 2: Evidence to support the verdict.
¶6. The question of admissibility of hearsay evidence is discussed in tandem with the weight and sufficiency issues as all are intertwined.
¶7. Two important sets of statements were made. One set dealt with the witnesses seeing Edwards running after the shooting. The other set dealt with the witnesses having overheard a person who saw the shooting identify the shooter. Regarding the first set of statements, Officer Donnie Graham was allowed to testify by relating what he was told by witnesses during his investigation.
Q. Mr. Graham, did you have an occasion to talk to Michelle Woods and Lakeesha Thames?
Q. Did they tell you whether or not they heard the shots fired over close to the Edwards' residence?
A. I believe Miss Thames said she did not hear the shots but Miss Woods did.
Q. Shortly after the shots were fired did she identify any individual leaving from close proximity of the Edwards' residence?
BY MR. AUSTIN: I am going to object to that. That is not the best evidence. She can testify as to whether or not she identified somebody.
BY MR. HORAN: Your Honor, this is identification after she perceived that individual, shortly after.
BY THE COURT: It's overruled.
Q. Did she identify anybody leaving from the ...