State of Tennessee v. Anwar Ghazali

Jackson, TN - Criminal defense attorney represented Anwar Ghazali with a second-degree murder charge.

On May 24, 2018, a Shelby County grand jury indicted the Defendant for firstdegree murder. See Tenn. Code Ann. § 39-13-202. The Defendant proceeded to a jury trial, where the State adduced the following proof.



On the evening of March 29, 2018, the seventeen-year-old victim, Dorian Harris,

visited the Top Stop Shop on Springdale Street in Memphis, Tennessee. The victim was

described as a regular customer at the establishment. The Defendant was a store clerk at

the Top Stop Shop and was working the register that evening.

Beverly Loverson was present at the Top Stop Shop that evening with her family.

The family had gone inside the store, and after Ms. Loverson had competed her purchase,

she returned to her van in the parking lot and waited on her son who was still inside. Ms.

Loverson recalled that while waiting, she saw the victim come around the building and

throw a plank at the exterior wall before entering the store. His behavior led her to believe

he was angry, so she got out of her van to go back the store to get her family out of harm's

way. She testified that while returning to the store, she watched the victim take two beers

from the cooler and "slam” the door shut. According to Ms. Loverson, the victim ran out

of the store and dropped one of the beers, and the Defendant picked up a gun from behind

the counter and ran to the door. Ms. Loverson recalled that when the victim began to run,

the Defendant "looked like he was going to shoot from behind the counter.” Ms. Loverson

testified that she told the Defendant "don't kill [the victim], it's just a beer.”

Ms. Loverson testified that she went outside and watched the armed Defendant

chase the victim while firing his weapon. She saw the Defendant leave the store property

and run "to the corner of the yellow house” that was across from the store. Ms. Loverson

indicated that the victim continued past the yellow house toward an adjacent vacant lot,

and she assumed that the victim was cutting through that vacant lot, which she called the

"cut.” Ms. Loverson testified that she watched the Defendant fire the gun from the

sidewalk of the yellow house shooting while aiming at "the cut.” Mr. Loverson asserted

that the Defendant shot "five or six times” and that she was close enough to the Defendant

when he fired the gun that her "ears were ringing.” According to Ms. Loverson, the

Defendant was not aiming his weapon in the air but at the victim; there was no return fire;

and the victim did not return to the store.

Ms. Loverson went back inside the store to get her family. She recalled that the

Defendant walked back inside the store and said, "I think I hit [the victim's] a-s.” The

Defendant went back to the counter and continued to wait on customers. The Defendant's

statement made Ms. Loverson believe that the victim had been shot. She testified that she

got in her van and drove slowly down Springdale Street in an attempt to find the victim.

She testified that it was dark and difficult to see at the time and that she did not see the

victim or any movements. Afterwards, Ms. Loverson did not call the police because she

thought the victim had gotten away or would get help if he had been shot.

Terrance Stevenson was also at the Top Stop Shop on the evening of March 29,

2018. Mr. Stevenson testified that he was waiting in line at the counter when the victim

entered the store, slamming the door as he entered. Mr. Stevenson turned around when he

heard the cooler door slam and saw that the victim had taken two beers. Mr. Stevenson - 3 -

testified that the victim dropped one beer before running out of the door toward Howell

Street, across from the store. Mr. Stevenson testified that the Defendant got a gun from

behind the counter, pointed it at the victim, and said, "I'm fixing to get [the victim].” Mr.

Stevenson went to the glass door to watch and could see the Defendant shooting the gun at

the victim as he fleeing. Mr. Stevenson saw the Defendant run to the corner of the yellow

house, but Mr. Stevenson could not see the Defendant after he got to that corner. Mr.

Stevenson recalled hearing "three or four” gunshots. The Defendant came back inside the

store where Mr. Stevenson watched him walk back behind the counter and recalled him

saying, "I think I got [the victim].” The Defendant proceeded to unload the gun and put it

back behind the counter. Mr. Stevenson testified that the Defendant's statement led him

to believe that the victim had been shot, but Mr. Stevenson did not want to call the police

because he did not want to get involved.

On the afternoon of March 31, 2018, Henry Pipkin and his wife, Beatrice Pipkin,

had returned home from mowing. The Pipkins' home was located on Springdale Street

and was three buildings down from the Top Stop Shop. The Pipkins were in their back

yard when their daughter found blood on the patio and in the grass. Mr. Pipkin also

observed blood on the patio concrete and followed a trail of blood around the side of his

house. Mr. Pipkin noticed blood on the side of his house, and it looked like someone had

"sprayed” blood on the window. He then found a red tennis shoe, and as he continued to

follow the trail along his fence over to a vacant barber shop lot, he found the victim's body

beside a tree on the other side of his fence.

Mrs. Pipkin called the police and testified that the body appeared to have been there

for some time because the victim's body looked "stiff” and "swollen” and the blood on the

victim's body and clothes was dry. At trial, both Mr. and Mrs. Pipkin recalled hearing

about five gunshots on the evening of March 29, 2018, and said that it was common to hear

gunshots in the neighborhood. Based upon his familiarity with the neighborhood, Mr.

Pipkin indicated that he believed the shots were fired near the Top Stop Shop on that

evening.

When the police arrived around 4:00 p.m., the officers observed dried blood on Mr.

Pipkin's window and fence, a red shoe near the window where the blood was, and the

victim's body next to the fence. The officers also found blood splatter on the vacant home

beside the Pipkins' house. As officers secured the surrounding area, three shell casings

were found at the intersection of Springdale Street and Howell Street across from the Top

Stop Shop. The Top Stop Shop had a total of twenty-four security cameras and sixteen of

them captured what happened at the shop on March 29, 2018 from several angles. Sam

Alsoga, an employee from the Top Stop Shop, testified at trial that the Defendant called

him on Saturday, March 31, 2018, to get the password to the surveillance footage, so that

the police could access the videos. Mr. Alsoga also testified that the gun kept at the store

was the store owner's personal gun, not the Defendant's. - 4 -

The surveillance footage from the store's security cameras showed the victim

throwing a plank at the exterior wall and then pushing the store's door open. At trial, both

Mr. Alsoga and Ms. Loverson identified the Defendant in the video and testified that he

was standing behind the cash register. The video showed the victim going to the cooler

and getting two beers and then running out of the store and dropping one of the beers.

Following this footage, Mr. Stevenson and Mr. Alsoga recognized the Defendant picking

up a gun from behind the counter, pointing it at the victim, and then running out the door

to chase him. In the video, the Defendant was seen standing outside of the store pointing

the gun in the same direction that the victim was running.

On the afternoon of March 31, 2018, Ms. Loverson was traveling through the

neighborhood when she saw the crime scene tape and police at the Pipkins' house. She

testified that when she saw the crime scene tape, she said, "I'll bet that's the guy, the young

man that got killed Thursday.” Ms. Loverson stopped at the house and described to Mrs.

Pipkin the clothing the victim was wearing when she last saw him at the Top Stop Shop;

Mrs. Pipkin confirmed to Ms. Loverson that she observed similar clothing on the victim.

Ms. Loverson testified that when she got to the Pipkins' house, she could see the Defendant

standing outside smoking at the Top Stop Shop. She then proceeded to tell the detective,

"[T]here's the young man standing there smoking a cigarette, he's responsible for this

young man's death.” Ms. Loverson provided police with a statement and identified the

Defendant in a photo identification lineup.

The police took the Defendant to the police station to give a statement. The

Defendant was given his Miranda warnings, and he voluntarily waived his rights and

signed a waiver form. The Defendant indicated that he had been employed at the Top Stop

Shop for two months and was working on the evening of March 29, 2018. In his statement,

he said that he was waiting on customers when the victim walked into the store, slammed

the cooler door, and took two beers from the cooler. The Defendant said that he grabbed

the .40 caliber Glock from behind the store counter and proceeded to run after the victim.

The Defendant claimed he went outside to see where the victim had gone, and after

someone told him the victim went "that way,” the Defendant aimed the gun "up” to fire

warning shots. The Defendant averred that he only fired twice. The Defendant said that

the victim did not stop, so he went back inside the store, put the gun back behind the

counter, and did not make any statements to the customers. The Defendant said that he did

not call the police because he did not "hit” the victim and that it was time for him to close

the store.

Subsequent forensic testing by the Tennessee Bureau of Investigation revealed that

the Hornady .40 caliber Smith and Wesson cartridge casings found near the Top Stop Shop

were fired from the same Glock handgun that was found at the store. No bullets were

recovered from the scene that matched the gun. In addition, the senior operator from the

Emergency Communications Bureau testified that there were no emergency calls made on

March 29, 2018, to Springdale Street in reference to either a theft or gunshots. - 5 -

The victim's grandmother, Effie Peete, testified at trial that the victim lived with her

and that her house was about five houses down from the Top Stop Shop. According to Ms.

Peete, the last time she saw the victim was around 6:00 or 7:00 p.m. on the evening on

Thursday, March 29, 2018, when the victim left to walk to his cousin's house, which was

one street behind Ms. Peete's house. Ms. Peete further testified that she believed the victim

was staying with his cousin that evening and the next, and therefore, she did not expect to

see the victim again until sometime on Saturday, March 31, 2018. Ms. Peete was not

notified that the victim never arrived at his cousin's house.

An autopsy was performed on the victim, and the cause of death was determined to

be "a gunshot wound to the thigh.” The death was classified as a homicide. The medical

examiner testified that a bullet was not recovered from the body because the victim had an

entrance and exit wound. The bullet entered the back of the victim's left thigh and exited

from the front inner part of the left thigh, perforating the superficial artery. The medical

examiner testified that a wound with such a "degree of injury” to the superficial artery

could have caused bleeding so rapid that the victim could have died within several minutes,

though the victim would have been able to run immediately after he was shot. The medical

examiner also said that depending on the position of the leg and whether or not pressure

was applied to the wound, the bleeding could have been "significantly stem[med]” for

some time and taken longer for the victim to die from the wound. The medical examiner

testified that the victim died sometime between when he was last seen on March 29, 2018,

and twelve to eighteen hours before his body was found on March 31, 2018.

The medical examiner testified that the toxicology report revealed a presence of

alcohol, amphetamine, and marijuana in the victim's system. However, the medical

examiner indicated that the combination of the substances might have had a minor effect

or no effect at all on the victim's behavior. The medical examiner testified that the level

of alcohol in the victim's body was below the legal limit and that the amount of marijuana

was consistent with recreational use. Additionally, the amount of amphetamine in the

victim's body was within a therapeutic range for treatment of ADHD.

Vita Zalikov, a private investigator, testified for the defense. She said that she

interviewed both Ms. Loverson and Mr. Stevenson. Ms. Zalikov testified that she

interviewed Mr. Stevenson moments before he was called to testify on the day of the trial.

She recalled that Mr. Stevenson told her he did not see the shooting and did not go outside

of the store when the Defendant ran out of the store. Ms. Zalikov also recalled that Mr.

Stevenson told her that the Defendant said, "I think I got [the victim,]” when he returned

to the store.

Ms. Zalikov testified that she had visited the Top Stop Shop during both daytime

and nighttime hours to take measurements. She testified that there was a distance of

seventy-seven feet between where the Defendant started firing the gun and where the - 6 -

victim turned and ran into "the cut.” Ms. Zalikov testified that there was difficulty "seeing

into the cut” from seventy-seven feet away.

Based upon the foregoing, the jury convicted the Defendant of second-degree

murder as a lesser-included offense of first-degree murder. The Defendant was sentenced

to twenty-two years' imprisonment. This timely appeal followed.

ANALYSIS

The Defendant contends that the evidence was insufficient to sustain his conviction

for second-degree murder. Specifically, the Defendant contends that the evidence was

insufficient because of a substantial two-day delay between the time of the alleged incident

and the discovery of the body. The Defendant notes that gunshots were common in this

neighborhood and that during the forty-eight-hour gap between the victim's fleeing the

store and his body being found, the blood trail at the Pipkins' house to the victim's body

went unnoticed in an open area. Additionally, the Defendant submits that the State failed

to establish that the victim was missing during the two days, observing that no one reported

the victim as missing. The Defendant further argues that there was a lack of evidence

proving that it was the Defendant who shot and killed the victim, commenting that there

was no proof that bullets from the Defendant's gun actually hit the victim and that the

Defendant's statements to the Top Stop Shop's customers were merely "chest-puffing”

rather than a sincere claim.

The State responds that the evidence was sufficient. The State argues that the

evidence showed that the Defendant deliberately fired the gun at the victim and that he

vocalized his intent to shoot the victim when he said he was "fixing to get [the victim]” as

he ran out of the store. The State also contends that the evidence established that the victim

was hit by one of the Defendant's shots because the Defendant indicated to both Ms.

Loverson and Mr. Stevenson that he thought he hit the victim. Further, the State notes that

the Defendant had reason to believe he hit the victim because he lied to police about

shooting the gun three times in the air, he returned to the store after he fired the first shots,

and he did not speak to any customers when he entered the store. The State concludes that

the jurors could have rationally inferred that the Defendant lied because he knew he was

guilty.

An appellate court's standard of review when the defendant questions the

sufficiency of the evidence on appeal is "whether, after viewing 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

(1979). This court does not reweigh the evidence, rather, it presumes the jury has resolved

all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor

of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in - 7 -

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

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.” Bland, 958 S.W.2d at 659; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict "may not be based solely

upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d

125, 129 (Tenn. Crim. App. 1987). However, "[t]here is no requirement that the State's

proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Put another way, the State is not burdened with "an affirmative duty to rule out every

hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 326.

The foregoing standard "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). Both "direct and

circumstantial evidence should be treated the same when weighing the sufficiency of such

evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this court

"on appeal of a conviction is not to contemplate all plausible inferences in the [d]efendant's

favor, but to draw all reasonable inferences from the evidence in favor of the State.” State

v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

Second-degree murder is defined as "[a] knowing killing of another.” Tenn. Code

Ann. § 39-13-210(a)(1). A person acts knowingly "with respect to a result of the person's

conduct when the person is aware that the conduct is reasonably certain to cause the result.”

Tenn. Code Ann. § 39-11-302(b). "A person can act knowingly irrespective of his or her

desire that the conduct or result will occur.” State v. Gray, 960 S.W.2d 598, 604 (Tenn.

Crim. App. 1997) (citing State v. Rutherford, 876 S.W.2d 118, 120 (Tenn. Crim. App.

1993)).

Based upon the evidence in the light most favorable to the State, the jury could have

reasonably inferred that the Defendant knowingly killed the victim. Ms. Loverson testified

that when the victim ran out of the store with a beer, the Defendant "looked like he was

going to shoot from behind the counter.” Ms. Loverson watched the Defendant run out of

the store after the victim, and Mr. Stevenson recalled the Defendant's stating that he was

"fixing to get” the victim as he pointed the gun at the victim. Ms. Loverson saw the

Defendant fire the gun "five or six times” in the victim's direction, and Mr. Stevenson said

that he heard "three or four” gunshots and watched the Defendant shoot the gun at the

victim. After the Defendant shot at the victim and returned to the store, Ms. Loverson and

Mr. Stevenson heard the Defendant say that he thought he hit the victim.

Additionally, the surveillance footage from the store's security cameras

corroborated the witnesses' testimony, showing that the Defendant picked up a gun from - 8 -

behind the counter and pointed it at the victim. The video footage then showed the

Defendant running out of the store chasing the victim and pointing the gun in the same

direction that the victim was running. Finally, the Defendant evidenced some

consciousness of guilt by changing details of the relevant events in his police statement,

which minimized the Defendant's actions and culpability in the victim's death.

Two days later, the victim's body was found at the Pipkins' home on Springdale

Street just three buildings down from the Top Stop Shop. The victim's blood was found

on Mr. and Mrs. Pipkin's house, window, and fence. The blood left a trail in their yard

that led to the victim's body. The victim's blood was also found on the vacant house

located beside the Pipkins' house. Mrs. Pipkin testified that the body appeared "stiff” and

"swollen” and the blood covering the body appeared to be "dry.” Thus, the victim's body

had been there for some period of time. Further, Ms. Loverson confirmed the clothes the

victim was wearing on the evening of March 29, 2018, matched the clothes on the victim's

body when it was found on March 31, 2018.

Additionally, the police recovered three shell casings from the intersection of

Springdale Street and Howell Street across from the Top Stop Shop. Forensic testing

indicated that the cartridge casings recovered by police were fired from the gun kept behind

the counter at the Top Stop Shop, the same gun the Defendant used. This court has held

that pointing a gun at someone and discharging it is sufficient to sustain the "knowing”

element of second-degree murder. See State v. Anthony Bayman, No. W2014-01537-

CCA-R3-CD, 2015 WL 12978649, at *6 (Tenn. Crim. App. Aug. 17, 2015); State v. Randy

Ray Ramsey, No. E2013-01951-CCA-R3-CD, 2014 WL 5481327, at *6-7 (Tenn. Crim.

App. Oct. 29, 2014).

The medical examiner indicated that the victim died sometime between when he

was last seen and twelve to eighteen hours before his body was found on March 31, 2018.

Furthermore, the autopsy of the victim revealed that the cause of death was "a gunshot

wound to the thigh,” and the death was classified as a homicide. The medical examiner

testified that a wound with such a "degree of injury” to the superficial artery could have

caused bleeding so rapid that the victim could have died within several minutes without

pressure being applied to the wound.

Though the victim was not reported missing, Ms. Peete explained that the victim

was supposed to have been be staying with his cousin from Thursday, March 29th through

Saturday, March 31st. Ms. Peete had given the victim permission to stay with his cousin

and did not expect to see the victim until sometime on Saturday. Therefore, Ms. Peete had

no reason to question where the victim was or if something had happened to the victim

during that timeframe.

The jury was free to resolve any inconsistencies or gaps in the testimony in favor of

the State. A rational juror could conclude that the evidence was sufficient beyond a - 9 -

reasonable doubt that the Defendant, and not another unknown person, inflicted the fatal

gunshot wound. The Defendant's arguments to the contrary are without merit.

Upon consideration of the foregoing and the record, the judgment of the trial court

is affirmed.