State of Tennessee v. Christopher Swift ( 2019 )

03/28/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 6, 2018
STATE OF TENNESSEE v. CHRISTOPHER SWIFT
Appeal from the Criminal Court for Shelby County
No. 11-04531 James C. Beasley, Jr., Judge
No. W2018-00054-CCA-R3-CD
The Defendant, Christopher Swift, was convicted by a jury of first degree premeditated
murder; attempted first degree murder, a Class A felony; and employment of a firearm
during the commission of a dangerous felony; a Class C felony.1 See Tenn. Code Ann.
§§ 39-12-101, -13-202, -17-1324. The trial court later imposed a total effective sentence
of life plus twenty-six years. On appeal, the Defendant contends that (1) the evidence
was insufficient to sustain the Defendant’s conviction for first degree premeditated
murder; (2) the trial court abused its discretion in denying the Defendant’s motion to
disqualify one of the prosecutors; (3) African-Americans were improperly excluded from
the jury venire; (4) the State “intentionally mislead [the] jury” during the examination of
one of its witnesses; (5) the trial court erred by allowing the admission of hearsay; (6) the
trial court erred by allowing the jury to review transcripts of recorded jail phone calls as
those recordings were played; (7) the State improperly displayed photographic exhibits
during its closing argument; (8) the State withheld evidence; and (9) a new trial is
warranted due to cumulative error.2 Following our review, we affirm the judgments of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.
John Charles Catmur, Jr. (on appeal); Charles Scott Mitchell V (at trial); and Gregory
David Allen (at trial), Memphis, Tennessee, for the appellant, Christopher Swift.
1
The Defendant was initially tried along with a co-defendant and convicted of the same offenses.
However, this court reversed those convictions and remanded the Defendant’s case for a new trial. See
State v. Christopher Swift & Marquavious Houston, No. W2013-00842-CCA-R3-CD, 2015 WL 2128782,
at *1 (Tenn. Crim. App. May 5, 2015). The Defendant’s retrial is the subject of this appeal.
2
We have reordered and renumbered the issues as they appear in the Defendant’s brief for clarity.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Pamela Stark and
Reginald Henderson, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL BACKGROUND3
This case arises from the shooting of Marco Blockmon and Demarus Smith by the
Defendant and co-defendant Marquavious Houston in Memphis on January 17, 2011.
Mr. Blockmon lived with his mother, Gertrude Bolden, and “worked on cars.” Mr.
Blockmon had agreed to work on co-defendant Houston’s black Camaro, but he “hadn’t
gotten around to” it. The car had been at Ms. Bolden’s house for “a couple of weeks”
prior to the shooting. In the days leading up to the shooting, co-defendant Houston had
come to Ms. Bolden’s house three times looking for Mr. Blockmon. Co-defendant
Houston was “calm” the first time. The second time, co-defendant Houston was a “little
agitated” and “was loud, real loud, cursing.” The third time, co-defendant Houston “was
kind of aggressive and kind of loud.” Mr. Blockmon and Mr. Smith were shot “[a]
couple of days” after co-defendant Houston’s third visit.
At trial, Mr. Smith testified that he picked up Mr. Blockmon from Ms. Bolden’s
house around 11:30 a.m. on January 17, 2011. Mr. Blockmon was going to work on Mr.
Smith’s red Crown Victoria so the car would “pass inspection.” Mr. Smith recalled that
they first stopped to get a tool Mr. Blockmon needed. While Mr. Blockmon was getting
the tool, Mr. Smith received a phone call from co-defendant Houston, who Mr. Smith
knew by the nickname “Quay Quay.” Mr. Smith did not answer the phone, and
co-defendant Houston left a voicemail. Mr. Smith did not immediately check the
voicemail. When Mr. Blockmon returned from getting the tool, Mr. Smith told him about
co-defendant Houston’s call. Mr. Blockmon said that “he didn’t want to talk to”
co-defendant Houston. Mr. Smith testified that he listened to the voicemail sometime
after the shooting and that co-defendant Houston had left a “very angry and threatening”
message.
Mr. Smith then began to drive to the location where Mr. Blockmon was going to
work on his car. Mr. Smith testified that as he was stopped at a stop sign, “a green
Saturn” pulled up next to his car “on the wrong side of the street.”4 According to Mr.
Smith, co-defendant Houston was driving the green Saturn and the Defendant, who Mr.
3
This section will address the factual background of the Defendant’s convictions. The factual
background of the Defendant’s procedural issues will be discussed in the relevant portions of our analysis.
4
It was later revealed that the Saturn belonged to co-defendant Houston’s girlfriend.
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Smith knew by the nickname “Jerry Lawler,” was in the passenger seat. Co-defendant
Houston asked Mr. Smith if he knew where Mr. Blockmon was. Mr. Smith explained
that Mr. Blockmon “was laid back in the seat” so that co-defendant Houston did not see
him. Mr. Smith told co-defendant Houston that Mr. Blockmon “was sitting on the side
of” him. Co-defendant Houston asked Mr. Blockmon if he “was . . . going to work on
[co-defendant Houston’s] car,” and Mr. Blockmon responded that “he was going to do it,
but he wasn’t going to do it right now.” Mr. Smith started to drive away. Mr. Smith
heard the Defendant say something, but he could not make out what it was.
Mr. Smith estimated that some “five or ten seconds” later, “shots were fired.” In
his rearview mirror, Mr. Smith saw co-defendant Houston and the Defendant shooting at
his car. Mr. Smith recalled that co-defendant Houston had a handgun and the Defendant
was “hanging out the window with [an] assault rifle.” Mr. Blockmon “said he had been
hit.” Mr. Smith tried to drive away and get Mr. Blockmon to a hospital, but the wheels of
his car started spinning because the road was wet. While Mr. Smith attempted to flee, the
Defendant and co-defendant Houston were “still firing.” Mr. Smith then “felt the first
bullet in the lower part of [his] back, and . . . [his] legs and stuff [went] numb.” Mr.
Smith’s car crashed between a fire hydrant and a telephone pole. After the car crashed,
the Defendant and co-defendant Houston “pulled on upon the side of [the car] and
continued shooting.” They shot at Mr. Smith’s car “about four more times” before
driving away.
Mr. Blockmon started “[c]oughing up blood.” At that point, Mr. Smith “knew
[Mr. Blockmon] was gone.” Mr. Smith called his wife, who called 911. The first
officers responded to the shooting between 1:30 and 1:50 p.m. Mr. Smith told
responding officers that “he had been shot and that he was unable to move.” When asked
by the officer who shot him, Mr. Smith said “that he was being chased down . . . by Quay
Quay and Jerry Lawler and that they were in a blue Saturn.” Mr. Smith was taken to a
hospital. Mr. Smith told a detective just before he went to surgery that “Quay Quay and
Jerry Lawler” were the shooters. Mr. Smith was in surgery for fourteen hours. Mr.
Smith testified at trial that he had a good view of who was shooting at his car and that he
had “[n]o doubt in [his] mind” that it was the Defendant and co-defendant Houston.
After his surgery, Mr. Smith was shown two photographic lineups, and he
identified the Defendant and co-defendant Houston as the shooters. Mr. Smith also spoke
to detectives three days after his surgery. Mr. Smith gave a formal statement and again
identified the Defendant and co-defendant Houston as the shooters. Mr. Smith testified
that, in total, he has had “[f]our or five” surgeries due to the gunshot wound he suffered
to his back. Mr. Smith explained that the bullet “shattered” his bladder, “punctured [his]
kidney, shattered pieces of [his] spine,” and caused an infection. Mr. Smith estimated
that he spent a total of forty-five to fifty days in the hospital.
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After he returned home from the hospital, Mr. Smith received a phone call from
the Defendant. Mr. Smith testified that the Defendant asked him if he had “receive[d]
anything like some money or whatnot,” and that he told the Defendant that he “hadn’t
received anything and hung up the phone.” Mr. Smith denied ever asking the
Defendant’s family for money. Mr. Smith’s estranged wife, Shurvonder Smith, testified
that she was approached by a man named Derrick at the hospital who “wanted [her] to
know that they wanted to offer [Mr. Smith] some money not to testify or go to court.”
According to Ms. Smith, “several offers were made to” Mr. Smith. Ms. Smith testified
that she overheard a phone call during which Mr. Smith was offered $10,000 “not to turn
in Quay Quay and Jerry Lawler.” Ms. Smith asserted that Mr. Smith never accepted any
of these offers.
An autopsy was performed on Mr. Blockmon’s body by Doctor Miguel Laboy, an
expert in forensic pathology. Mr. Blockmon suffered a gunshot wound of indeterminate
range to his “left back.” The bullet traveled “from back to front and slightly left to right.”
The bullet fractured one of Mr. Blockmon’s ribs, perforated his left lung, and lacerated
his heart. Dr. Laboy found “pieces of bullet embedded in the muscle of [Mr.
Blockmon’s] heart.” Mr. Blockmon also suffered a gunshot wound to his right forearm
that fractured his radius. Additionally, Dr. Laboy found “multiple lacerations and
abrasions on the shoulder, back[,] and left leg from small fragments of metallic material.”
The toxicology report revealed the presence of “cannabinoids” in Mr. Blockmon’s system
at the time of his death. Dr. Laboy opined that Mr. Blockmon’s manner of death was
homicide with the cause of death being “gunshot wound[s] to the back and right arm.”
There were approximately eleven bullet holes in the exterior of Mr. Smith’s car.
Additionally, the rear driver side window and the rear passenger side tire were shot out.
Police investigators recovered a bullet fragment on the car’s dashboard by the steering
wheel and a second bullet fragment from the rear passenger side tire. The investigators
also found seven cartridge casings and a third bullet fragment in the street near Mr.
Smith’s car. An additional bullet fragment was recovered from Mr. Blockmon’s jacket
during the autopsy of his body. Later forensic testing on the cartridge casings and bullet
fragments by the Tennessee Bureau of Investigation revealed that they were all
7.62x39mm caliber and had been fired by the same gun. 7.62x39mm caliber ammunition
is typically used in assault rifles such as an AK-47. Investigators were never able to
recover the weapons used in the shooting.
Recordings of the Defendant’s jail phone calls from March 14, 23, and 24, 2011,
were played for the jury. In the recordings, the Defendant discussed the fact that if Mr.
Smith did not testify, then his case would likely be dismissed. The Defendant also
instructed several people to call Mr. Smith and offer him money not to testify. A
recording of the Defendant’s March 15, 2011 jail phone calls was also played for the
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jury. In that recording, the Defendant called Mr. Smith and asked him if “Bo” had
contacted him. When Mr. Smith said no one had called him, the Defendant told Mr.
Smith that he would “make sure” someone called Mr. Smith. The Defendant then called
“Bo” and instructed “Bo” to call Mr. Smith and “[g]ive him the money.”
The Defendant’s uncle, Leotha Williams, testified on the Defendant’s behalf at
trial. Mr. Williams testified that on January 17, 2011, the Defendant lived with him and
that the Defendant spent the day with the Defendant’s girlfriend in Mr. Williams’s
apartment. Mr. Williams claimed that the Defendant and his girlfriend did not leave the
apartment until 1:00 or 2:00 p.m. that afternoon. Mr. Williams asserted that he
remembered that day because it was Martin Luther King Jr. Day and that the Defendant
celebrated the day “like [it was] his birthday” because the Defendant “tried to live like
that.”
Brittany Junious testified that on January 17, 2011, she was the Defendant’s
girlfriend. Ms. Junious claimed that she spent the day with the Defendant in Mr.
Williams’s apartment “[s]itting around playing [d]ominoes, watching TV,” and that they
did not leave the apartment until after 4:00 p.m. that day. Mr. Junious admitted that she
had a federal conviction from 2016 for conspiracy to possess marijuana.
Based upon the foregoing, the jury convicted the Defendant as charged of first
degree premeditated murder, attempted first degree murder, and employment of a firearm
during the commission of a dangerous felony. The trial court later imposed a total
effective sentence of life plus twenty-six years. The Defendant now appeals to this court.
ANALYSIS
I. Sufficiency of the Evidence
The Defendant contends that the evidence was insufficient to sustain his
conviction for first degree premeditated murder. The Defendant argues that the State
failed to prove the element of premeditation and that the jury “infer[red] premeditation
from the circumstances of the murder.” The State responds that the evidence was
sufficient to sustain the Defendant’s conviction for first degree premeditated murder.
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 that 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);
-5-
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in 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).
Premeditated first degree murder 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).
Premeditation is an act done after the exercise of reflection and judgment.
Premeditation means that the intent to kill must have been formed prior to
the act itself. It is not necessary that the purpose to kill pre-exist in the
mind of the accused for any definite period of time.
Tenn. Code Ann. § 39-13-202(d) (internal quotations omitted).
The element of premeditation only requires the defendant to think “about a
proposed killing before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d
530, 541 (Tenn. 1992). The presence of premeditation is a question for the jury and may
be established by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d
at 660. Our supreme court has held that factors determining the existence of
premeditation include, but are not limited to, the following: the use of a deadly weapon
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upon an unarmed victim, the particular cruelty of the killing, declarations by the
defendant of an intent to kill, evidence of procurement of a weapon, preparations before
the killing for concealment of the crime, destruction or secretion of evidence of the
killing, and calmness immediately after the killing. See State v. Davidson, 121 S.W.3d
600, 614 (Tenn. 2003); Bland, 958 S.W.2d at 660. Additional factors cited by this court
from which a jury may infer premeditation include the lack of provocation by the victim
and the defendant’s failure to render aid to the victim. See State v. Lewis, 36 S.W.3d 88,
96 (Tenn. Crim. App. 2000).
Contrary to the assertion in the Defendant’s brief, “Tennessee cases have long
recognized that premeditation may be proved by circumstantial evidence” because
“premeditation involves the defendant’s state of mind, concerning which there is often no
direct evidence.” Davidson, 121 S.W.3d at 614-15. Here, the evidence of premeditation
was overwhelming. Co-defendant Houston had grown increasingly angry at the fact that
Mr. Blockmon had not fixed his car. Immediately before the shooting, co-defendant
Houston called Mr. Smith looking for Mr. Blockmon and left a “very angry and
threatening” message. Co-defendant Houston and the Defendant saw Mr. Smith’s car at
a stop sign and pulled up next to it “on the wrong side of the street” to confront Mr.
Smith and Mr. Blockmon. When Mr. Blockmon said that he was not going to fix
co-defendant Houston’s car “right now,” the Defendant said something that Mr. Smith
could not hear as Mr. Smith drove away.
A few seconds later, co-defendant Houston and the Defendant began shooting at
Mr. Smith and Mr. Blockmon. Co-defendant Houston was using a handgun while the
Defendant was “hanging out the window with [an] assault rifle.” Co-defendant Houston
and the Defendant continued to fire upon Mr. Smith and Mr. Blockmon as they attempted
to flee. Mr. Smith was eventually struck by a bullet, went “numb,” and crashed his car.
Co-defendant Houston and the Defendant pulled up beside the car and continued
shooting. They then drove away, leaving Mr. Blockmon dead and Mr. Smith wounded
and unable to get out of the car. After being arrested, the Defendant contacted Mr. Smith
and had others contact Mr. Smith offering to pay him not to testify. We conclude that
there was sufficient circumstantial evidence to establish the element of premeditation.
Accordingly, the evidence was sufficient to sustain the Defendant’s conviction for first
degree premeditated murder.
II. Disqualification of the Prosecutor
The Defendant contends that the trial court abused its discretion in denying his
motion to disqualify one of the prosecutors, Assistant District Attorney General Pamela
Stark. After the Defendant’s first trial, Ms. Stark testified at a sentencing hearing for Mr.
Smith. The Defendant argues that this constituted an actual conflict of interest or created
an appearance of impropriety. The Defendant further argues that Ms. Stark’s testimony
-7-
on behalf of Mr. Smith made her a necessary witness at the Defendant’s retrial. The State
responds that the trial court did not abuse its discretion in denying the Defendant’s
motion to disqualify Ms. Stark.
Prior to retrial, the Defendant filed a motion to disqualify Ms. Stark because she
had testified at a sentencing hearing for Mr. Smith. At the hearing on the Defendant’s
motion, Ms. Stark asserted that the sentencing hearing occurred after Mr. Smith had
testified at the first trial and the Defendant had been convicted. Ms. Stark further
asserted that Mr. Smith never asked her to testify at his sentencing hearing and that she
was unaware that Mr. Smith’s case was pending when Mr. Smith testified at the
Defendant’s original trial. According to Ms. Stark, she was asked by Mr. Smith’s
attorney to testify at the sentencing hearing and she agreed to as a professional courtesy.
Ms. Stark asserted that she played no role in Mr. Smith’s plea negotiations with the State
and that she did not request any particular sentence for Mr. Smith. Ms. Stark further
asserted that her testimony at Mr. Smith’s sentencing hearing was limited to the facts of
this case and that Mr. Smith testified at the original trial despite being threatened and
offered money not to. The trial court denied the Defendant’s motion, concluding that Ms.
Stark’s testimony did not create a conflict of interest and that the Defendant could cross-
examine Mr. Smith about any favorable treatment he received from the State.
At retrial, Mr. Smith admitted that he had numerous prior felony convictions. Mr.
Smith was convicted of drug possession “third offense” in the early 2000s. Around the
same time, Mr. Smith was also convicted of reckless homicide and two counts of
attempted voluntary manslaughter. In 2010, Mr. Smith pled guilty to “a felony marijuana
charge” and received a sentence of three years’ probation. In December 2010, Mr. Smith
was arrested for felony cocaine possession. Mr. Smith was again arrested for felony
cocaine possession in July 2011. Mr. Smith testified that his probation for his 2010
marijuana conviction was revoked as a result of the cocaine possession charges and that
he “went into custody and did [sixteen] and a half months.” Mr. Smith pled guilty to the
two cocaine charges in 2012 and received a total effective sentence of six years’
probation. Finally, Mr. Smith pled guilty to being a convicted felon in possession of a
firearm in 2016 and received another six-year probationary sentence.
Mr. Smith denied that his testimony was “for sale” or that he was “hoping to gain
a benefit from . . . the State of Tennessee with [his] testimony.” Mr. Smith admitted that
Ms. Stark testified at his sentencing hearing for his 2012 cocaine possession convictions.
However, Mr. Smith claimed that he did not ask her to testify at his sentencing hearing
and that he did not know that she was going to testify “until she walked through the
door.” Mr. Smith testified that he never asked for a deal from the State, that he was never
promised a deal with the State, and that he did not tell Ms. Stark about the then pending
cocaine charges because “it was none . . . of [her] business to know that.”
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Mr. Smith further testified that he had been in jail serving his sentence for his
marijuana possession conviction until just before he testified at the original trial.5 Mr.
Smith’s sentencing hearing occurred after his testimony in the original trial. Mr. Smith
was asked on cross-examination about specific portions of Ms. Stark’s testimony at his
sentencing hearing. Mr. Smith admitted that his probation for the 2012 cocaine
possession convictions was never violated and that he had served no jail time on those
convictions despite his being convicted of a new offense and being arrested on two other
charges. However, Mr. Smith testified that there was a probation violation warrant
pending at the time of trial.6
“In determining whether to disqualify an attorney in a criminal case, the trial court
must first determine whether the party questioning the propriety of the representation met
its burden of showing that there [was] an actual conflict of interest.” State v. White, 114
S.W.3d 469, 476 (Tenn. 2003). In the absence of an actual conflict of interest, the trial
court must also “consider whether [the] conduct has created an appearance of
impropriety” necessitating disqualification of the attorney. State v. Culbreath, 30 S.W.3d
309, 312-13 (Tenn. 2000). We review a trial court’s ruling on a motion to disqualify an
attorney for an abuse of discretion. White, 114 S.W.3d at 475.
An actual conflict of interest “includes any circumstances in which an attorney
cannot exercise his or her independent professional judgment free of ‘compromising
interests and loyalties,’” such as an attorney with multiple employers that are likely to
cause the attorney to represent “differing interests.” White, 114 S.W.3d at 476. An
actual conflict of interest would also exist when an attorney has been previously exposed
“to confidential case-related communications” involving the opposing party. State v.
Tate, 925 S.W.2d 548, 554 (Tenn. Crim. App. 1995). There is no evidence that Ms.
Stark’s testifying at Mr. Smith’s sentencing hearing affected her ability to exercise her
independent professional judgment with respect to the Defendant’s case or gave her
access to confidential case-related materials. Accordingly, we concluded that Ms. Stark’s
actions did not create an actual conflict of interest.
An appearance of impropriety exists “‘in those situations in which an ordinary
knowledgeable citizen acquainted with the facts would conclude that the . . .
representation poses substantial risk of disservice to either the public interest or the
interest of one of the clients.’” White, 114 S.W.3d at 477 (alteration in original) (quoting
5
The jury was made aware that there were prior proceedings in this case, but not that the Defendant had
been previously tried on these charges.
6
At the Defendant’s motion for new trial hearing, Ms. Stark asserted that she had been subpoenaed to
testify at a sentencing hearing for Mr. Smith in federal court and at a bond hearing in state court.
However, this does not affect our analysis of the issue as these are matters that occurred after the
Defendant’s trial and conviction.
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Clinard v. Blackwood, 46 S.W.3d 177, 187 (Tenn. 2001)). Here, Ms. Stark testified at a
sentencing hearing for Mr. Smith after the Defendant’s first trial and conviction. Mr.
Smith’s case, the 2012 cocaine possession charges, was unrelated to the Defendant’s
case. Ms. Stark was originally unaware of Mr. Smith’s charges, took no part in his plea
negotiations, and did not request any particular sentence for Mr. Smith. Instead, Ms.
Stark’s testimony was limited to the facts of this case and Mr. Smith’s role as a witness at
the Defendant’s first trial. As such, we conclude that Ms. Stark’s actions did not create
an appearance of impropriety that would require her disqualification from the
Defendant’s retrial.
Tennessee Rule of Professional Conduct 3.7 provides that “[a] lawyer shall not act
as an advocate at a trial in which the lawyer is likely to be a necessary witness . . . .”
Tenn. R. Sup. Ct. Rule 8, RPC 3.7(a). However, a lawyer is not a necessary witness “if
the substance of their testimony can be elicited from other witnesses.” State v. Rebecca
Michelle Spears, Alias, No. E2017-01836-CCA-R9-CD, 2018 WL 3528315, at *4 (Tenn.
Crim. App. July 23, 2018) (internal quotation marks omitted) (quoting People v. Tesen,
739 N.W.2d 689, 698 (Mich. Ct. App. 2007)). Here, Mr. Smith was thoroughly
cross-examined about his criminal record, about the fact that he received multiple
alternative sentences since his testimony in the first trial, about Ms. Stark’s testimony at
his sentencing hearing for the 2012 cocaine possession convictions, and about the fact
that his probation for those convictions was never violated despite his having been
convicted of a new offense and arrested multiple times. Therefore, Ms. Stark was not a
necessary witness in the Defendant’s retrial. Accordingly, we conclude that the trial
court did not abuse its discretion in denying the Defendant’s motion to disqualify Ms.
Stark.
III. Racial Composition of the Jury Venire
The Defendant contends that African-Americans were improperly excluded from
the jury venire. The Defendant argues that only six “of the forty-five members” of the
jury venire were African-Americans and that this is out of proportion with the
African-American population of Shelby County. The State responds that the Defendant
has waived this issue by failing to make appropriate references to the record and
providing no citations to support “the figures that he presents with regard to . . . the
Shelby County population.”
The Defendant has waived plenary review of this issue by failing to make
appropriate references to the record to support his factual allegations. See Tenn. Ct.
Crim. App. R. 10(b) (“Issues which are not supported by . . . appropriate references to the
record will be treated as waived in this court”). Additionally, the only references to the
racial composition of the jury venire are statements made by defense counsel in his
motion for new trial and at the motion for new trial hearing. Defense counsel’s assertions
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are “no substitute for a properly developed record.” State v. Hugh Williams, No. 02C01-
9209-CR-00220, 1994 WL 553420, at *7 (Tenn. Crim. App. Oct. 12, 1994).
Accordingly, we review this issue solely for plain error.
The doctrine of plain error applies when all five of the following elements have
been established:
(1) the record clearly establishes what occurred in the trial court; (2) a clear
and unequivocal rule of law was breached; (3) a substantial right of the
accused was adversely affected; (4) the issue was not waived for tactical
reasons; and (5) consideration of the error is necessary to do substantial
justice.
State v. Minor, 546 S.W.3d 59, 67 (Tenn. 2018). A defendant’s failure to establish any
of these criteria requires denial of relief under the plain error doctrine, and “an appellate
court need not consider all criteria when the record demonstrates that one of them cannot
be established.” Id. “An error would have to [be] especially egregious in nature, striking
at the very heart of the fairness of the judicial proceeding, to rise to the level of plain
error.” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006).
Plain error relief for this issue is not warranted because the Defendant has failed to
establish that a clear and unequivocal rule of law was breached. Minor, 546 S.W.3d at
67. “[S]election of a petit jury from a representative cross-section of the community is an
essential component of the Sixth Amendment right to a jury trial.” State v. Bell, 745
S.W.2d 858, 860 (Tenn. 1988). In order to establish a prima facie violation of this
requirement, a defendant must show “1) that the allegedly excluded group is a distinctive
group in the community; 2) that its representation on the venire is not fair and reasonable
in relation to its numbers in the community; and 3) that the under representation resulted
from systematic exclusion.” State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989)
(citing Duren v. Mississippi, 439 U.S. 357, 364 (1979)).
As noted above, the record contains no evidence regarding the racial composition
of the jury venire or how representative it was in relation to the population of Shelby
County. Moreover, the Defendant concedes in his brief that he has no proof that the
method used in Shelby County to select jury venires “systematically excludes . . .
African-Americans.” As such, the Defendant has failed to establish a prima facie
violation. Accordingly, we conclude that plain error relief for this issue is not warranted.
IV. “Misleading” the Jury
The Defendant contends that the State “intentionally misled the jury” when the
prosecutor “elicited testimony that [Mr. Smith]” had previously served “sixteen months”
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in jail. The Defendant argues that the judgment forms for Mr. Smith’s 2012 cocaine
possession convictions reflect that he “was not incarcerated” and that, when asked on
cross-examination, Mr. Smith stated that he had “served no jail time on two drug arrests.”
The State responds that the Defendant has waived this issue by failing to cite to the
record or any legal authority to support his argument.
The Defendant has waived plenary review of this issue by failing to cite any legal
authority to support his argument and by failing to make appropriate references to the
record to support his factual allegations. See Tenn. Ct. Crim. App. R. 10(b) (“Issues
which are not supported by . . . citation to authorities[] or appropriate references to the
record will be treated as waived in this court”). Additionally, the Defendant failed to
make a contemporaneous objection to Mr. Smith’s testimony.7 See Tenn. R. App. P.
36(a) (not requiring that relief be granted “to a party . . . who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error”). As
such, we review this issue solely for plain error.
Here, the Defendant has failed to establish that a substantial right of the accused
was adversely affected. Minor, 546 S.W.3d at 67. When Mr. Smith testified that he had
gone “into custody and did [sixteen] and a half months,” he was referring to his 2010
marijuana possession conviction and not the two cocaine possession convictions from
2012. Mr. Smith’s probation for his 2010 conviction was revoked as a result of the
cocaine possession charges that he later pled guilty to in 2012. The Defendant provides
no explanation as to why he believes that Mr. Smith’s service for an earlier, unrelated
conviction should have been reflected on the judgment forms for his 2012 convictions.
Moreover, Mr. Smith repeatedly admitted that his probation for the 2012 cocaine
possession convictions was never violated and that he served no jail time on those
convictions despite his being convicted of a new offense and being arrested on two other
charges. Accordingly, we conclude that plain error relief for this issue is not warranted.
V. Hearsay
The Defendant contends that the trial court erred in allowing the admission of
hearsay. The Defendant argues that Ms. Smith’s testimony that she was approached by a
man named Derrick who “wanted [her] to know that they wanted to offer [Mr. Smith]
some money not to testify or go to court” was inadmissible hearsay. The State responds
7
Mr. Smith twice mentioned that he had served “[sixteen] and a half months” during his testimony. The
first statement occurred during the State’s direct examination and the second statement occurred during
the State’s redirect examination. The Defendant makes no mention of the first statement in his brief. The
Defendant alleges in his brief that trial counsel objected to the second statement and that the trial court
“ruled on the objection, but there was not a curative instruction to that effect.” The Defendant has
provided no citation to the record to support this assertion. Our reading of the record reveals no such
exchange.
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that the Defendant has waived this issue by failing to make a timely objection to Ms.
Smith’s testimony.
Ms. Smith initially testified on direct examination that “somebody” had
approached her while she was at the hospital to convey the offer to pay Mr. Smith not to
identify the shooters. The Defendant did not object to this testimony. On
cross-examination, defense counsel asked Ms. Smith several questions about the
individual who had approached her, including if his name was Derrick, if she knew his
last name, if she knew him, and if she knew who he was conveying the offer for. At a
later pause in the trial proceedings, defense counsel stated that he did not object to Ms.
Smith’s testimony because he did not want to draw attention to it, but moved the trial
court to strike her testimony as inadmissible hearsay. The trial court concluded that the
Defendant’s motion to strike was untimely and denied it.
Generally, failure to make a contemporaneous objection to the admission of
evidence will waive plenary review of that issue. See Tenn. R. App. P. 36(a) (not
requiring that relief be granted “to a party . . . who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”). Nevertheless, a
motion to strike “can serve as a late objection and ‘may properly be made at any time
prior to the formal closing of the evidentiary record and the final resting of the case by all
parties.’” State v. Jeffrey Leo Rochelle, No. M2011-02639-CCA-R3-CD, 2013 WL
285747, at *11 (Tenn. Crim. App. Jan. 25, 2013) (quoting State v. Pilkey, 776 S.W.2d
943, 952-53 (Tenn. 1989)). However, delaying the motion to strike in order to allow the
Defendant to cross-examine the witness about the alleged inadmissible testimony will
waive plenary review of the issue. Id. Accordingly, we review this issue solely for plain
error.
At the outset, we note that “rarely will plain error review extend to an evidentiary
issue.” State v. Jonathan Mitchell Grimes, No. W2014-00786-CCA-R3-CD, 2015 WL
3929694, at *10 (Tenn. Crim. App. June 26, 2015) (quoting State v. Ricky E. Scoville,
No. M2006-01684-CCA-R3-CD, 2007 WL 2600540, at *2 (Tenn. Crim. App. Sept. 11,
2007)). Here, plain error relief is not warranted because the Defendant has failed to
demonstrate that the issue was not waived for tactical reasons. Minor, 546 S.W.3d at 67.
In making his motion to strike, defense counsel stated that he did not object to Ms.
Smith’s testimony because he did not want to draw attention to it. Additionally, defense
counsel thoroughly cross-examined Ms. Smith about the exchange at the hospital in an
attempt to impeach her testimony. Accordingly, we conclude that plain error relief for
this issue is not warranted.
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VI. Jail Phone Call Transcripts
The Defendant contends that the trial court erred by allowing the jury to review
transcripts of recorded jail phone calls as those recordings were played. The Defendant
argues that the transcripts were inaccurate because they were not made by “a professional
court reporter or a transcriptionist” and because “both parties could not agree on what
was being said in the recorded phone call[s].” The State responds that the trial court
properly instructed the jury on the use of the transcripts and did not err in allowing the
jury to review them while the recordings were played.
Prior to the admission of the Defendant’s recorded jail phone calls, defense
counsel objected to the transcripts provided by the State. Defense counsel argued that the
transcripts did not accurately reflect what was on the recordings and that the jury would
rely on the transcripts rather than listening to the recordings. The trial court reviewed the
recordings and the transcripts with the parties. Defense counsel objected to two instances
of the word “s--t.” The trial court stated that it did not think the use of the word “s--t”
would change the context of what was being said on the recording and overruled defense
counsel’s objections. At that point, defense counsel stated that there was no need to
continue reviewing the transcripts because the rest of his objections would have been
similar to the previous two. Prior to the recordings being played, the trial court instructed
the jury that the recordings, and not the transcripts, were the actual evidence. After the
recordings were played, the transcripts were taken from the jury, and the trial court again
instructed them that the transcripts were not evidence.
“It is well-settled in Tennessee that a transcript of a [recording] may be given to a
jury [when] the jury is instructed that the [recording], and not the transcript is the actual
evidence.” State v. Barnard, 899 S.W.2d 617, 623-24 (Tenn. Crim. App. 1994). Here,
the trial court properly instructed the jury that the recordings were the actual evidence
and that the transcripts were not. We are aware of no legal authority that requires a
transcript to be made by “a professional court reporter or a transcriptionist” before it can
be given to a jury, and the Defendant cites no such authority in his brief to support his
argument. Moreover, Tennessee law does not require the trial court to “authenticate” a
transcript “when there is a dispute concerning the transcript[’s] accuracy before it may be
used by the jury.” State v. Walker, 910 S.W.2d 381, 394 (Tenn. 1995). The Defendant’s
brief does not identify any alleged inaccuracies in the transcripts. Even if it did, the trial
court was not required to “authenticate” the transcript before giving the transcript to the
jury. Accordingly, we conclude that this issue is without merit.
VII. Photographic Display During the State’s Closing Argument
The Defendant contends that the State improperly displayed photographic exhibits
during its closing argument. The Defendant describes the display as “a slide show of the
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crime scene photographs on a loop during [the State’s] closing argument.” The
Defendant argues that this display constituted prosecutorial misconduct. The State
responds that the Defendant has waived this issue by failing to cite to the record or any
legal authority to support his argument.
The Defendant has waived plenary review of this issue by failing to make a
contemporaneous objection to the display. See Tenn. R. App. P. 36(a) (not requiring that
relief be granted “to a party . . . who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error”). Moreover, the
Defendant’s three-sentence argument in his brief contains no citations to the appellate
record or legal authority. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not
supported by . . . citation to authorities[] or appropriate references to the record will be
treated as waived in this court”). As such, we review this issue solely for plain error.
Plain error relief for this issue is not warranted because the record does not clearly
established what occurred in the trial court. Minor, 546 S.W.3d at 67. In addition to not
making a contemporaneous objection to the display, the Defendant made no offer of
proof as to what photographs were shown during the “slide show.” The Defendant
describes the photographs as “crime scene photographs” that were displayed “on a loop
during [the State’s] closing argument.” In denying the Defendant’s motion for new trial,
the trial court stated that the photographs were all trial exhibits. However, there is
nothing in the record indicating which of the numerous photographs entered into
evidence during the trial were displayed during the State’s closing argument or how they
were displayed. Accordingly, we conclude that plain error relief for this issue is not
warranted.
VIII. Withheld Evidence
The Defendant contends that the State withheld evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Specifically, the Defendant argues that the State withheld
a “statement which [was] alleged [to be] a threat by the [Defendant] against [Mr.] Smith.”
However, the record contains no such statement by the Defendant. Based upon the
citations to the record in the Defendant’s brief, it appears that the Defendant is referring
to the voicemail left by co-defendant Houston on the day of the shooting. The State
responds that there was no Brady violation.
The Defendant has waived this issue by failing to include it in his motion for new
trial. See Tenn. R. App. P. 3(e) (providing that “no issue presented for review shall be
predicated upon . . . misconduct of jurors, parties or counsel . . . upon which a new trial is
sought, unless the same was specifically stated in a motion for new trial, otherwise such
issues will be treated as waived”). Plenary review having been waived, our review is
limited to plain error.
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Plain error relief for this issue is not warranted because the Defendant has failed to
establish that a clear and unequivocal rule of law was breached. Minor, 546 S.W.3d at
67. A Brady violation occurs when the State suppresses evidence that is exculpatory or
favorable to the Defendant. State v. Jackson, 444 S.W.3d 554, 594 (Tenn. 2014). The
evidence at issue here was inculpatory because it was circumstantial evidence
establishing the premeditation of the shooting.
Additionally, Tennessee courts analyze delayed disclosure differently from
outright suppression, focusing on the prejudice of the delay. See State v. Twain Demario
Vaughn, No. M2006-01659-CCA-R3-CD, 2008 WL 110094, at *6 (Tenn. Crim. App.
Jan. 9, 2008). There is no evidence in the record before us that the Defendant was
prejudiced by any delay in the disclosure of the fact that co-defendant Houston left a
threatening voicemail on Mr. Smith’s phone on the day of the shooting. Accordingly, we
conclude that plain error relief for this issue is not warranted.
IX. Cumulative Error
The Defendant contends that he is entitled to a new trial based upon cumulative
error. The cumulative error doctrine applies to circumstances in which there have been
“multiple errors committed in trial proceedings, each of which in isolation constitutes
mere harmless error, but when aggregated, have a cumulative effect on the proceedings
so great as to require reversal in order to preserve a defendant’s right to a fair trial.” State
v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). However, circumstances which would warrant
reversal of a conviction under the cumulative error doctrine “remain rare” and require
that there has “been more than one actual error committed in the trial proceedings.” Id. at
76-77. Having discerned no error in the trial proceedings, there can be no cumulative
error. Accordingly, we conclude that this issue is without merit.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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