State of Tennessee v. Dantario Burgess, Rodriguez McNary and Joseph Jones-Cage ( 2017 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 2, 2016
STATE OF TENNESSEE v. DANTARIO BURGESS, RODRIGUEZ
MCNARY and JOSEPH JONES-CAGE
Appeal from the Criminal Court for Shelby County
No. 14-02782 J. Robert Carter, Jr., Judge
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No. W2015-00588-CCA-R3-CD - Filed January 31, 2017
___________________________________
AND
DANTARIO BURGESS v. STATE OF TENNESSEE1
Appeal from the Criminal Court for Shelby County
No. 14-02782 J. Robert Carter, Jr., Judge
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No. W2015-02398-CCA-R3-ECN
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A Shelby County jury convicted the Defendants, Dantario Burgess, Rodriguez McNary,
and Joseph Jones-Cage, of two counts of attempted first degree murder, one count of
aggravated assault, and one count of reckless endangerment. Mr. Jones-Cage and Mr.
McNary also were convicted of employing a firearm during the commission of a
dangerous felony. Mr. Burgess also was convicted of employing a firearm during the
commission of a dangerous felony having been previously convicted of a felony and of
possessing a firearm after having been convicted of a felony involving the use or
attempted use of violence. The trial court sentenced Mr. Burgess to an effective term of
fifty-five years, Mr. Jones-Cage to an effective term of fifty years, and Mr. McNary to an
effective term of forty-one years. On appeal, the Defendants raise the following issues
either collectively or individually: (1) the trial court erred in denying Mr. Burgess‘
1
While the direct appeal in Case No. W2015-00588-CCA-R3-CD was pending in this court, Mr.
Burgess filed a pro se petition for writ of error coram nobis. The trial court denied the petition, and Mr.
Burgess filed a pro se notice of appeal. Mr. Burgess did not file a motion in this court seeking to stay his
appeal while the petition for writ of error coram nobis was pending in the trial court in accordance with
State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999). Nevertheless, we consolidate Mr. Burgess‘ direct
appeal with his appeal of the denial of coram nobis relief. See Mixon, 983 S.W.2d at 672.
motion to suppress a witness‘s identification of him in a photographic lineup and in
limiting the cross-examination of the victim during the suppression hearing; (2) the
failure to name the predicate felony in the indictment for employing a firearm during the
commission of a dangerous felony voids the conviction; (3) the evidence is insufficient to
support the convictions; (4) the trial court committed plain error in not allowing defense
counsel to impeach the victim‘s testimony at trial with her statement to the police; (5) the
malfunctioning of the recording equipment during the trial warranted a mistrial; (6) the
sentences of Mr. Burgess and Mr. McNary are excessive; (7) the cumulative effect of the
errors warrants a new trial; and (8) the trial court erred in denying Mr. Burgess‘ pro se
petition for writ of error coram nobis. We conclude that the evidence is insufficient to
support Mr. McNary‘s conviction for employing a firearm during the commission of a
dangerous felony and reverse the conviction. We remand the matter for a new trial on
possession of a firearm during the commission of a dangerous felony as a lesser-included
offense. We also remand the case for entry of corrected judgments reflecting that Mr.
Jones-Cage was convicted of attempted first degree murder in count one and is to serve
100 percent of his sentence for the firearm conviction in count three. We otherwise
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part, Reversed in Part, and Remanded
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.
Paul K. Guibao (on appeal) and Jada Brisentine (at trial), Memphis, Tennessee, and
Dantario Burgess, pro se (coram nobis proceedings), Mountain City, Tennessee, for the
appellant, Dantario Burgess.
Charles W. Gilchrist, Jr., Memphis, Tennessee, for the appellant, Rodriquez McNary.
Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal) and Alicia
Kutch (at trial), Assistant District Public Defenders, for the appellant, Joseph Jones-Cage.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney
General; and Paul Hagerman and Meghan Fowler, Assistant District Attorneys General,
for the appellee, State of Tennessee.
OPINION
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FACTUAL AND PROCEDURAL HISTORY
The evidence presented at trial established that on March 10, 2013, the Defendants
and co-defendant Benjamin Bohannon shot at a group of people at an apartment complex
and then fled in Mr. Jones-Cage‘s vehicle. The group included Mr. Demarcus Thomas,
Ms. Shanna Niter, Ms. Niter‘s two year-old son J.N.,2 Ms. Brittany Hervery, and Ms.
Hervery‘s two-month-old daughter J.H. Mr. Thomas sustained multiple gunshot wounds
to the face and head. He survived the shooting but requires twenty-four-hour care as a
result of the injuries. Ms. Niter sustained a graze gunshot wound to her right side.
The State’s Proof
Ms. Shanna Niter testified that on March 10, 2013, at approximately 10:30 or
11:00 a.m., Mr. Thomas was at her apartment at the Hillview Apartments cooking for
her, J.N., and her daughter, who was a few months old. Mr. Thomas burned bacon, and
as a result, Ms. Niter opened the windows and doors to the apartment. J.N. ran outside in
his underwear, and Ms. Niter chased after him.
Ms. Niter stated that she saw Mr. Jones-Cage or ―Trey‖ in a Ford Explorer parked
outside of her apartment and that he called out to her. The vehicle was parked so that the
passenger side of the vehicle was facing Ms. Niter and the front of the vehicle was facing
a dumpster. Ms. Niter said that as she approached the vehicle, she had a strange feeling
and the ―hairs on the back of [her] neck stood up.‖ She stated that Mr. Jones-Cage was
sitting in the driver‘s seat and that three other men, whom she had never met, were inside
the vehicle. The front window on the passenger side was down, and the backseat window
on the passenger side was halfway down. Ms. Niter said that she could see each of the
men inside of the vehicle and that the men looked at her as if they did not want her to
approach them. She stated that she did not walk all the way up to the truck.
At trial, Ms. Niter identified Mr. Burgess as the man who was sitting on the back
passenger side and Mr. McNary as the man who was sitting on the back driver‘s side of
the vehicle. Ms. Niter said the man who was sitting on the front passenger side was not
at the trial.
Ms. Niter testified that Mr. Jones-Cage asked her where her cousin, ―Little Glen,‖
was and told her to call ―his b**** a**.‖ Ms. Niter told Mr. Jones-Cage that ―Little
Glen‖ was not there and that she was unable to contact him. At that time, J.N. was
standing next to Ms. Niter; Mr. Thomas was standing on steps on the opposite side of Ms.
Niter; and Ms. Hervery was standing nearby and holding her baby who was in a car seat.
2
It is the policy of this court to refer to minor victims by their initials.
-3-
Ms. Niter stated that Mr. Thomas told Mr. Jones-Cage and the other men to leave
because children were in the area. Mr. Jones-Cage stated, ―[F]*** them b****** and
their kids.‖ Ms. Niter said that Mr. Jones-Cage then ―upped‖ a small black gun and that
he and the passengers began shooting. She saw Mr. Jones-Cage, Mr. Burgess, and the
man in the front passenger seat shooting. She saw Mr. McNary with a gun but was not
sure whether he was shooting. The man in the front passenger seat was hanging out of
the window and shooting, while Mr. Jones-Cage was leaning and shooting from the
driver‘s seat out of the front passenger window. Ms. Niter said that from ―the way that
[Mr. Jones-Cage] was shooting[,] he could [have] shot the person . . . sitting next to him.‖
Mr. Burgess was shooting a large black gun out of the back passenger side window.
Ms. Niter described the shootings as ―like a war.‖ She said one of the bullets hit
Mr. Thomas in the face and that ―stuff smashed everywhere.‖ Mr. Thomas turned
around, and another bullet hit him in the back of his head and knocked him down. Ms.
Hervery dropped her baby, who was in a carseat, and began running back and forth while
screaming. Ms. Niter said she was in shock and was unable to move. She heard bullets
hitting the bricks behind her. She then grabbed her son and began running. During the
shooting, Ms. Niter‘s baby was sitting in a highchair inside her apartment. Ms. Niter
later discovered that bullets had entered the apartment and struck the highchair.
Ms. Niter testified that a bullet struck her on the right side near her rib cage. The
bullet knocked several layers of skin away from the area, and Ms. Niter had a scar as a
result of the injury. She later had a tattoo placed over the scar and said that she could still
feel ―fragments or something in there.‖
Ms. Niter stated that when the police arrived, Mr. Thomas was lying on the ground
and ―fighting for his life.‖ His eyeball was no longer in its socket, and his nose was
gone. When Mr. Thomas tried to breathe, blood shot out from the area where his nose
had been.
Ms. Niter received medical attention and gave officers a description of the vehicle
involved. She later gave a statement to the police, identified Mr. Jones-Cage, and gave a
brief description of the passengers. She later identified the Defendants and the front seat
passenger in photographic lineups.
On cross-examination, Ms. Niter testified that she called Mr. Jones-Cage earlier in
the day. She explained that ―Little Glen‖ made a comment about Mr. Jones-Cage on
Facebook and that Mr. Jones-Cage told ―Little Glen‖ to have Ms. Niter bring him to Mr.
Jones-Cage‘s house so that Mr. Jones-Cage could ―f*** him up.‖ Ms. Niter stated that
Mr. Jones-Cage had been pursuing ―Little Glen‖ for two years.
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Ms. Niter acknowledged that while she identified Mr. Jones-Cage on the day of
the shooting, she did not identify the passengers until a later date. She did not remember
whether she told the police that one of the men had a tattoo on his face and did not recall
testifying at the preliminary hearing that she never told the police that one of the men had
a scar or an identifying mark between his eyes. Ms. Niter acknowledged that Mr.
Burgess had a ―very noticeable‖ identifying mark between his eyes. She said the back
passenger window to the vehicle was tinted and was only rolled halfway down.
Ms. Brittany Hervery testified that on April 10, 2013, she and her two-month-old
daughter, J.H., went to Ms. Niter‘s apartment because Ms. Hervery was planning to cook
breakfast for Ms. Niter, Ms. Niter‘s two children, and Mr. Thomas. After Ms. Hervery
arrived, a green four-door truck driven by Mr. Jones-Cage pulled up. Ms. Hervery said
she had known Mr. Jones-Cage for a few years. She saw three other people inside the
vehicle. Mr. Jones-Cage asked Ms. Niter, ―Where‘s Little Glen, b**** a**?‖ Ms. Niter
told Mr. Jones-Cage that ―Little Glen‖ was not there, and Mr. Jones-Cage instructed Ms.
Niter to call him. Ms. Niter told him to wait and began walking away from the vehicle.
Ms. Hervery stated that Mr. Thomas came outside after hearing the commotion
and asked Ms. Hervery what was occurring. Ms. Hervery told him that the men were
looking for ―Little Glen.‖ Mr. Thomas told the men to leave because children were
outside. Ms. Hervery said Mr. Thomas did not threaten the men. She also said that many
children were outside and that she was holding her baby. Mr. Jones-Cage replied,
―[F]*** you, those kids and them b******,‖ and he and some of the passengers began
shooting.
Ms. Hervery testified that the passenger in the front seat was shooting but was not
looking as he shot. Mr. Jones-Cage was reaching over the passenger and shooting out of
the window. Ms. Hervery said the man who was sitting in the backseat on the
passenger‘s side was leaning out of the car and shooting with a large gun. She did not
see the man sitting behind Mr. Jones-Cage shooting and did not get a good look at him.
Mr. Thomas was shot between the eyes and in the temple. Upon hearing the shots,
Ms. Hervery dropped her baby and crawled to Mr. Thomas to assist him. Someone
picked up Ms. Hervery‘s baby and carried her inside an apartment. Ms. Hervery got on
top of Mr. Thomas; the shooting stopped; and the men drove away. Ms. Hervery then
called 911. She said that Mr. Thomas‘s eye was on the ground, that his nose was
―opened up,‖ and that his blood was ―spewing‖ everywhere. Ms. Hervery and the
children were not injured.
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When the police officers arrived, Ms. Hervery told them what had occurred. The
officers later showed Ms. Hervery photographic lineups. She identified Mr. Jones-Cage
from the photographic lineup but was unable to identify the other defendants.
On cross-examination, Ms. Hervery testified that the back windows to Mr. Jones-
Cage‘s vehicle were tinted and that she did not see everyone clearly until the windows
were rolled down. She was unsure how far down the windows were rolled. She told
officers on the day of the shooting that she only saw Mr. Jones-Cage. An officer later
called her and asked whether she was certain about the information provided in her
statement. Ms. Hervery told the officer that one other person had a tattoo on his face.
She stated at trial that the man with the tattoo also was shooting from the vehicle.
Ms. Felita Caraway testified that in April 2013, she lived at the Hillview
Apartments on the second floor of a building that was separate from the building where
Ms. Niter‘s apartment was located. On April 10, 2013, she was inside her apartment
when she heard noises that sounded like firecrackers. She walked into her kitchen,
opened a cabinet door, shut the door, and then entered her living room. A bullet then
came through her kitchen window and traveled through the cabinet door that she had just
closed, through her bathroom, and into her bedroom. Ms. Caraway went outside and saw
the damage to her apartment and Mr. Thomas lying three steps away. Ms. Hervery was
trying to help Mr. Thomas.
Ms. Catrice Gordon lived on the first floor in the same apartment building as Ms.
Caraway and across from the building where Ms. Niter lived. On April 10, 2013, she was
outside with her three-year-old son and two-year-old daughter and saw Ms. Niter and Ms.
Hervery. Ms. Gordon testified that at some point, she took her daughter inside because
her daughter wanted to watch television. Her son remained outside playing with Ms.
Niter‘s son.
Ms. Gordon stated that she was standing in her kitchen when she heard gunfire.
She ran to the front door because her son was still outside. She said it sounded like a
―war‖ outside. Ms. Gordon‘s son was at the front door telling her that people were
shooting, and Ms. Niter was asking her for help and to get her son. Ms. Gordon retrieved
J.N. and ran back inside of her apartment. She said the shooting had stopped when she
went outside, and she saw blood all around Mr. Thomas.
Ms. Leslie Davis, Mr. Thomas‘s mother, testified that Mr. Thomas sustained
multiple gunshot wounds to his head. One bullet remained in his head, and his doctors
informed her that any surgery to remove the bullet could result in additional damage. He
cannot walk or move his right arm. He has limited movement of his left arm, is
somewhat limited in his speech, suffered memory loss, and is somewhat ―slower.‖ He is
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a permanent resident in a rehabilitation facility, is bedridden and blind, and requires
twenty-four-hour care.
Ms. Davis said that on the day of the shooting, her sister called her and informed
her that Mr. Thomas had been shot multiple times and had been transported to the
Regional Medical Center. Ms. Davis‘s sister then called her again and told her that part
of Mr. Thomas‘s face had been shot off, and Ms. Davis fainted. Ms. Davis went to the
Regional Medical Center and was allowed to see Mr. Thomas after a few hours. She said
that Mr. Thomas‘s head and face were wrapped in gauze and that his head was
―enormous.‖ Mr. Thomas remained in the trauma unit of the hospital for two months.
Ms. Davis said she did not work during that time because she never knew whether Mr.
Thomas would live.
Multiple surgeries were performed on Mr. Thomas‘s head to alleviate the swelling
in his brain, and he has a permanent shunt in his head. Ms. Davis said that Mr. Thomas
had a hole in the bridge of his nose that was approximately the size of a quarter. Doctors
removed the cartilage from Mr. Thomas‘s nose. Ms. Davis stated that the hole in Mr.
Thomas‘s nose was so deep that she could see his tonsils. Mr. Thomas‘s jawbone and
facial bones were shattered, and doctors had to wire his mouth shut and reconstruct his
jawbone. Ms. Davis said two different doctors advised her to place Mr. Thomas in
hospice care but that she refused.
After two months at the Regional Medical Center, Mr. Thomas was transferred to
an extended care program and then to another facility. He was on a ventilator and
unresponsive for months. He also required a feeding tube and lost a large amount of
weight as a result. Ms. Davis said that while Mr. Thomas no longer requires a ventilator
or a feeding tube, he is totally dependent on someone to care for him and will remain that
way for the rest of his life.
Officer Michael Gaines of the Memphis Police Department testified that he and
five other officers with the Airways Precinct Task Force responded to the scene of the
shooting. Upon his arrival, he saw a very large crowd of women and children in the
parking lot and an African American man lying in a drainage ditch between two
apartment buildings. The man was still alive, but the area of the top of his eyebrows to
the bottom of his nose was gone. Officer Gaines could see inside the man‘s skull.
Officer Dan Chambers placed pressure on the man‘s wound. When the man breathed out,
blood squirted out from the wound, over Officer Gaines‘s head, and onto his uniform.
After an ambulance arrived, the officers spoke to witnesses and surveyed the area.
Officer Gaines observed a large amount of shell casings littering the parking lot. He
stated that the casings were 7.62 by 39 millimeter casings, which are commonly used in
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AK-47, AK-74, and SKS style assault weapons. He explained that such rifles are
designed for combat and that their bullets can travel through walls and automobiles. He
stated that semiautomatic handguns and assault rifles eject casings when shot but that
revolvers do not.
Officer Gaines observed a second or third story apartment that appeared to have
been struck by gunfire. He entered the apartment and found that the bullet had penetrated
walls and was lying by the bed in a bedroom. He said the bullet was the type fired by an
assault rifle.
Officer Gaines stated that approximately thirty minutes to an hour after leaving the
scene, he received a call that a vehicle matching the description of the vehicle involved in
the shooting had been located four to five miles away from the apartment complex. The
green Ford Explorer was parked toward the back of a house that appeared to be vacant on
Leflore Street. Officer Gaines said the hood of the vehicle was still warm from recent
use.
Officer Gaines testified that the sergeant who was in charge of the case advised
him and other officers that Mr. Jones-Cage had been developed as a suspect and that his
residence also was located on Leflore Street. Officer Gaines and other officers went to
Mr. Jones-Cage‘s address five or six times over the course of multiple days, but they
never found him and were never allowed to search his house. Family members advised
the officers that they did not know where Mr. Jones-Cage was.
On cross-examination, Officer Gaines testified that a woman on the scene of the
shooting sustained a ―graze strike‖ or a minor abrasion. He believed that the woman was
treated on the scene by the fire department.
Officer Gaines acknowledged that he did not find a weapon at the scene of the
shooting. He said revolvers and single-shot pistols are the only two firearms of which he
was aware that did not eject casings. Rather, the shooter must physically remove the
casings and reload the firearm. Officer Gaines stated that some handguns with magazines
eject casings when shot. He also stated that while 7.62 by 39 millimeter bullets are
predominately used in ―battle rifles,‖ there are hundreds of rifles that can shoot multiple
calibers of bullets.
Officer Newton Morgan, a crime scene investigator with the Memphis Police
Department, testified that he collected sixteen shell casings and one bullet fragment from
the scene. The bullet fragment was found on the bed inside of an apartment where he
also observed bullet holes in the walls.
-8-
Special Agent Cervinia Braswell, a forensic scientist with the firearms
identification unit of the Tennessee Bureau of Investigation, was accepted by the trial
court as an expert in forensic firearms identification. She examined sixteen 7.62 by 39
millimeter rifle cartridge casings, which she said were generally used in ―AKA or AK-47
and SKS type firearms.‖ Special Agent Braswell determined that all sixteen cartridge
casings had been fired from the same firearm.
Special Agent Braswell also examined a bullet fragment and measured its lands
and groves. She entered the date into the General Rifling Characteristic Database, which
is a database compiled by the Federal Bureau of Investigation that generated a list of
firearms from which the bullet could have been fired. She said the measurements of the
bullet fragment were consistent with 7.62 by 39 millimeter bullets. She determined that
the same caliber firearm could have shot the casings and the bullet fragment. On cross-
examination, Special Agent Braswell acknowledged that she was unable to conclude that
the bullet and the casings were fired from the same firearm.
Officer David Payment with the crime scene investigation unit of the Memphis
Police Department testified that he processed the green Ford Explorer and lifted
fingerprints from the right rear exterior window on the passenger side of the vehicle.
Officer Payment did not find any gunshot residue, shell casings, or bullets inside of the
vehicle. He acknowledged that the lack of gunshot residue could indicate that the vehicle
had been wiped down.
On cross-examination, Officer Payment testified that the lack of gunshot residue in
a vehicle following a shooting was not unusual. He said the presence of gunshot residue
is dependent upon factors such as whether the vehicle was moving at the time of the
shooting, whether the windows were down, and whether the weapons were fired outside
of the vehicle. Officer Payment stated that he would expect to find gunshot residue in the
vehicle if the driver was shooting out of the passenger window. He also stated that if an
assault weapon is fired outside the window of a vehicle, he would expect to see gunshot
residue from the breech, which is located close to the trigger. He acknowledged that the
residue would blow away if the vehicle was moving.
Officer Payment stated that three fingerprints were lifted from the right rear
passenger window and that one fingerprint was lifted from the front passenger window.
He found papers and miscellaneous items inside of the vehicle.
Officer Robert Winston, a latent print examiner for the crime scene investigation
unit of the Memphis Police Department, was accepted by the trial court as an expert in
latent fingerprint examination. He determined that the fingerprints lifted from the green
Ford Explorer belonged to Benjamin Bohannon.
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Officer Shawn Hicks with the Memphis Police Department testified that Ms. Niter
identified Mr. McNary, Mr. Burgess, and Mr. Bohannon in photographic lineups on April
23, 2013. Mr. Burgess was later brought to the police department as a suspect. He was
advised of his rights, waived his rights, and agreed to speak to officers. Mr. Burgess said
that while he knew Mr. Jones-Cage, he did not socialize with him on a regular basis.
Officer Hicks said that Mr. Burgess initially denied that he had ever been inside Mr.
Jones-Cage‘s Ford Explorer. Mr. Burgess later admitted that he had been inside the
vehicle but denied that he was in the vehicle during the shooting. Mr. Burgess stated that
while he knew Mr. Bohannon, they were not close friends. When Officer Hicks
confronted Mr. Burgess with photographs on Instagram of Mr. Burgess and Mr.
Bohannon together, Mr. Burgess stated that the photographs did not mean that they were
good friends.
On cross-examination, Officer Hicks testified that Ms. Hervery was not able to
identify Mr. Burgess in a photographic lineup.
Sergeant Donald Adams with the Memphis Police Department testified that Ms.
Niter identified Mr. Jones-Cage in a photographic lineup on April 10, 2013. Sergeant
Adams interviewed Mr. Jones-Cage on April 22, following his arrest. Sergeant Adams
advised Mr. Jones-Cage of his rights, and Mr. Jones-Cage waived his rights and agreed to
speak to the officers. Mr. Jones-Cage‘s attorney, Kendra Tidwell, was present when he
gave a statement.
Sergeant Adams stated that Mr. Jones-Cage admitted that he and three other men
went to the apartment complex on April 10, 2013, in a green Ford Explorer to search for
―Little Glen.‖ Mr. Jones-Cage said that the other men fired twenty to thirty shots, but
that he did not fire any shots. He also said they fled the scene and hid the firearms in the
trunk of a Ford Crown Victoria. He stated that when the police officers located his
vehicle, he hid in an abandoned house and that the others jumped over a fence and ran.
Mr. Jones-Cage stated that a few days prior to the shooting, April Niter posted a
comment about him on Facebook, and ―Little Glen‖ responded that Mr. Jones-Cage ―was
going to f*** [her] off.‖ Mr. Jones-Cage sent a message to ―Little Glen‖ calling him ―a
little dusty TV stealing dude‖ and stating that he was the only person assisting April Niter
when she had issues with her car. Mr. Jones-Cage said that on the morning prior to the
shooting, he was assisting April Niter in her efforts to repair her car when he saw that
Shanna Niter had called him. He asked April Niter why Shanna Niter called him, and
April Niter stated that she wanted to talk to him about his message to ―Little Glen.‖ Mr.
Jones-Cage called Shanna Niter several times, but she did not answer. He also sent her a
text message.
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Mr. Jones-Cage stated that when he returned home, ―[a]nother guy‖ 3 was there.
Mr. Jones-Cage told the man that he planned to go to the Hillview Apartments to ―holler‖
at ―Little Glen.‖ The man did not want Mr. Jones-Cage to go there alone and agreed to
go with Mr. Jones-Cage. Mr. Jones-Cage said that they drove ―into the west side drive‖
and that the man got out of the car and began talking to someone. The man returned to
Mr. Jones-Cage‘s car and said that no one there knew ―Little Glen.‖ When they were
leaving the parking long, Mr. Jones-Cage saw three men, two of whom he knew. The
men approached Mr. Jones-Cage and the other man and ―did their handshakes.‖ The man
who was in the car with Mr. Jones-Cage asked the group whether they knew ―Little
Glen,‖ and the men responded that ―they don‘t f***‖ with the Hillview residents.
Mr. Jones-Cage told the officers that two of the men entered the backseat of his
vehicle while holding a black bag. Mr. Jones-Cage then drove to the parking lot in front
of Shanna Niter‘s apartment. Mr. Jones-Cage described the shooting as follows:
I hollered out, where Little Glen? Shanna came out and said hold on, let
me call him. She walked off and I pulled up and made a U-turn around the
median and was facing west.
A gentleman walked up the steps with his shirt off smoking a cigarette.
Then Shanna started yelling wait. Then the guy with no shirt started yelling
some words. The last thing I heard him say was that y‘all need to go. As
soon as I started to pull off one of the other guys in my car started shooting.
I sped away. On the ride home they kept saying I need to keep it one
hundred.
I parked my truck and recovered the gun. One of the other guys put the
bag with the gun in the trunk of a white Crown Vic. I went into the house
and talked to April for a second and I got a call from another guy who said
my truck was involved in a shooting…. I was about to move it but he said
the police were about to pull up.
The police zoomed down on the truck and I was hiding in the neighbor‘s
vacant home while the police was over there. The other guys had jumped
the gate and ran on Orleans when the police got there.
Sergeant Adams testified that Mr. Jones-Cage stated that the men grabbed the
black bag from the bushes and that he did not ask them what was in the bag. Mr. Jones-
Cage said he did not ask the shooter why he started shooting because Mr. Jones-Cage was
3
Mr. Jones-Cage‘s statement that was presented at trial was redacted to exclude the names of his
co-defendants. See Bruton v. United States, 391 U.S. 123 (1968) (prohibiting the use of incriminating
statements made by a non-testifying co-defendant against another defendant).
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afraid and shocked. Mr. Jones-Cage told the officer that to ―keep it one hundred‖ meant
that he better not report them.
Sergeant Adams said Mr. Jones-Cage signed his written statement. Sergeant
Adams explained that he did not confront Mr. Jones-Cage with the facts of the case
because his attorney was present. Rather, Sergeant Adams only asked Mr. Jones-Cage
what occurred and documented his responses. Sergeant Adams stated that the Ford
Explorer recovered by the police was registered to Mr. Jones-Cage‘s father.
On cross-examination, Sergeant Adams testified that he spoke to Ms. Niter at the
scene and that Ms. Niter said she was injured. He did not recall seeing any blood on Ms.
Niter other than her own blood and said Ms. Niter did not have any wounds on her face.
Officers did not recover any firearms used in the shooting.
Mr. Toney Sanders, the principal court clerk at the Shelby County Criminal Court
Clerk‘s Office, testified that on July 3, 2014, Mr. Bohannon appeared for a scheduled
court date and was given another court date of August 4, 2014. Mr. Bohannon failed to
appear in court on August 4. As a result, his bond was forfeited, and an arrest warrant
was issued. Mr. Bohannon had not been located. The arrest warrant was still active at
the time of trial.
Mr. Sanders testified that Mr. Burgess had a court date on October 8, 2014, which
was rescheduled for October 10. On October 10, his case was reset to November 24,
2014.
Ms. Juaquatta Harris with the Shelby County Sheriff‘s Office presented a
recording of a telephone call made by Mr. Burgess from the jail on October 11, 2014.
During the call, Mr. Burgess spoke to a man who identified himself as ―Benjamin‖ about
Benjamin‘s ―no show.‖ Benjamin mentioned the case, and Mr. Burgess stopped him and
stated that the call was being recorded. Mr. Burgess then stated that he was scheduled to
return to court in forty-five days and that once the matter was resolved, Benjamin could
―go in‖ and then be released.
The State and Mr. Burgess‘ counsel stipulated that Mr. Burgess had a prior felony
conviction that satisfied an element of the crime of convicted felon in the possession of a
firearm.
The Defendants’ Proof
Officer Shonda Harris of the Memphis Police Department testified that she spoke
to Ms. Niter at the scene of the shooting and that Ms. Niter provided her with a
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photograph of Mr. Jones-Cage. Officer Harris said she did not use the photograph in the
investigation or as part of the photographic lineup.
Mr. Jones-Cage testified that on Monday, April 8, 2013, Ms. April Niter, his
former girlfriend, posted a comment about him on Facebook. Glen Hervery, Jr., ―Little
Glen,‖ responded to the post that he had told her that Mr. Jones-Cage ―was going to f***
[her] off.‖ Later that day, Mr. Jones-Cage and Ms. April Niter reconciled. Mr. Jones-
Cage detailed April Niter‘s automobile issues on Tuesday night and Wednesday morning
and his efforts to assist her. At approximately 4:30 a.m. on the Wednesday morning of
the shooting, Mr. Jones-Cage sent Mr. Hervery a message over Facebook about Mr.
Hervery‘s comment. Later that morning, Mr. Jones-Cage received a call from Ms.
Shanna Niter, but she did not answer when he returned her call. Mr. Jones-Cage learned
from Ms. April Niter that Ms. Shanna Niter called him about the message he sent to Mr.
Hervery. Mr. Jones-Cage and Mr. Hervery exchanged messages over Facebook. Mr.
Jones-Cage wrote to Mr. Hervery to come to his home that he would show Mr. Hervery
―what the f****** you off is.‖ Mr. Hervery sent Mr. Jones-Cage a message that he was
at the Hillview Apartments, and Mr. Jones-Cage responded that he was on his way there.
Mr. Jones-Cage testified that he drove to the apartment complex to search for Mr.
Hervery by himself. While driving around, Mr. Jones-Cage saw Ms. Shanna Niter. He
said she was ―mugging‖ him because they had a ―falling out‖ approximately two weeks
prior. He stated he also saw Mr. Thomas outside the apartment shooting dice. Mr. Jones-
Cage testified that Ms. Niter said that she would call Mr. Hervery and that Mr. Thomas
then approached his vehicle and said Mr. Hervery was not there. Mr. Jones-Cage
maintained that as he was leaving, he heard gunshots coming from behind him and drove
away as quickly as possible. He said he did not see Mr. Thomas get shot. Mr. Jones-
Cage stated that Ms. Niter called him and said that she was going to tell the police that he
did the shooting and send him to jail just as she had done with her former boyfriend.
Mr. Jones-Cage testified that he parked his vehicle on Leflore Street at the home
of his father‘s girlfriend and walked home. He said he later received a call from Ms.
Shanna Niter, who stated that the police were on their way to his house. Mr. Jones-Cage
hid in a vacant house located down the street from his home. He acknowledged ―going
on the run‖ and avoiding the police.
Mr. Jones-Cage later contacted an attorney and gave a statement to the police. He
maintained that he was untruthful in his statement to the police. He denied that Mr.
McNary, Mr. Bohannon, and Mr. Burgess were present during the shooting and denied
that he had any weapons in his vehicle at the time of the shooting. Mr. Jones-Cage
explained the presence of Mr. Bohannon‘s fingerprints by stating that Mr. Bohannon was
with a friend of his brother and was likely in Mr. Jones-Cage‘s vehicle on the night
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before the shooting. Mr. Jones-Cage further explained that he was mad at Mr. McNary,
Mr. Bohannon, and Mr. Burgess because he believed that they were involved in the theft
of his music equipment while he was eluding police. Mr. Jones-Cage said he told Ms.
April Niter to instruct Ms. Shanna Niter to tell the police that the three co-defendants
were involved.
On cross-examination by Mr. Burgess‘ counsel, Mr. Jones-Cage testified that he
wrote a letter to Mr. Burgess stating that if Mr. Burgess had not stolen the property, Mr.
Burgess would not have been involved in the court proceedings.
On cross-examination by the State, Mr. Jones-Cage acknowledged that the jury
did not hear his entire statement to the police and that portions of his statement were
redacted. He said he was mad at ―Little Glen‖ when he drove to Hillview Apartments.
Mr. Jones-Cage agreed that he told the police officers that prior to going to the apartment
complex, he went home where he was met by his cousin, Mr. McNary, who stated that he
would not allow Mr. Jones-Cage to go to the apartment complex alone.
Mr. Jones-Cage acknowledged telling the police officers that when he and Mr.
McNary arrived at the apartment complex, they saw Mr. Burgess and Mr. Bohannon and
that Mr. Burgess and Mr. Bohannon retrieved a black bag that contained an assault rifle
from the bushes and got into Mr. Jones-Cage‘s green Ford Explorer. Mr. Jones-Cages
told the police officers that he drove up to the area of Ms. Niter‘s apartment and asked
her about ―Little Glen.‖ Mr. Jones-Cage told the officers that when Mr. Thomas told
them to leave, Mr. Burgess began shooting an assault rifle twenty to thirty times and that
they fled the scene. Mr. Jones-Cage told the officers that he parked his vehicle beside a
vacant house and hid in a vacant house while the other men fled.
Mr. Jones-Cage testified that he drove alone to the apartment complex to address
an ongoing issue with Mr. Hervery. While Mr. Jones-Cage said that he owned a gun and
had a permit, he denied possessing the gun while at the apartment complex. He denied
that Ms. Hervery was at the apartment complex. He said he saw Mr. Thomas gambling
with other men and maintained that someone shot Mr. Thomas over a game of dice. Mr.
Jones-Cage denied wiping down his vehicle and said that his fingerprints should have
been on the vehicle.
Mr. Jones-Cage stated that after the shooting, he worked for the next two nights.
He then rode on a bus to Atlanta, Georgia, and said he knew that the police were
searching for him.
Ms. Ada Sherrod, Mr. Burgess‘ grandmother, testified that she recalled April 10,
2013, because she had minor surgery on Friday, April 12. She said that prior to her
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surgery, she was suffering from seizures and blackouts and that someone was required to
stay with her as a result. She stated that Mr. Burgess cared for her in the mornings until
her daughter returned from work at 2:30 p.m. Ms. Sherrod testified that on April 10, Mr.
Burgess was sitting on her front porch when she awoke and that he assisted her in
cooking breakfast. She said Mr. Burgess was still at her home at noon that day.
Ms. Joyce Aldridge, Mr. Burgess‘ mother, testified that in April 2013, her mother
needed someone to stay with her because she was suffering from seizures and blackouts.
Ms. Aldridge said Mr. Burgess stayed with Ms. Sherrod in the mornings while Ms.
Aldridge was at work. Ms. Aldridge stated that she saw Mr. Burgess when she returned
home from work during the evening of April 10, 2013. She said that Mr. Burgess was
not acting unusual or anxious and that all of the chores had been completed.
At the conclusion of the trial, the jury convicted the Defendants of two counts of
attempted first degree murder, one count of aggravated assault, and one count of reckless
endangerment. The jury convicted Mr. Jones-Cage and Mr. McNary of employing a
firearm during the commission of a dangerous felony. The jury also convicted Mr.
Burgess of employing a firearm during the commission of a dangerous felony having
been previously convicted of a felony and of possessing a firearm after having been
convicted of a felony involving the use or attempted use of violence.
A bifurcated hearing was held on the issue whether Mr. Burgess had a prior
qualifying felony conviction that enhanced his conviction for employing a firearm during
the commission of a dangerous felony. During the hearing, Mr. Burgess stipulated that
he had a prior felony conviction that qualified under the statute in that he pled guilty to
attempted second degree murder on May 17, 2007. The jury returned a verdict finding
that Mr. Burgess had a prior qualifying felony conviction.
The trial court then held a sentencing hearing after which the trial court sentenced
Mr. Burgess to an effective term of fifty-five years, Mr. Jones-Cage to an effective term
of fifty years, and Mr. McNary to an effective term of forty-one years. This appeal
followed.
ANALYSIS
On appeal, the Defendants raise the following issues either collectively or
individually: (1) the trial court erred in denying Mr. Burgess‘ motion to suppress a
witness‘s identification of him in a photographic lineup and in limiting the cross-
examination of Ms. Niter during the suppression hearing; (2) the failure to name the
predicate felony in the indictment for employing a firearm during the commission of a
dangerous felony voids the conviction; (3) the evidence is insufficient to support the
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convictions; (4) the trial court committed plain error in not allowing defense counsel to
impeach the victim‘s testimony at trial with her statement to the police; (5) the
malfunctioning of the recording equipment during the trial warranted a mistrial; (6) the
sentences of Mr. Burgess and Mr. McNary are excessive; (7) the cumulative effect of the
errors warrants a new trial; and (8) the trial court erred in denying Mr. Burgess‘ pro se
petition for writ of error coram nobis.
I. SUPPRESSION OF PRETRIAL IDENTIFICATION
Mr. Burgess contends that the trial court erred by refusing to allow him to utilize a
transcript of a preliminary hearing to impeach a witness during the suppression hearing
and in denying his motion to suppress a witness‘s identification of him in a photographic
lineup.
A. Evidence at the Suppression Hearing
Prior to trial, Mr. Burgess filed a ―Motion to Suppress Photographic Identification
and In-Court Identifications,‖ a ―Motion to Suppress Identification Testimony,‖ and a
memorandum of law in support of his motions. Mr. Burgess argued that the
identification procedure was prejudicial and unduly suggestive in that his photograph in
the lineup was not similar to the other photographs and that officers informed Ms. Shanna
Niter of new evidence prior to her identification of Mr. Burgess in the photographic
lineup. Mr. Burgess also argued that Ms. Niter‘s testimony regarding the identification
was untrustworthy and unreliable and lacked ―the requisite personal knowledge that is
crucial in an identification witness.‖
During the suppression hearing, Ms. Niter testified that she knew Mr. Jones-Cage
prior to the shooting. Following the shooting, she told the police officers that Mr. Jones-
Cage was involved and identified him in a photographic lineup.
Ms. Niter stated that she did not know the other men who were in the vehicle with
Mr. Jones-Cage and had never seen them prior to the day of the shooting. She said that
the windows of Mr. Jones-Cage‘s vehicle were rolled halfway down and that she could
see the individuals inside the vehicle. She stated that she remembered the faces of the
men.
Ms. Niter testified that she continued to call the police officers after the shooting
and ask whether they had arrested Mr. Jones-Cage. An officer later contacted her and
asked her to view additional photographic lineups. Ms. Niter said the officer showed her
multiple photographic lineups and asked her whether she knew anyone in the lineups.
The officer instructed her to circle the faces of those with whom she was familiar and to
not be concerned if she did not recognize anyone. Mr. Niter stated that the officer told
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her that the occupants of the vehicle may or may not be in the photographic lineups. She
also stated that the officer never indicated to her the identity of the suspects or told her
that they had suspects in custody.
Prior to viewing the photographic lineups, Ms. Niter was provided with written
instructions, which she stated that she read and understood. The instructions stated that
―[d]uring the interview process, no one is to give me any hints or suggestions or attempt
to influence my identification in any way.‖ The instructions also stated that ―[t]here‘s no
significance to the orders in which the photos will appear‖ and that ―I am not to assume
that the guilty party must be one of the persons represented.‖ Ms. Niter said that no one
attempted to influence her identification of those in the photographic lineups and that she
did not feel that she was required to choose someone from the lineups. She stated that no
one told her that the other occupants in Mr. Jones-Cage‘s vehicle would be in the
photographic lineups. Rather, she said she identified the men because they were with Mr.
Jones-Cage during the shooting. She stated that she did not know the names of the other
occupants at the time of the shooting and that she still did not know their names at the
time of the suppression hearing. She maintained that she knew the faces of the occupants
and where they were sitting inside the vehicle.
Ms. Niter identified Mr. Burgess in a photographic lineup as ―the backseat rider‖
who possessed ―the big gun.‖ She said she identified Mr. Burgess in the lineup because
he was in the backseat of Mr. Jones-Cage‘s vehicle and not because the background of
his photograph was dark. Ms. Niter identified Mr. Burgess as an occupant of Mr. Jones-
Cage‘s car during both the preliminary hearing and the suppression hearing.
Ms. Niter testified that Mr. Jones-Cage wrote a letter threatening her if she came
to court. She said Mr. Jones-Cage did not tell her the identities of the other three
occupants of his vehicle or who to identify in the photographic lineup or during the
preliminary hearing. Ms. Niter was aware that Mr. Jones-Cage gave a statement to the
police, but she did not know who he identified as participating in the shooting.
On cross-examination, Ms. Niter testified that following the shooting, she
provided the police officers with information regarding Mr. Jones-Cage‘s involvement.
She believed that she only told the officers that the other occupants were males and that
she did not provide a physical description or distinguishing marks on the other occupants.
Defense counsel for Mr. Burgess began questioning Ms. Niter about her testimony
at the preliminary hearing. Ms. Niter acknowledged that she stated at the preliminary
hearing that windows in the backseat of the vehicle were rolled down halfway. Defense
counsel asked Ms. Niter whether she testified at the preliminary hearing that one of the
people in the backseat was ―peeking as if he did not want to be seen.‖ Ms. Niter
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responded that the man was looking at her as if he did not want her to walk up to vehicle.
Defense counsel then began asking Ms. Niter about her specific testimony at the
preliminary hearing. After the State‘s lodged multiple objections to the form of defense
counsel‘s questions and the trial court sustained the objections, the following colloquy
occurred:
Q (By [defense counsel]) And you stated the window of the back
passenger seat was halfway down. You stated that. Correct?
A Yes, I did.
Q You‘re stating that the windows were tinted. Is that correct?
A The back windows were.
Q And you stated he really didn‘t want to be seen at the hearing. Is
that correct?
A I don‘t recall that.
Q You don‘t recall stating that at the preliminary hearing?
A No, I don‘t.
[Defense Counsel]: Your Honor, should I refresh her memory on
the –
THE COURT: If you think that that is significant, you can pass the
document up. Do you have a certified copy or is this your transcription of
it or what?
....
[Defense Counsel]: This is a transcript I believe I received from the
public defender‘s office.
THE COURT: Well, and—and you‘re willing to state that that‘s a
true and accurate transcript of these proceedings?
[Defense Counsel]: I‘ve reviewed the tape, Your Honor. It appears
to be a true and accurate –
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THE COURT: So you want to now testify in this matter. I‘m sorry.
You‘re—if it were more material in this, I would maybe would—but you‘re
asking her and now you‘re trying to refresh her recollection with a
document that she‘s never seen so I mean I—you know I think you‘ve
established that the windows were halfway down, the rear windows were
tinted. At some point she testified today that the person was looking at her
like he didn‘t want her walking up there but so you can go on from there.
[Defense Counsel]: I‘ll move on, Your Honor. Thank you.
THE COURT: All of this has to do potentially so far with the
weight that a jury might give this identification. Nothing so far has gotten
to admissibility issues and so I‘m going to let you move on and see where
we get with that.
Ms. Niter testified that she did not recall stating during the preliminary hearing
that an officer contacted her and told her that he had new information about the case. She
said the officer told her that ―they had a few people in the lineup for me to pick out.‖ Ms.
Niter then testified, ―I don‘t think that‘s exactly how he said it. I‘m just saying he said
that they had a few people in the lineup, some people that they wanted me to look and see
if their faces looked familiar to pick out in the lineup.‖
Ms. Niter acknowledged that Mr. Burgess had a distinguishing scar located at the
top of the bridge of his nose and in between his eyebrows. Ms. Niter could not recall
whether she mentioned the scar to the officers prior to identifying him in a photographic
lineup.
Sergeant Shawn Hicks with the Memphis Police Department testified that he
prepared the photographic lineup that included a photograph of Mr. Burgess by using a
computer program called Mugshots. The program has access to the database of mugshots
taken when inmates are brought into the Shelby County Jail. The program uses the
mugshot of a suspect to find five mugshots of those with similar characteristics.
Sergeant Hicks testified that Mr. Burgess had a star tattooed on his forehead.
Sergeant Hicks said the computer program was unable to locate five other mugshots of
people with star tattoos on their forehead. As a result, Sergeant Hicks had to look at the
photographs suggested by the computer program to locate those who had similar tattoos
located in similar positions. Sergeant Hicks stated that he attempted to prepare a lineup
whereby the photograph of Mr. Burgess did not ―stick out‖ among the other photographs.
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Sergeant Hicks stated that he reviewed the form of advice to witnesses who are
viewing photographic lineups. Sergeant Hicks said the form explained that while the
officers have identified a person who they suspect may have been involved in the
incident, the witness viewing the lineup cannot assume that the suspect or some other
person who may be involved is included in the lineup. The form also stated that the
officers could not provide hints or influence the witness in any way. Sergeant Hicks
stated that Ms. Niter indicated that she understood this information. He said Ms. Niter
viewed multiple photographic lineups and identified three people, including Mr. Burgess.
Sergeant Hicks denied that he attempted to influence Ms. Niter‘s decision and said he had
little knowledge about the shooting.
On cross-examination, Sergeant Hicks testified that in creating the photographic
lineup, he attempted to include photographs of men who had features similar to those of
Mr. Burgess. He found photographs of men who had tattoos on their foreheads but was
unable to locate anyone who had the exact same tattoo as Mr. Burgess. Sergeant Hicks
noted that each photograph in the lineup had different lighting in the background. He
acknowledged that the background in Mr. Burgess‘ photograph appeared to be darker that
the backgrounds in the other photographs. Sergeant Hicks did not believe that he
contacted Ms. Niter to ask her to come to the police station for the purpose of viewing the
lineups.
At the conclusion of the proof, defense counsel requested that the recording of the
preliminary hearing be entered as an exhibit. The State objected on the basis that the
recording had not been authenticated. The trial court agreed to give defense counsel
leave to present a witness to authenticate the recording. The trial court allowed defense
counsel to present an argument as if the recording had been entered into evidence. There
is nothing in the record indicating that defense counsel later presented a witness to
authenticate the recording of the preliminary hearing, and the recording was never
entered as an exhibit.
At the conclusion of the hearing, the trial court noted that much of the evidence
presented during the hearing related to the weight of the identification and not to its
admissibility. With regard to the photographic lineup, the trial court stated that ―it would
be nice‖ if everyone‘s photograph had the same background and ―if we had other people
who had stars on their forehead.‖ The trial court believed that the officer ―did a good
job‖ in utilizing the computer program and ―getting people with other marks and things
on their faces.‖ The trial court found that the photographic lineup was not unduly
suggestive and credited Ms. Niter‘s testimony that she selected Mr. Burgess‘ photograph
based upon her memory of the individual who was sitting in the backseat of the car.
- 20 -
The trial court found that while the better practice would be to have a witness
come to the police station without providing a reason, instructing a witness to come to the
police station without hinting as to the reason would be difficult. The trial court credited
Ms. Niter‘s testimony that she maintained regular contact with the police over the course
of the investigation for a variety of reasons, including whether Mr. Jones-Cage had been
placed in custody, and that she was asked to come to the police station. The trial court
noted that Ms. Niter testified that the officers wanted her to view lineups to determine
whether she could identify anyone and that the evidence established that Ms. Niter was
informed that the suspects may or may not have been included in the lineups. The trial
court found that Ms. Niter ―unequivocally‖ testified that she chose Mr. Burgess‘
photograph from the lineup because she recognized him as being involved in the
shooting.
The trial court concluded that identification in the photographic lineup did not
violate Mr. Burgess‘ constitutional rights. The trial court also concluded that the
subsequent in-court identification was not tainted by the identification in the
photographic lineup. Therefore, the trial court denied Mr. Burgess‘ motion.
B. Photographic Lineup
A trial court‘s factual findings made during a motion to suppress are binding on an
appellate court unless the evidence preponderates against them. State v. Saylor, 117
S.W.3d 239, 244 (Tenn. 2003). Determinations of witness credibility and the resolution
of conflicts in the evidence are left to the trial court. State v. Riels, 216 S.W.3d 737, 753
(Tenn. 2007). An appellate court may consider testimony presented at trial in reviewing
the trial court‘s conclusions in a motion to suppress evidence. Id. The prevailing party is
entitled to the strongest legitimate view of the evidence and to all reasonable inferences
drawn from the evidence. State v. Day, 263 S.W.3d 891, 900 (Tenn. 2008). A trial
court‘s conclusions of law are reviewed de novo. State v. Sawyer, 156 S.W.3d 531, 533
(Tenn. 2005). Likewise, a trial court‘s application of law to the facts is reviewed de
novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
The United States Supreme Court has recognized that ―convictions based on
eyewitness identification at trial following a pretrial photographic identification will be
set aside only if the photographic identification was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification.‖ Simmons v.
United States, 390 U.S. 377, 384 (1968). The risk of an incorrect identification is greater
if the eyewitness is shown a lineup where a single photograph ―is in some way
emphasized.‖ Id. at 383. The risk of misidentification also increases ―if the police
indicate to the witness that they have other evidence that one of the persons pictured
committed the crime.‖ Id. ―When a defendant argues that a lineup is suggestive based on
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differences between the subjects of the lineup, this court has required that the subjects be
‗grossly dissimilar‘ before it will find that the lineup is impermissibly suggestive.‖ State
v. Albert W. Bentley, No. M2010-01882-CCA-R3-CD, 2011 WL 6916762, at *5 (Tenn.
Crim. App. Dec. 29, 2011) (citing State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim.
App. 1993)).
The United States Supreme Court has established a two-part analysis which the
trial court must apply in determining the validity of a pre-trial identification. Neil v.
Biggers, 409 U.S. 188, 198-99 (1972). First, the trial court must determine whether the
identification procedure was unduly suggestive. Id. at 198. If the trial court determines
that the identification procedure was unduly suggestive, the court must then consider
whether the identification procedure was reliable under the totality of the circumstances.
Id. at 199. Five factors to be considered in making that determination include:
the opportunity of the witness to view the criminal at the time of the crime,
the witness‘ degree of attention, the accuracy of the witness‘ prior
description of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime and
the confrontation.
Id. at 199-200. If the trial court determines that the identification procedure was not
unduly suggestive, the court need not apply the totality of the circumstances test. See
State v. Butler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).
Mr. Burgess asserts that the photographic lineup and the overall identification
process were unduly suggestive. He maintains that his photograph stood out in the lineup
because he had a star tattoo on his face and the background of his photograph was darker
than the other photographs in the lineup. We have reviewed the original lineup of the six
photographs from which Ms. Niter made her identification. Five of the six subjects have
clear tattoos or markings on their foreheads. All of the subjects appear to be of the same
age, have similar hairstyles, and have facial hair. None of the subjects were wearing
distinctive clothing. Although the background of Mr. Burgess‘ photograph and that of
another subject appear darker than the backgrounds of the remaining photographs, the
background of two other photographs appear more gray, and the background of two other
photographs appear more tan. The background color does not draw attention to Mr.
Burgess‘ photograph. The trial court properly concluded that the subjects were not
―grossly dissimilar‖ as to render the lineup impermissibly suggestive.
We also agree with the trial court‘s finding that the manner of the identification
process was not unduly suggestive. Mr. Burgess argues that the police officer‘s call to
Ms. Niter during which the officer requested that Ms. Niter come to the station to view
- 22 -
the photographic lineups ―give[s] the strong impression to the lay person that someone in
the pictures had committed a crime.‖ While Ms. Niter initially testified that the officer
told her that ―they had a few people in the lineup for me to pick out,‖ she clarified, ―I
don‘t think that‘s exactly how he said it. I‘m just saying he said that they had a few
people in the lineup, some people that they wanted me to look and see if their faces
looked familiar to pick out in the lineup.‖ We conclude that this conversation would not
give a lay person the impression that someone in the lineup was involved in the shooting.
Rather, Ms. Niter was told that the photograph of one of the perpetrators may be included
in the lineup and that she should select a subject only if she was certain that the subject
was one of the perpetrators. Sergeant Hicks reviewed the identification procedures with
Ms. Niter before showing her the lineup, and both Sergeant Hicks and Ms. Niter stated
that she understood the procedures. Neither the officers nor anyone else suggested to Ms.
Niter which photograph to select. The evidence established that the identification
procedure was not unduly suggestive. Because we have determined that the
identification process was not unduly suggestive, we need not assess the reliability of Ms.
Niter‘s identification. See Butler, 795 S.W.2d at 686. The trial court properly denied Mr.
Burgess‘ motion to suppress, and Mr. Burgess is not entitled to relief with regard to this
issue.
C. Impeachment Evidence
Mr. Burgess contends that the trial court erred in not allowing defense counsel to
use the transcript of the preliminary hearing to refresh Ms. Niter‘s recollection or
impeach her testimony. Mr. Burgess‘ briefing on this issue consists of one paragraph in
which he provided little analysis and failed to cite to any authority to support his claim.
See Tenn. R. App. P. 27(a)(7) (stating that an appellant‘s brief must contain an argument
―setting forth...the contentions of the appellant with respect to the issues presented, and
the reasons therefor, including the reasons why the contentions require appellate relief,
with citations to the authorities and appropriate references to the record...relied on‖);
Tenn. Ct. Crim. App. R. 10(b) (―Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
Court.‖).
Mr. Burgess also failed to raise this issue in his motion for new trial. See Tenn. R.
App. P. 3(e) (―[N]o issue presented for review shall be predicated upon error in the
admission or exclusion of evidence, jury instructions granted or refused, misconduct of
jurors, parties or counsel, or other action committed or occurring during the trial of the
case, or other ground upon which a new trial is sought, unless the same was specifically
stated in a motion for a new trial; otherwise such issues will be treated as waived.‖).
Accordingly, this issue is waived, and we may only review it for plain error. Tenn. R.
App. P. 36(b) (―When necessary to do substantial justice, an appellate court may consider
- 23 -
an error that has affected the substantial rights of a party at any time, even though the
error was not raised in the motion for a new trial or assigned as error on appeal.‖). Five
factors must be met before this court will conclude that plain error exists:
―(a) the record must clearly establish what occurred in the trial court; (b) a
clear and unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely affected; (d) the
accused did not waive the issue for tactical reasons; and (e) consideration of
the error is ‗necessary to do substantial justice.‘‖
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994). Our court has stated that plain error review will
rarely extend to an evidentiary issue. State v. Ricky E. Scoville, No. M2006-01684-CCA-
R3-CD, 2007 WL 2600540, at *2 (Tenn. Crim. App. Sept. 11, 2007).
During the suppression hearing, defense counsel questioned Ms. Niter on cross-
examination regarding her testimony during the preliminary hearing. When Ms. Niter
stated that she did not recall testifying during the hearing that Mr. Burgess appeared as if
he did not wish to be seen while sitting in the backseat of Mr. Jones-Cage‘s vehicle prior
to the shooting, defense counsel sought to refresh Ms. Niter‘s recollection with a
transcript that defense counsel had received from the public defender‘s office and that
had not been certified as an accurate reflection of the testimony presented during the
preliminary hearing.
We conclude that Mr. Burgess has failed to establish that consideration of the error
is necessary to do substantial justice. Testimony regarding Ms. Niter‘s opportunity to
view Mr. Burgess was, at most, relevant to the reliability of Ms. Niter‘s identification of
Mr. Burgess under the totality of the circumstances. See Neil, 409 U.S. at 199-200
(listing ―the opportunity of the witness to view the criminal at the time of the crime‖ as a
factor in determining whether the identification was reliable under the totality of the
circumstances). As both the trial court and this court concluded, however, the
photographic lineup and the identification procedure were not unduly suggestive. As a
result, an analysis of the factors in Neil v. Biggers to determine the reliability of Ms.
Niter‘s identification was not required, and any error in failing to allow Mr. Burgess to
present additional testimony to support these factors was harmless. See Tenn. R. App. P.
36(b).
Moreover, Mr. Burgess failed to identify on appeal what portions of Ms. Niter‘s
testimony were impeachable through the use of the transcript of the preliminary hearing.
Finally, we note that the trial court granted Mr. Burgess the opportunity to return to court
and to present a certified recording of the preliminary hearing to support his motion to
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suppress. Nothing in the record indicates that Mr. Burgess took advantage of this
opportunity. Accordingly, Mr. Burgess has failed to establish plain error and is not
entitled to relief regarding this issue.
II. SUFFICIENCY OF THE INDICTMENT
Mr. McNary contends that the State‘s failure to name the predicate felony in count
three of the indictment, employing a firearm during the commission of a dangerous
felony, voids the charge. The State maintains that Mr. McNary waived the issue because
he raised the issue for the first time on appeal. The State also maintains that the
indictment provided Mr. McNary with sufficient notice.
The State correctly notes that Mr. McNary has raised this issue for the first time on
appeal. The failure to timely object or raise the issue in a motion for new trial generally
results in waiver on appeal. See Tenn. R. App. P. 3(e). Our supreme court recently noted
that
Tennessee cases addressing whether an indictment affords a defendant
adequate notice have referred to the issue as jurisdictional, implicating the
subject matter jurisdiction of the trial court to adjudicate the charge. If the
matter is considered jurisdictional and it is determined that the indictment
does not give proper notice to the defendant, then the indictment must be
dismissed.
State v. Willie Duncan, No. W2013-02554-CCA-R3-CD, __ S.W.3d __, 2016 WL
6024007, at *8 n.10 (Tenn. 2016) (citations omitted). In United States v. Cotton, the
United States Supreme Court rejected the view that defects in an indictment are
jurisdictional and held that a defective indictment does not deprive a trial court of
jurisdiction. 535 U.S. 625, 629-31 (2002); see Willie Duncan, 2016 WL 6024007, at *8
n.10. Our supreme court noted that since Cotton, ―‗[s]ome states continue to describe an
indictment that fails to allege ―each and every element of the offense‖ as importing a
―jurisdictional defect that renders void ab initio‖ any subsequent conviction,
notwithstanding the adequacy of the evidence produced at trial.‘‖ Willie Duncan, 2016
WL 6024007, at *8 n.10 (quoting Wayne LaFave, et al., 5 Crim. Proc. § 19.2(e) (4th ed.
2015)). In recent years, however, ―‗a growing list of states has flatly rejected earlier
rulings characterizing the failure to allege all material elements as a jurisdictional
defect.‘‖ Id. (quoting Wayne LaFave, et al., 5 Crim. Proc. § 19.2(e) (4th ed. 2015)). Our
supreme court, however, did not reach the issue of whether defects in an indictment are
jurisdictional because the issue was not raised or argued on appeal. Id. Regardless of
whether Mr. McNary waived the issue, however, he is not entitled to relief.
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The original indictments included two counts of attempted second degree murder
against all of the Defendants and two counts of employing a firearm during the
commission of a dangerous felony against Mr. Burgess only. The first firearm count
charged Mr. Burgess with employing a firearm during the commission of an offense ―as
defined in T.C.A. 39-17-1324(i)(1), against the person of Demarcus Thomas.‖ The
second firearm count charged Mr. Burgess with employing a firearm during the
commission of an offense ―as defined in T.C.A. 39-17-1324(i)(1), against the person of
Shan[n]a Niter.‖ The superceding indictment included two counts of attempted first
degree murder and two counts of employing a firearm during the commission of a
dangerous felony. Neither firearm count listed the predicate felony. During trial, the trial
court dismissed the second firearm count. The trial court instructed the jury that the
dangerous felonies that the jury could consider were attempted first degree murder and
attempted second degree murder and that the employment of a firearm charged related to
count one, the charge of attempted first degree murder of Mr. Thomas.
Mr. McNary contends that because the predicate dangerous felony was not listed
in the firearm charge of the indictment, the indictment for the firearm charge is missing
an ―essential element.‖ Mr. McNary further contends that the failure to specify the
predicate felony upon which the firearm charges were based did not comport with his
constitutional right to be informed of the nature and cause of the accusation against him.
The Tennessee Supreme Court, however, recently held that an indictment for a charge of
employing a firearm during the commission of a dangerous felony is not missing an
―essential element‖ of the offense when the predicate dangerous felony is not listed in the
indictment. Id. at *9. The court further held that the failure to state the predicate felony
offense ―does not mean that the indictment falls below the minimum required to meet the
constitutional mandate of apprising the defendant of the nature and cause of the
accusation against him.‖ Id.
The charges of attempted first degree murder were the only charges listed in the
indictment that constituted dangerous felonies pursuant to Tennessee Code Annotated
section 39-17-1324(i)(1). Like the charges in Willie Duncan, the charges of employing a
firearm during the commission of a dangerous felony and attempted first degree murder
were included in the same indictment. See id. at *8. Thus, it is ―reasonably clear‖ that
the firearm charges are connected to the attempted first degree murder charges, and,
therefore, we may read them together for purposes of evaluating notice to Mr. McNary.
See id. Mr. McNary was indicted for two counts of employing a firearm during the
commission of a dangerous felony and two counts of attempted first degree murder.
Viewing these charges together, it is clear that Mr. McNary was charged with a firearm
offense for each dangerous felony of attempted first degree murder. Moreover, because
the predicate dangerous felony and the firearm charge must be tried in the same trial
pursuant to Tennessee Code Annotated section 39-17-1324(d), ―the defendant will not be
- 26 -
surprised at having to make a defense against either of the two possible predicate
felonies.‖ Id. at *9. Accordingly, we conclude that the charges in the indictment of
employing a firearm during the commission of a dangerous felony sufficiently apprised
Mr. McNary ―of the nature and cause of the accusation against him and enabled him to
adequately prepare a defense to the charge.‖ Id.
III. SUFFICIENCY
All three of the Defendants challenge the sufficiency of the evidence supporting
their convictions. Mr. Jones-Cage contends that no credible proof was presented
establishing that he took any direct action to harm the victims or that he was criminally
responsible for the actions of those who fired on the victims. Mr. McNary maintains that
the evidence established that he never fired a firearm during the shooting, that the other
shooters recklessly fired shots toward the crowd and, therefore, were not guilty of
attempted first degree murder, and that he was not criminally responsible for the actions
of the other shooters. Mr. Burgess asserts that the evidence was insufficient to establish
that he was present at the time of the offenses. The State responds that the evidence is
sufficient to support the Defendants‘ convictions. We agree with the State.
When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is ―whether, after viewing the evidence in the light most favorable to the
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). On appeal,
―‗the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.‘‖ State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any questions concerning ―the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence.‖ 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. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
This court applies the same standard of review regardless of whether the
conviction was predicated on direct or circumstantial evidence. State v. Dorantes, 331
S.W.3d 370, 381 (Tenn. 2011). ―Circumstantial evidence alone is sufficient to support a
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conviction, and the circumstantial evidence need not exclude every reasonable hypothesis
except that of guilt.‖ State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).
A. Attempted First Degree Murder
The Defendants were convicted of attempted premeditated first degree murder of
Mr. Thomas and attempted premeditated first degree murder of Ms. Niter. A person
attempts to commit a criminal offense who, acting with the kind of culpability otherwise
required for the criminal offense:
(1) Intentionally engaged in action or causes a result that would constitute
an offense, if the circumstances surrounding the conduct were as the
person believes them to be;
(2) Acts with intent to cause a result that is an element of the offense, and
believes the conduct will cause the result without further conduct on the
person‘s part; or
(3) Acts 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).
First degree murder is the premeditated and intentional killing of another. Id. §
39-13-202(a)(1). A premeditated act is one ―done after the exercise of reflection and
judgment.‖ Id. § 39-13-202(d). Premeditation requires a finding that ―the intent to kill
must have been formed prior to the act itself. It is not necessary that the purpose to kill
preexist in the mind of the accused for any definite period of time.‖ Id. The statute also
specifies that ―[t]he mental state of the accused at the time the accused allegedly decided
to kill must be carefully considered in order to determine whether the accused was
sufficiently free from excitement and passion as to be capable of premeditation.‖ Id.
Premeditation is a question of fact for the jury‘s determination. State v. Davidson,
121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could
lead a rational trier of fact to infer that premeditation was established by the proof as
required by statute. Id. at 615. Courts frequently look to the circumstances surrounding a
killing to discern the presence of evidence sufficient to support a finding of
premeditation. State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013).
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Factors which tend to support the existence of premeditation include: the use of a
deadly weapon 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; and
preparations before the killing for concealment of the crime, and calmness immediately
after the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). The factors listed in
Bland are not exhaustive, however. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013).
The nature of the killing or evidence establishing a motive for the killing may also
support a conclusion that the crime was premeditated. Id. Repeated blows, although not
alone sufficient to establish premeditation, may be a relevant factor in determining the
existence of premeditation. Id. Mutilation of the body may show that a killing was not
rash or impulsive. Davidson, 121 S.W.3d at 615. Lack of provocation by the victim,
failure to render aid, and destruction or secretion of evidence may also support an
inference of premeditation. Larkin, 443 S.W.3d at 815-16 (citing State v. Thacker, 164
S.W.3d 208, 222 (Tenn. 2005); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App.
2000)). ―Under Bland, shooting a retreating victim alone provides circumstantial
evidence of premeditation.‖ State v. Dickson, 413 S.W.3d 735, 746 (Tenn. 2013).
Mr. Burgess asserts that the evidence is insufficient to establish his identity as a
shooter. The identity of the perpetrator ―is an essential element of any crime.‖ State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity ―may be established solely on the
basis of circumstantial evidence.‖ State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010).
The issue of identity is a question of fact left to the jury as the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).
Shortly after the shooting occurred and at trial, Ms. Niter identified Mr. Burgess as
the man who was sitting in the backseat on the passenger‘s side and shooting a large gun.
Although Ms. Hervery was unable to identify Mr. Burgess in a photographic lineup
following the shooting, she testified at trial that one of the shooters had a tattoo on his
face. Mr. Burgess had a tattoo of a star in the area of his forehead. In contrast to his
testimony at trial, Mr. Jones-Cage told the police officers that Mr. Burgess shot an assault
rifle, and cartridge casings generally used in assault rifles were found throughout the
scene. While Mr. Burgess maintains that he was with his grandmother at the time of the
offenses, the jury chose to reject the testimony of Mr. Jones-Cage and Mr. Burgess‘s
mother and grandmother and chose to accredit the testimony of Ms. Niter that Mr.
Burgess was one of the shooters. It is within the province of the jury to resolve issues of
credibility and to determine the value of the evidence presented. See Bland, 958 S.W.2d
at 659. We conclude that the evidence, when viewed in a light most favorable to the
State, is sufficient to establish Mr. Burgess‘s identity as a shooter.
Mr. Jones-Cage contends that no credible evidence was presented establishing that
he shot a firearm during the incident. Ms. Niter and Ms. Hervery, however, both testified
- 29 -
that Mr. Jones-Cage was also shooting a gun during the episode. They described his
position in the vehicle while he was shooting. Mr. Jones-Cage acknowledged that he had
a gun permit and owned a gun. While the only cartridge casing found at the scene were
shot from an assault rifle, Ms. Niter testified that Mr. Jones-Cage was shooting from the
driver‘s seat inside the vehicle. She stated that by ―the way that he was shooting[,] he
could [have] shot the person [who] was sitting next to him.‖ Although no shell casings or
bullets were found inside of Mr. Jones-Cage‘s vehicle, he admitted to police officers that
he and the other defendants hid the guns used in the shooting, and his fingerprints were
not found on his own vehicle. The jury was free to accept that portion of Mr. Jones-
Cage‘s statement and reject his statement in which he denied shooting a gun. See State v.
Ricky T. Hughes, No. M2000-10846-CCA-R3-CD, 2002 WL 1033340, at *5 (Tenn.
Crim. App. May 21, 2002) (stating that ―the jury was entitled to believe part of the
defendant‘s statements while rejecting other parts‖). A jury could reasonably infer that
the Defendants wiped down the vehicle and discarded all evidence of the shooting,
including shell casings and bullets. Mr. Jones-Cage essentially challenges the credibility
of the testimony of Ms. Niter and Ms. Harvey and the jury‘s decision to credit their
testimony over his testimony. Because it is the province of the jury to resolve issues of
credibility and determine the value of the evidence presented, we will not reevaluate
issues of credibility. See Bland, 958 S.W.2d at 659. Rather, we conclude that when
viewed in a light most favorable to the State, the evidence is sufficient to establish that
Mr. Jones-Cage also shot a firearm during the episode.
The evidence is also sufficient to establish that Mr. Jones-Cage and Mr. Burgess
intended to kill Mr. Thomas and Ms. Niter and took a ―substantial step‖ toward the
offenses. See T.C.A. § 39-12-101(a)(3). The evidence presented at trial established that
the Defendants were armed and went to the area of Ms. Niter‘s apartment complex
searching for ―Little Glen.‖ When the conversation between Mr. Jones-Cage and Ms.
Niter became heated, Mr. Thomas asked Mr. Jones-Cage to leave because children and
other people were outside. After Mr. Jones-Cage spoke to the others inside his vehicle
and made derogatory comment about the women and children, Mr. Jones-Cage, Mr.
Burgess, and Mr. Bohannon began shooting at Ms. Niter, Mr. Thomas, and the crowd of
people in the area. We conclude that the acts of Mr. Jones-Cage and Mr. Burgess of
carrying loaded firearms and firing them several times at the victims were corroborative
of their intent to kill Mr. Thomas and Ms. Niter and that Mr. Jones-Cage and Mr. Burgess
took a substantial step to complete the offenses.
The evidence also is sufficient to establish that the actions of Mr. Jones-Cage and
Mr. Burgess in shooting at Mr. Thomas and Ms. Niter were premeditated. According to
the evidence presented at trial, Mr. Jones-Cage and ―Little Glen‖ had been arguing back
and forth for approximately two years. After ―Little Glen‖ made a disparaging comment
about Mr. Jones-Cage in response to a Facebook post by Mr. Jones-Cage‘s former
- 30 -
girlfriend, Mr. Jones-Cage and ―Little Glen‖ began sending each other messages in which
they argued and arranged a confrontation.
The Defendants and Mr. Bohannon were armed as they were searching for ―Little
Glen.‖ See Bland, 958 S.W.2d at 660 (recognizing evidence of procurement of a weapon
as a factor supporting premeditation). Mr. Jones-Cage saw Ms. Niter and demanded that
she call ―Little Glen.‖ When the conversation between Mr. Jones-Cage and Ms. Niter
became heated, Mr. Thomas asked Mr. Jones-Cage to leave because children and others
were outside. Mr. Jones-Cage spoke to the three men inside the vehicle and then made a
derogatory comment about the women and children. Mr. Jones-Cage, Mr. Burgess, and
Mr. Bohannon then began shooting at Mr. Thomas, Ms. Niter, and the crowd of people as
the victims fled. None of the victims were armed nor did they provoke the Defendants.
See id. (noting the use of a deadly weapon on an unarmed victim as a factor indicative of
premeditation); Larkin, 443 S.W.3d at 815 (stating that lack of provocation by the victim
may support an inference of premeditation). Numerous shots were fired into the crowd.
Mr. Thomas sustained multiple gunshot wounds to his head, and Ms. Niter sustained a
graze gunshot wound to her side.
The Defendants did not render aid to the victims and fled the scene. See Larkin,
443 S.W.3d at 815-16 (recognizing the failure to render aid as a factor supporting
premeditation). They disposed of their guns and hid the vehicle behind an abandoned
house. See id. (providing that the destruction or secretion of evidence may support an
inference of premeditation). Mr. Jones-Cage hid in another abandoned house, while the
others fled on foot. Mr. Jones-Cage avoided the police and escaped to Atlanta. We
conclude that this evidence, when viewed in a light most favorable to the State, is
sufficient to establish premeditation.
Mr. McNary contends that the evidence is insufficient to support his two
convictions for attempted first degree murder based upon criminal responsibility. In
determining whether the evidence is sufficient to sustain Mr. McNary‘s convictions we
must consider: (1) whether Mr. McNary was criminally responsible for the acts of the
other defendants; (2) whether the other defendants as the shooters intended to kill Mr.
Thomas and Ms. Niter and took a ―substantial step‖ toward the offenses for the purposes
of the criminal attempt statute in Tennessee Code Annotated section 39-12-101(a)(3); and
(3) whether the other defendants as the shooters acted with sufficient premeditation in
their attempts to kills Mr. Thomas and Ms. Niter within the meaning of Tennessee Code
Annotated section 39-13-202(a)(1). See Dickson, 413 S.W.3d at 744. We have
determined that Mr. Jones-Cage and Mr. Burgess intended to kill Mr. Thomas and Ms.
Niter, took a ―substantial step‖ toward the offenses, and acted with premeditation. Thus,
we must only determine whether Mr. McNary was criminally responsible for the acts of
Mr. Jones-Cage and Mr. Burgess.
- 31 -
―A person is criminally responsible as a party to an offense if the offense is
committed by the person‘s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.‖ T.C.A. § 39-11-401(a). A person is criminally
responsible for an offense committed by the conduct of another, if ―[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of
the offense, the person solicits, directs, aids, or attempts to aid another person to commit
the offense[.]‖ Id. § 39-11-402(2). Although not a separate crime, criminal
responsibility is a theory by which the State may alternatively establish guilt based on the
conduct of another. State v. Dorantes, 331 S.W.3d 370, 386 (Tenn. 2001) (citing State v.
Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)). No specific act or deed needs to be
demonstrated by the State, and the presence and companionship of an accused with the
offender before and after the offense are circumstances from which participation in the
crime may be inferred. State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). To
be convicted, however, ―the evidence must establish that the defendant in some way
knowingly and voluntarily shared in the criminal intent of the crime and promoted its
commission.‖ Dorantes, 331 S.W.3d at 386 (citing State v. Maxey, 898 S.W.2d 756, 757
(Tenn. Crim. App. 1994)); see State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App.
1988)).
The evidence presented at trial established that when Mr. McNary learned that Mr.
Jones-Cage planned to go to the apartment complex to search for ―Little Glen,‖ Mr.
McNary refused to allow Mr. Jones-Cage to go alone. They were both armed when they
went to the apartment complex, and Mr. McNary actively assisted Mr. Jones-Cage in
searching for ―Little Glen.‖ Mr. McNary remained in the vehicle with the other
defendants as Mr. Jones-Cage confronted Ms. Niter. Although no evidence was
presented establishing that Mr. McNary fired a gun, he possessed a gun and displayed it
in such a way that Ms. Niter was able to see it. After the shooting, Mr. McNary fled with
the other defendants and assisted them in disposing the firearms. We conclude that this
evidence, when viewed in a light most favorable to the State, is sufficient to establish that
Mr. McNary knowingly and voluntarily shared in the criminal intent of the offenses and
promoted their conviction. Accordingly, the evidence is sufficient to sustain Mr.
McNary‘s convictions for attempted first degree murder based upon a theory of criminal
responsibility.
B. Aggravated Assault
The Defendants were convicted of the aggravated assault of Brittany Hervery. As
it relates to this case, a defendant commits aggravated assault when he ―[i]ntentionally or
knowingly commits an assault … and … ―[u]ses or displays a deadly weapon.‖ T.C.A. §
39-13-102(a)(1)(A)(ii) (Supp. 2012). Assault is defined in relevant part as
- 32 -
―[i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily
injury.‖ Id. § 39-13-101(a)(1).
The evidence presented at trial established that Mr. Jones-Cage and Mr. Burgess
fired their guns into a crowd of people, causing Ms. Hervery to fear for her life. This
evidence is sufficient to sustain the aggravated assault convictions of Mr. Jones-Cage and
Mr. Burgess.
While Mr. McNary was holding a gun, Ms. Hervery did not testify that she saw
him with a gun. Nevertheless, Mr. McNary‘s actions, as described above, are sufficient
to show that Mr. McNary was ―in some way knowingly and voluntarily shared in the
criminal intent of the crime and promoted its commission.‖ Dorantes, 331 S.W.3d at 386
(citing Maxey, 898 S.W.2d at 757). Accordingly, the evidence is sufficient to sustain Mr.
McNary‘s conviction for aggravated assault based upon criminal responsibility.
C. Reckless Endangerment
The Defendants were convicted of reckless endangerment of Brittany Hervery,
J.N., and J.H. A person commits the offense of felony reckless endangerment ―who
recklessly engages in conduct that places or may place another person in imminent
danger of death or serious bodily injury‖ and uses a deadly weapon. T.C.A. § 39-13-
103(a), (b)(2). A person:
acts recklessly with respect to circumstances surrounding the conduct or the
result of the conduct when the person is aware of, but consciously
disregards a substantial and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a nature and degree that its
disregard constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as viewed from
the accused person‘s standpoint.
Id. § 39-11-106(a)(31).
The evidence presented at trial established that Mr. Jones-Cage and Mr. Burgess
opened fire into a crowd of people, which included Ms. Hervery, J.N., and J.H., placing
them in imminent danger of death or serious bodily injury. We conclude that the
evidence is sufficient to sustain the convictions of Mr. Jones-Cage and Mr. Burgess for
felony reckless endangerment. Moreover, Mr. McNary‘s actions, as described above, are
sufficient to show that Mr. McNary ―in some way knowingly and voluntarily shared in
the criminal intent of the crime and promoted its commission.‖ Dorantes, 331 S.W.3d at
386 (citing Maxey, 898 S.W.2d at 757). Accordingly, the evidence is sufficient to sustain
- 33 -
Mr. McNary‘s conviction for felony reckless endangerment based upon criminal
responsibility.
D. Firearm Convictions
Mr. Burgess was convicted of employing a firearm during the commission of a
dangerous felony having been previously convicted of a felony and possessing a firearm
after having been previously convicted of a felony involving the use or attempted use of
violence. Mr. Jones-Cage and Mr. McNary were convicted of employing a firearm
during the commission of a dangerous felony.
Tennessee Code Annotated section 39-17-1307(b)(1)(A) (Supp. 2012) prohibits
the possession of firearms by a person who ―[h]as been convicted of a felony, involving
the use or attempted use of force, violence, or a deadly weapon.‖ The evidence presented
at trial established that Mr. Burgess was in possession of a firearm, which he shot into a
crowd of people. At trial, Mr. Burgess stipulated that he had a prior felony conviction
that qualified under the statute. We conclude that this evidence is sufficient to support
Mr. Burgess‘ conviction for possession of a firearm after having been previously
convicted of a felony involving the use or attempted use of force.
Employing a firearm during the commission of a dangerous felony is a Class C
felony with a mandatory minimum sentence of six years in confinement. T.C.A. § 39-17-
1324(b)(1), (h)(1) (Supp. 2012). The mandatory minimum sentence increases to ten
years if the defendant had a prior felony conviction at the time of the offense. Id. § 39-
17-1324(h)(2). The term ―employ‖ means ―to make use of.‖ State v. Fayne, 451 S.W.3d
362, 370 (Tenn. 2014). With regard to the dangerous felonies, the trial court instructed
the jury as to attempted first degree murder and attempted second degree murder, both of
which constitute dangerous felonies under the statute. See T.C.A. § 39-17-1324(i)(1)(A),
(i)(1)(B).
When viewed in a light most favorable to the State, the evidence presented at trial
established that Mr. Jones-Cage and Mr. Burgess shot their firearms during the
commission of attempted first degree murder. Mr. Burgess stipulated at trial that he had
a prior felony conviction at the time of the shooting. The evidence is sufficient to support
Mr. Jones-Cage‘s conviction for employing a firearm during the commission of a
dangerous felony and Mr. Burgess‘ conviction for employing a firearm during the
commission of a dangerous felony having previously been convicted of a felony.
While evidence was presented at trial that Mr. McNary possessed a gun during the
offenses, no evidence was presented establishing that Mr. McNary shot or otherwise
made use of his gun during the commission of attempted first degree murder. The State
- 34 -
contends that the evidence is sufficient to support Mr. McNary‘s conviction under a
theory of criminal responsibility. However, the trial court did not instruct the jury on
criminal responsibility with regard to the firearm charges. Because the evidence
established that Mr. McNary possessed a firearm but did not employ the firearm, we
conclude that the evidence is insufficient to support Mr. McNary‘s conviction for
employing a firearm during the commission of a dangerous felony. We reverse the
conviction and remand the matter for a new trial on the charge of possession of a firearm
during the commission of a dangerous felony as a lesser-included offense. See Fayne,
451 S.W.3d at 370 (holding that possession of a firearm during the commission of a
dangerous felony is a lesser-included offense of employment of a firearm during the
commission of a dangerous felony).
IV. IMPEACHMENT TESTIMONY
Mr. Burgess contends that the trial court committed plain error in not allowing
defense counsel to impeach Ms. Niter‘s testimony at trial with her statement to the police.
Mr. Burgess did not raise this claim as a separate issue in his brief but argued it as a
collateral issue when addressing the sufficiency of the evidence. His entire argument in
his brief appears as follows:
Further, Appellant will argue later that due to the court prevented
[sic] a full and proper impeachment of the witness Shan[n]a Niter. At trial,
counsel for Appellant attempted to impeach the witness Niter with a
previously inconsistent statement (v.7, pg. 99-104). The trial court did not
allow counsel for Appellant to admit this information. (v.7, pg. 102)
Appellant argues that this was plain error and should invalidate the
conviction.
Mr. Burgess did not ―argue [the issue] later‖ or otherwise mention the issue in the
remainder of his brief. He provided no analysis and cited to no authority to support his
claim. Accordingly, this issue is waived. See Tenn. R. App. P. 27(a)(7)(A); Tenn. Ct.
Crim. App. R. 10(b).
V. DENIAL OF MISTRIAL
Mr. Burgess maintains that the trial court erred in denying defense counsel‘s
motion for a mistrial after the court reporter‘s equipment malfunctioned at trial. As a
result of the malfunction, the cross-examination of Ms. Niter by counsel for Mr. Jones-
Cage and a portion of the cross-examination of Ms. Niter by counsel for Mr. McNary
were not recorded. After Ms. Niter‘s testimony concluded, trial court informed the
parties of the malfunction. Mr. Jones-Cage and Mr. Burgess requested a mistrial. In the
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alternative, counsel for Mr. Jones-Cage requested that she be allowed to recross-examine
Ms. Niter in front of the jury.
In denying the motions, the trial court noted that no objections or evidentiary
issues were raised during the unrecorded proceedings. As a result, the trial court found
no reason for the defense to recross-examine Ms. Niter. The trial court also found that
Tennessee Rule of Appellate Procedure 24 provided a remedy in the event that a verbatim
recording was unavailable for appellate purposes.
A trial judge should declare a mistrial if manifest necessity arises. Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). Manifest necessity occurs when ―no
feasible alternative to halting the proceedings‖ exists. State v. Knight, 616 S.W.2d 593,
596 (Tenn. 1981). ―The granting or denial of a mistrial is within the sound discretion of
the trial court.‖ State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996); see
State v. Jones, 802 S.W.2d 221, 222 (Tenn. Crim. App. 1990). This court will only
disturb that decision if the trial court abused its discretion. State v. Adkins, 786 S.W.2d
642, 644 (Tenn. 1990).
The record reflects that the recording equipment malfunctioned for approximately
one hour during the course of the multi-day trial. There is nothing in the record
indicating to what Ms. Niter testified during this unrecorded period. As recognized by
the trial court, Tennessee Rule of Appellate Procedure 24(c) provides for a procedure
whereby an appellant may submit a statement of the evidence when a transcript is
unavailable. Mr. Burgess did not seek to submit a statement of the evidence of the
unrecorded portions of the trial in accordance with Rule 24(c) or otherwise demonstrate
that a statement of the evidence could not be accurately compiled. We conclude that the
trial court did not abuse its discretion in denying the motion for a mistrial.
VI. SENTENCING
Mr. Burgess and Mr. McNary contend that the trial court erred in imposing
consecutive sentences. The State maintains that the trial court acted within its discretion
in finding that Mr. Burgess and Mr. McNary were dangerous offenders and ordering
consecutive sentences. We agree with the State.4
4
Although we have reversed Mr. McNary‘s conviction for employing a firearm during
the commission of a dangerous felony and remanded the case for a new trial, we review the trial
court‘s imposition of Mr. McNary‘s sentence as it relates to that conviction in case of further
appellate review.
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In imposing consecutive sentences, the trial court found that the Defendants were
dangerous offenders whose behavior indicated little or no regard for human life. The trial
court also found that consecutive sentencing was necessary to adequately punish the
Defendant‘s criminal behavior. The trial court reasoned that the Defendants
[h]ad no hesitation in committing a crime when the risk was high and all
three of the following apply, circumstances surrounding the offense are
aggravated, confinement for an extended period of time is absolutely
necessary to protect society from the defendant‘s unwillingness to lead a
productive life, and the aggregate length of the sentences reasonably relates
to the offense.
The trial court stated that if it were to run the sentences for the two convictions for
attempted first degree murder concurrently, it ―would be sending the message that if
you‘re going to be mad at one person you might as well shoot everybody around them
because you can‘t get any more time because it will just all be run concurrent.‖
The trial court ordered that the Defendants‘ sentences for the two attempted first
degree murder convictions run consecutive to each other and to the conviction for
employing a firearm during the commission of a dangerous felony. The trial court noted
that consecutive sentencing for the firearm convictions was mandated by statute. The
trial court ordered that the sentences for the remaining convictions be served concurrently
to each other.
The trial court sentenced Mr. Burgess to twenty-five years for the attempted first
degree murder of Mr. Thomas, twenty years for the attempted first degree murder of Ms.
Niter, ten years for employing a firearm during the commission of a dangerous felony,
three years for being a convicted felon in possession of a firearm, three years for
aggravated assault, and one year for reckless endangerment. The trial court ordered that
the sentences for attempted first degree murder run consecutive to each other and to the
sentence for employing a firearm during the commission of a dangerous felony and
concurrent to the sentences for the remaining convictions, resulting in an effective
sentence of fifty-five years.
The trial court sentenced Mr. McNary to twenty years for the attempted first
degree murder of Mr. Thomas, fifteen years for the attempted first degree murder of Ms.
Niter, six years for employing a firearm during the commission of a dangerous felony,
three years for aggravated assault, and one year for reckless endangerment. The trial
court ordered that the sentences for attempted first degree murder run consecutive to each
other and to the sentence for employing a firearm during the commission of a dangerous
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felony and concurrent to the sentences for the remaining convictions, resulting in an
effective sentence of forty-one years.
A trial court‘s sentencing decisions are generally reviewed for abuse of discretion,
with a presumption of reasonableness granted to within-range sentences that reflect a
proper application of the purposes and principles of sentencing. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). Likewise, the ―standard of appellate review for
consecutive sentencing is abuse of discretion accompanied by a presumption of
reasonableness.‖ State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). The presumption
of reasonableness applies only when the trial court has provided reasons on the record
establishing at least one of the seven statutory bases for imposing consecutive sentences
delineated in Tennessee Code Annotated section 40-35-115(b). Id. at 861.
Tennessee Code Annotated section 40-35-115(b) allows a court to impose
consecutive sentences when ―[t]he defendant is a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation about committing a crime in
which the risk to human life is high.‖ T.C.A. § 40-35-115(b)(4). When the trial court
bases its decision to run sentences consecutively on the dangerous offender category in
Tennessee Code Annotated section 40-35-115(b)(4), it must make additional findings as
set out in State v. Wilkerson: that the aggregate sentence is ―‗reasonably related to the
severity of the offenses‘‖ and ―‗necessary in order to protect the public from further
criminal acts.‘‖ Pollard, 432 S.W.3d at 863 (quoting State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995)). If the trial court fails to make the requisite findings, the
appellate court may either conduct a de novo review to determine whether there is an
adequate basis for the imposition of consecutive sentences or remand to the trial court so
that it may consider the appropriate factors and make the proper findings. Id. at 864.
The convictions for employing a firearm during the commission of a dangerous
felony must run consecutively to the underlying dangerous felony by law. See T.C.A. §
39-17-1324(e)(1) (―A sentence imposed for a violation of subsection (a) or (b) shall be
served consecutive to any other sentence the person … is sentenced to serve for
conviction of the underlying dangerous felony.‖). The trial court instructed the jury that
the predicate dangerous felonies were attempted first degree murder and attempted
second degree murder and that the firearm charge related to count one, which was the
charge of attempted first degree murder of Mr. Thomas. Accordingly, Mr. Burgess‘ ten-
year sentence and Mr. McNary‘s six-year sentence for employing a firearm during the
commission of a dangerous felony must run consecutive to their sentences for the
attempted first degree murder of Mr. Thomas.
In imposing further consecutive sentencing, the trial court found that Mr. McNary
and Mr. Burgess were dangerous offenders whose behavior indicated little to no regard
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for human life and that they had no hesitation about committing the offenses in which the
risk to human life was high. In imposing partial consecutive sentences, the trial court
found that the aggregate sentences were reasonably related to the severity of the offenses
and that the sentences were necessary to protect the public from further criminal acts by
Mr. Burgess and Mr. McNary. The trial court made the requisite findings under
Tennessee Code Annotated section 40-35-115(b)(4) and Wilkerson, and we accordingly
grant the trial court‘s findings a presumption of reasonableness. See Pollard, 432 S.W.3d
at 863 (quoting Wilkerson, 905 S.W.2d at 938). The trial court properly considered the
purposes and principles of sentencing during the hearing, and it imposed partial
consecutive sentences after finding that the statutory requirements were met. There is
nothing in the record to show that the trial court abused its discretion.
VII. CUMULATIVE ERROR
Mr. Burgess asserts that he is entitled to a new trial based upon cumulative error.
He has failed to establish that any error occurred during the trial or that he is entitled to a
new trial as a result. Mr. Burgess is not entitled to relief regarding this issue.
VIII. CORAM NOBIS PETITION
After the final judgments were entered and the Defendants filed their notices of
appeal, Mr. Burgess filed a pro se petition for writ of error coram nobis on October 9,
2015. Mr. Burgess attached an affidavit from Mr. Jones-Cage dated February 4, 2015,
which Mr. Burgess claimed constituted newly discovered evidence of his innocence.
In the affidavit, Mr. Jones-Cage denied that Mr. Burgess was involved in the
shooting. Mr. Jones-Cage stated he, Mr. McNary, and Mr. Bohannon went to the
apartment complex to search for ―Little Glen.‖ Mr. Jones-Cage stated that he shot the
victim in the face with a ―357‖ following an argument and that as they were leaving, Mr.
Bohannon shot up the apartment complex with an ―AK47.‖ Mr. Jones-Cage claimed that
the victim ―upped a gun‖ and that ―things got out of hand.‖ According to Mr. Jones-
Cage, he implicated Mr. Burgess, Mr. McNary, and Mr. Bohannon because they took his
studio equipment after Mr. Jones-Cage fled to Atlanta. Mr. Jones-Cage said he contacted
Ms. Niter, told her that Mr. Burgess and the other men were involved, and provided her
with information regarding Mr. Burgess‘ tattoo.
The trial court entered an order denying Mr. Burgess‘ petition without a hearing.
The trial court found that Mr. Jones-Cage testified to the information contained in the
affidavit at trial and that as a result, the information did not constitute ―newly discovered‖
evidence.
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A writ of error coram nobis is an ―extraordinary procedural remedy,‖ filling only a
―slight gap into which few cases fall.‖ State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999)
(citation omitted). Tennessee Code Annotated section 40-26-105(b) provides that coram
nobis relief is available in criminal cases as follows:
The relief obtainable by this proceeding shall be confined to errors dehors
the record and to matters that were not or could not have been litigated on
the trial of the case, on a motion for a new trial, on appeal in the nature of a
writ of error, on writ of error, or in a habeas corpus proceeding. Upon a
showing by the defendant that the defendant was without fault in failing to
present certain evidence at the proper time, a writ of error coram nobis will
lie for subsequently or newly discovered evidence relating to matters which
were litigated at the trial if the judge determines that such evidence may
have resulted in a different judgment, had it been presented at the trial.
Our supreme court has stated the standard of review as ―whether a reasonable basis exists
for concluding that had the evidence been presented at trial, the result of the proceedings
might have been different.‖ State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007)
(citation omitted).
Coram nobis claims may be based upon any ―newly discovered evidence relating
to matters litigated at the trial‖ so long as the petitioner establishes that he or she was
―without fault‖ in failing to present the evidence at the proper time. Harris v. State, 102
S.W.3d 587, 592 (Tenn. 2003) (quoting T.C.A. § 40-26-105(b)). Coram nobis claims are
―singularly fact-intensive,‖ are not easily resolved on the face of the petition, and often
require a hearing. Id. at 593. The decision to grant or deny coram nobis relief rests within
the sound discretion of the trial court. Vasques, 221 S.W.3d at 527-28.
A petition for the writ of error coram nobis must relate: (1) the grounds and the
nature of the newly discovered evidence; (2) why the admissibility of the newly
discovered evidence may have resulted in a different judgment had the evidence been
admitted at the previous trial; (3) that the petitioner was without fault in failing to present
the newly discovered evidence at the appropriate time; and (4) the relief sought by the
petitioner. Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004). Newly
discovered evidence is evidence that was unknown to the defendant at the time of the
proceedings that are the subject of the coram nobis claim. Wlodarz v. State, 361 S.W.3d
490, 506 (Tenn. 2012) abrogated on other grounds by Frazier v. State, 495 S.W.3d 246,
248 (Tenn. 2016). Courts have held repeatedly that a coram nobis court is not required to
hold an evidentiary hearing when a petition for the writ of error coram nobis fails to meet
the necessary prerequisites for granting relief. Cole v. State, 589 S.W.2d 941, 941-43
(Tenn. Crim. App. 1979).
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In the affidavit, Mr. Jones-Cage stated for the first time that he shot Mr. Thomas in
the face and that Mr. Bohannon shot up the apartment complex. However, Mr. Jones-
Cage testified at trial that Mr. Burgess was not involved in the shootings and that he
implicated Mr. Burgess after Mr. Burgess stole several items from him. Likewise, Mr.
Jones-Cage similarly stated in his affidavit that Mr. Burgess was not involved and that
Mr. Jones-Cage only implicated him after Mr. Burgess took several items from him. The
jury rejected Mr. Jones-Cage‘s testimony and convicted Mr. Burgess of the offenses. Mr.
Burgess has failed to establish that a different judgment may have resulted had the
information in Mr. Jones-Cage‘s affidavit been presented at trial. We conclude that the
trial court did not abuse its discretion in denying Mr. Burgess‘ petition for writ of error
coram nobis without a hearing.
CONCLUSION
Based on the foregoing, we reverse Mr. McNary‘s conviction for employing a
firearm during the commission of a dangerous felony and remand the case for a new trial
on possession of a firearm during the commission of a dangerous felony as a lesser-
included offense. We note that with regard to Mr. Jones-Cage‘s judgments of conviction,
count one fails to reflect the convicted offense of attempted first degree murder and count
three, the conviction of employment of a firearm during the commission of a dangerous
felony, fails to reflect service of the sentence at 100 percent. Accordingly, we remand for
entry of corrected judgments as to counts one and three of Mr. Jones-Cage‘s convictions.
We otherwise affirm the judgments of the trial court.
____________________________________
JOHN EVERETT WILLIAMS, JUDGE
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