State of Tennessee v. Eddie Harris ( 2018 )

11/15/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 10, 2018
STATE OF TENNESSEE v. EDDIE HARRIS
Appeal from the Criminal Court for Shelby County
No. 16-02944 Chris Craft, Judge
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No. W2017-01706-CCA-R3-CD
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The Defendant-Appellant, Eddie Harris, was convicted by a Shelby County jury of first
degree premeditated murder (counts 1 and 2), first degree murder in perpetration of
robbery (counts 3 and 4), and felon in possession of a handgun (count 5), for which he
received an effective sentence of life plus twelve years. See T.C.A. §39-13-202 and §39-
17-1307 (2014). In this direct appeal, the Defendant argues that (1) the evidence is
insufficient to support his convictions of first degree premeditated murder and first
degree felony murder and (2) the trial court erred in allowing inadmissible hearsay.
Upon our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.
Claiborne H. Ferguson (on appeal), and Juni S. Ganguli (at trial), Memphis, Tennessee,
for the Defendant-Appellant, Eddie Harris.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Paul Hagerman,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
This case stems from the shooting deaths of Robert DeAngelo Dale and Aaron
“Rome” Moore, the victims, on February 10, 2014, at the Beacon Manor Apartments in
Memphis, Tennessee. On the night of the offenses, the Defendant had been at the
apartments with the victims and another friend, Andrew Barfield. Barfield left the three
men to run an errand, and when he returned, the apartment was locked, the lights were
turned off, and no one answered the door. Roughly twenty minutes later, a maintenance
man entered the apartment to investigate a reported water leak, which was pinkish in
color, and discovered the victims had been shot. One of the victims was found dead,
couched between the wall and a bed, and the other was found dying in the bathroom,
where the bathroom sink lay on top of him. The Defendant was no longer at the
apartment and later told family members that on the night of the offense “he had to do
what he had to do” and “he had killed.” Based on these events, the Defendant was
subsequently charged with the above offenses. The following proof was developed at the
June 28 through June 30, 2016 trial.
State’s Proof. Temiko Davis had been friends with Victim Robert Dale since
they were four or five years old, called him by his nickname “Angelo,” and would see
him every other day. On the day of the offense, she was with Victim Dale, and later that
night, had accompanied him to Victim Moore’s apartment in Beacon Manor. She had
known Victim Moore for only a short time and met him through her friendship with
Victim Dale. Davis testified that while at the apartment they sat, talked, and smoked
marijuana. About forty-five minutes later, the Defendant arrived. Davis had known the
Defendant for only a short period prior to the offense and considered him to be “an
acquaintance” of Victim Dale’s. She did not characterize the Defendant as a friend.
Davis explained that the Defendant had been invited to the apartment based on
something that had occurred earlier that day, which made Victim Dale feel “uneasy.”
Davis said that the Defendant acted “strange” because he was “communicating with [her]
on a level that they had never communicated on.” She said the Defendant was laughing,
joking, and at one point asked her to go to the store for him, which was unusual given the
length of time she had known him. Davis eventually left the apartment to run an errand
for Victim Dale and stopped at a store to purchase loose cigarettes for the Defendant.
She returned to the apartment and four to five hours later, Andrew Barfield, Victim
Dale’s cousin, arrived. Moments after Barfield arrived, Davis left. She testified that the
only people who remained at the apartment were Victims Dale and Moore, Barfield, and
the Defendant.
Davis confirmed that on the night of the offense she observed marijuana, cocaine,
and several guns at the apartment, including a large rifle and two handguns. She said that
the Defendant had been using cocaine that night and that he had removed “the big rifle”
from the corner and was “walk[ing] around the apartment wild with it,” which made her
“nervous.” She also observed Victim Dale with a handgun that night and another
handgun in the kitchen drawer. She acknowledged her signature on the advice of witness
form and the photographic display, admitted into evidence, upon which she identified the
Defendant as the individual who was with her in Victim Moore’s apartment on the night
of the offense.
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Davis was notified of the offense the morning after the shootings and went to the
hospital to visit Victim Dale, who was on life support. She confirmed that Victim Dale
died shortly thereafter. She said she never spoke with or saw the Defendant again after
the night of the offense.
On cross-examination, Davis acknowledged that she had a prior criminal history
consisting of two convictions of theft. She further admitted that although the Defendant
made her uncomfortable, she briefly fell asleep with him in the apartment. She agreed
that she never told police officers that Victim Dale seemed scared or nervous of the
Defendant. She confirmed that drugs were being sold from the apartment, and people
other than the four previously testified to came to the apartment while she was there.
Asked how many other people came to the apartment that night, Davis initially
equivocated but later said several people came to buy drugs. The only person she
recognized who came to the apartment was an individual named Rick, but she did not
know his last name. She affirmed that she did not hear any arguments between Victim
Dale and the Defendant while she was at the apartment that night. On redirect
examination, Davis acknowledged that in her prior statement to police she emphasized
that the Defendant was acting strangely, “as if he was trying to get [her] out of the
apartment.”
Andrew Barfield, Victim Dale’s first cousin, testified that on the night of the
offense, he went to “kick it” with Victim Dale at Victim Moore’s apartment. When he
arrived, Victims Dale and Moore, Davis, and the Defendant were there, but Davis left
shortly thereafter. Barfield had met the Defendant through his cousin, Victim Dale, and
had only known him for a short time prior to the night of the offense. Barfield confirmed
that there was marijuana, cocaine, and three guns in the apartment. Asked if the
Defendant in any way struck him as “strange” or “made [Barfield] nervous,” Barfield
replied,
Yeah. He was just walking around, fidgeting, looking out the
window, saying he waiting (sic) on somebody to come and get him and I
was just sitting back in the chair like just looking at him. I had already had
a funny feeling about him from the first two prior times that I met him.
Then when he wanted me to go to the store I wasn’t going to leave.
I was actually n’all, I ain’t fixing to go nowhere, but the only time I left was
that my cousin, Robert, told me to leave. Told me to go to the store.
Barfield affirmed that it was unusual for the Defendant to ask him to do anything for him
because Barfield had never done anything for the Defendant before the night of the
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offense. Barfield also said that the Defendant was “shadier than me and . . . [he] just had
a funny feeling about him.”
Barfield eventually left the apartment when Victim Dale asked him to go to the
store for condoms and cigarettes. Ten to fifteen minutes later, Barfield returned and
encountered John Brumit, the apartment complex maintenance man. Brumit asked
Barfield if he was going to Victim Moore’s apartment and if so, could he tell Victim
Moore that his water was running. The two men continued up the stairs to the apartment
and knocked on the door, which was locked. Although everything was turned on when
Barfield left the apartment, the television and lights had been turned off. Barfield began
calling and texting Victim Dale’s phone, but Victim Dale never answered.
Barfield said the maintenance man then left to go get a key to the apartment,
which made Barfield nervous. Barfield explained that he wanted to notify the people
inside the apartment of Brumit’s entry so Brumit would not be mistaken to be the police.
Barfield was also concerned that the drugs and guns in the apartment would be
discovered, and he set the cigarettes and condoms under the outside window unit of the
apartment and left. The next morning when Barfield discovered that Victims Dale and
Moore had been shot and killed his immediate thought was, “where Eddie at[?]”
Barfield acknowledged the advice of witness form and the photographic display,
admitted into evidence, upon which he identified the Defendant as the person he left
Victims Dale and Moore with on the night of the offense. A photograph taken on the
night of the offense showing where Barfield had left the condoms and loose cigarettes on
the air conditioning unit was also admitted into evidence. On cross-examination, Barfield
said that he saw Victim Dale place a .45 caliber handgun in the cushions of the couch;
however, Barfield never saw the Defendant with a weapon.
John Brumit, the apartment maintenance man, testified that on the night of the
offense he was lying in bed around midnight listening to music, when his next-door
neighbor called and told him that there was a water leak in her bathroom ceiling. Brumit
went to her apartment and observed pink water dripping from her ceiling, which was
unusual. He went to the above apartment, Victim Moore’s apartment, and noticed
Barfield knocking on the apartment door. Brumit also knocked on the door, but no one
answered. He left to retrieve a key from the office, and when he returned fifteen to
twenty minutes later, Barfield was gone. Brumit and another maintenance man unlocked
the apartment, heard the water leaking, and headed to the bathroom, which was located
through the bedroom. In the bedroom, they observed Victim Moore on the bedroom floor
with two bullet holes in his face. Brumit checked Victim Moore’s pulse and confirmed
that Victim Moore was dead. In the bathroom, they observed Victim Dale, who was still
alive, flailing on the floor and bleeding profusely. Brumit said the bathroom sink had
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been pulled off the wall and was on top of Victim Dale. Brumit moved the sink from
atop the victim and called 911. Several photographs depicting the apartment and the
victims as they were found that night were admitted into evidence. One of the
photographs showed the “big rifle,” which was positioned on the couch in the living
room. Brumit said he liked Victim Moore as a person and had coffee with him every
morning; however, Brumit opined that Victim Moore’s apartment was being used as a
“trap house” or a place where drugs may be used or sold.
Officer David Hallum of the Memphis Police Department testified that he and his
partner were the first officers to respond to the scene on the night of the offense. Upon
arrival, the maintenance man got his attention, and they entered the apartment. He
described the scene consistently with the testimony of the maintenance man. In addition,
he said although Victim Dale was still alive, he was unable to speak. In regard to
weapons, Officer Hallum did not discover any guns other than the rifle in the living room
on the couch. He also did not observe any cocaine or money in the apartment. Memphis
Police Officer Eric Hutchison, assigned to the crime scene investigation, testified that his
duties included locating, documenting, recording, and collecting evidence. During his
search of the apartment, Officer Hutchison found one large rifle on the couch, but no
other weapons. He recovered one .45 caliber casing in the bathroom and two in the
bedroom. One of the .45 caliber projectiles had fallen from Victim Moore’s body when it
was being removed. Drug paraphernalia and various other items were also recovered as
shown in twenty-six photographs admitted into evidence depicting the crime scene that
night.
The parties entered a stipulation, exhibit 9, agreeing that Victims Dale and Moore
were living persons prior to the offense and were now deceased. Doctor Erica Curry of
the Shelby County Medical Examiner’s Office performed the autopsy on Victims Dale
and Moore. In regard to Victim Moore’s autopsy, Doctor Curry observed two gunshot
wounds on the right side of his face with gunpowder stippling, which meant that the end
of a handgun was within inches of Victim Moore’s face when he was shot. The
trajectory of the bullet path was through Victim Moore’s face into his neck and his spinal
cord, with either wound killing him instantly. Additionally, Doctor Curry observed a
graze wound to Victim Moore’s right shoulder. She confirmed that Victim Moore’s
toxicology report was positive for cocaine and alcohol. From her tests, Doctor Curry
determined that Victim Moore’s cause of death was multiple gunshot wounds and the
manner of death was homicide. Six photographs displaying various aspects of Victim
Moore’s autopsy were admitted into evidence.
In regard to Victim Dale’s autopsy, Doctor Curry explained that he was taken to
the hospital on the night of the offense and pronounced dead three days later. Victim
Dale underwent a process by which he donated his organs before the medical examiner
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performed the autopsy. Nevertheless, Doctor Curry was able to determine the cause and
manner of his death. She testified that Victim Dale died as a result of a single gunshot
which entered behind his left ear and lodged in the base of his brain or skull. The entry
wound also had gunpowder or stippling burns. She recovered the bullet from the base of
Victim Dale’s brain and further observed a thermal burn on his right hand and forearm.
The results from Victim Dale’s toxicology were positive for metolazone and netrosed,
likely administered at the hospital, and marijuana. Various photographs depicting Victim
Dale’s autopsy were also admitted into evidence during her testimony.
Agent Eric Warren of the Tennessee Bureau of Investigation examined the bullets
recovered from the bodies of the victims and the cartridge casings recovered from the
scene and opined that the bullets and cartridge casings had been fired from the same gun,
a .45 automatic caliber. Three cigarette butts recovered from the scene were analyzed by
Agent Kristyn Meyers of the Tennessee Bureau of Investigation. The Defendant’s DNA
was found on one cigarette, and DNA matching both the Defendant and Victim Moore,
was found on another cigarette. Agent Meyers acknowledged this could have been due to
the two men sharing a cigarette.
Detective Kevin Lundy of the Memphis Police Department homicide division was
assigned to investigate the deaths of Victims Dale and Moore. He identified a phone at
trial that had been turned in to the Memphis Police Department the day after the
homicide. Detective Lundy testified that Angelo Murrell found the phone near
Derbyshire Street, about sixty yards from Victim Moore’s apartment. Detective Lundy
explained this area was significant to the investigation because it was later determined
that the Defendant had twice gone to a friend’s mother’s house on the night of the
offense. Finally, Detective Lundy confirmed that no murder weapon was recovered in
this case.
Angelo Murrell had been previously convicted of two counts of aggravated
burglary and, at the time of trial, was on probation. He testified that on February 11,
2014, around 8:30 a.m., he was walking on Trezevant Street toward his grandmother’s
house located on Derbyshire and found a cell phone with no battery near the sidewalk in
someone’s yard. He picked up the phone, observed that it was new, and decided to keep
it. Later that day, he purchased a battery for the phone, charged it, and eventually began
to use it. Murrell testified that Facebook notifications were on the phone and waited for
the owner of the phone to call. The next morning, Murrell observed there was a
voicemail message on the phone from “the person[’s] grandma saying, ‘Baby, get in
touch with me. Something happened in your apartment and I haven’t talked to you. . . .
So can you please call me.’” Murrell then went through the phone’s contacts and called a
contact named “girlfriend.” After speaking with the girlfriend, Murrell contacted the
police, showed them where he found the phone, and turned the phone in to officers.
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When asked if the phone was “bloody,” Murrell replied that the phone appeared “clean.”
He identified the phone admitted into evidence at trial as the same phone he found near
Derbyshire. On cross-examination, Murrell confirmed that he was convicted of the
aforementioned felonies and received probation two days after he turned the phone in to
the police.
Kristin Nelson testified that on the night of the offense she was with Ricky
Rogers, whom she characterized as her “friend guy.” They had gone to the 24-hour Auto
Zone on Summer Avenue to purchase a headlight for Rogers’s new car. While Nelson
and Rogers were waiting for the headlight to be installed, Nelson started receiving calls
on her cell phone from an unfamiliar phone number. She confirmed her phone number at
the time was ***-***-7292. She eventually answered the phone and a male voice asked
to speak to Rogers.1 Nelson gave the phone to Rogers and heard him tell the caller “don’t
go to my mama[’s] house. I’m not at my mama[’s] house.” Although she heard the
caller’s voice, she could not hear what he said. Nelson testified that the caller “called and
called and called to the point where [she] didn’t feel comfortable because he was trying
to get [them] to come and get [him].” She and Rogers found out about the shooting
deaths of Victims Dale and Moore the next morning. She confirmed that she had a prior
felony conviction of introducing contraband into a penal facility.
Memphis Police Officer Roosevelt Twilley testified that he examined the cellular
phone found by Angelo Murrell and extracted the call log from February 10 and 11
between 11:35 p.m. and 12:58 a.m. During that time, the phone made eleven phone calls
to the phone number ending in 7292.
Sonia Rogers testified that in 2014, she lived on Derbyshire in Memphis,
Tennessee with her now deceased son, Ricky Rogers. She explained that her son was
friends with the Defendant and he had been to her home at least twice prior to the
offense. On February 10, around midnight, she woke up to check the doors and turn the
lights off. She was then startled by a knock at her back door, and she yelled, “Who is it?”
She testified that the Defendant replied, “Eddie . . . Little Ricky there?” She told him her
son was not home, and the Defendant left. The Defendant returned to her home between
2:30 and 3:00 that morning asking for her son again, and she told him he was not there.
This time, the Defendant asked to come inside and use her phone to call his girlfriend
because his car had just stopped. She refused him entry, and the Defendant left.
Although she spoke to the Defendant through the house window, she said “he just didn’t
1
Here defense counsel objected based on hearsay. A bench conference was held and the trial
court determined that her testimony was “non-hearsay for the effect that it had on the listener . . . and not
offered for the truth of the matter asserted[.]”
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look his self . . . his eyes were pretty big.” On cross-examination, she confirmed that she
did not see any blood or weapons on the Defendant that night; he just looked “sweaty.”
The Defendant’s first cousin, Meosha Thomas, testified that on the evening of
February 12, the Defendant showed up at her doorstep, which was “shocking because he
didn’t come over to [her] house.” The Defendant told her, “don’t believe everything you
hear. . . . [T]hey said I killed some ni[----].” Thomas asked him why people would say
that and the Defendant responded, “because you know, they said I was with them, you
know, last.” She then asked if anybody was around to witness it, and the Defendant said,
“n’all (sic).” Thomas testified that she thought the Defendant was “just talking” because
he seemed “high.” The Defendant stayed at Thomas’s house for a few more hours before
leaving. Thomas saw the Defendant the next morning and gave him a ride to a gas
station. Thomas said during the ride, the Defendant was “fidgety.” At some point,
Thomas asked the Defendant about a gun and the Defendant replied, “it’s gone.” The
Defendant also told Thomas, “the police was (sic) at my mom’s house. I gots (sic) to
go.” Thomas said once she dropped the Defendant off at the gas station, she told him not
to come back, but he did not listen. He came back several times that same week and
Thomas’s boyfriend gave him a ride. During the drive, the Defendant was “ducking
down in the car.” Later that week, Thomas became aware that her twenty-three-year old
son, Mark Thomas, was with the Defendant, and her brother, Arthur Morrison, was called
to her house to help.
On cross-examination, Thomas testified that the Defendant first came to her house
on February 10, before the victims were killed, and spoke to several people. She also
admitted that the reason the Defendant never visited previously was because of an
underlying family feud between the two sides of the family. She said, “[the Defendant]
don’t (sic) come around cause he don’t (sic) like us.” On redirect, Thomas said the
family feud would not influence her to lie about the Defendant regarding murder.
Arthur Morrison, the Defendant’s cousin, testified that he received a phone call on
February 16 from his mother. Based on the phone call, Morrison was afraid for his
nephew, Mark Thomas’s life, and proceeded to drive to his sister’s house. Upon arrival,
he called Crime Stoppers and told them that he had information about the Defendant.
Morrison eventually met with the police and agreed to cooperate with them in
apprehending the Defendant. Morrison called the Defendant on the phone and told him,
“his family [] name was involved and mentioned in the murder of two people and that
[he] was afraid for the safety of my nephew and [he] also was afraid for [the Defendant’s]
safety.” In response, the Defendant said, “you know, [I] had to do what [I] had to do.”
The Defendant then told him he had plenty of drugs, but he needed money and a ride to
Nashville. The Defendant said, “[I] robbed two people and that he had to do what he had
to do. He got some money and [] some drugs from the robbery.” Although Morrison
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discussed a plan to pick up the Defendant, the Defendant was apprehended by the police
prior to reaching their meeting location. On cross-examination, Morrison testified that he
and the Defendant had a close relationship. He said a few weeks prior to the crime, the
Defendant had called and asked him to perform a marriage ceremony for the Defendant
and his girlfriend. Morrison said that during his February 16 phone call with the
Defendant, the Defendant conceded that he committed a robbery and killed.
Memphis Police Officer Robert Mear testified that on February 16, he was
dispatched to the area of Sycamore View and I-40 regarding a complaint. According to
dispatch, a gentleman called and said one of his family members called him asking to get
a ride out of town and referenced a shooting that occurred earlier that week. Officer
Mear, along with other officers, pulled over to set up a perimeter around the meeting
location. However, before the meeting, officers saw the Defendant running eastbound
behind some hotels. Officers chased the Defendant and located him shortly thereafter
hiding behind a storage building. The Defendant was taken into custody.
Defendant’s Proof. Vincent Harris-Henderson, the Defendant’s brother, testified
that there were two main sides of his family--Morrison and Harris. According to him, the
two sides had feuded since the 1980s. The two sides did not gather for family reunions,
did not hang out, and did not like each other. On cross-examination, Harris-Henderson
acknowledged that he knew nothing about the 2014 murders. He admitted that he was
not aware that the Defendant had called Morrison two weeks prior to the crime asking
Morrison to marry him and his girlfriend.
Following the conclusion of the proof, the jury convicted the Defendant as
charged. The State subsequently provided evidence that the Defendant pleaded guilty on
October 8, 2013, to attempting to possess cocaine with intent, and the jury convicted him
as charged in count 5 of being a felon in possession of a firearm. The trial court merged
the first degree premeditated and first degree felony murder convictions and sentenced
the Defendant to life, with a twelve-year consecutive term for the felon in possession of a
handgun conviction. The Defendant filed a motion for new trial on July 11, 2016, and an
amended motion for new trial on August 3, 2016, which was denied by the trial court on
August 16, 2017. A timely notice of appeal was filed on August 28, 2017.
ANALYSIS
I. Sufficiency of the Evidence. The Defendant argues that the evidence is
insufficient to sustain his convictions for first degree premeditated murder and first
degree felony murder. Specifically, he asserts that the State failed to prove the identity of
the perpetrator. The State responds, and we agree, that the evidence is sufficient to
support the Defendant’s convictions.
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On appeal, the State is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the
evidence, the standard of review applied by the appellate court is “whether, after
reviewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and must
reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
When reviewing issues regarding the sufficiency of the evidence, an appellate court shall
not “reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). The Tennessee Supreme Court has stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659
(citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)).
“The identity of the perpetrator is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975)). The State has the burden of proving the identity of the defendant as the
perpetrator beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn.
1998). The identity of the defendant as the perpetrator may be established by direct
evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d
at 793. In State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011), the Tennessee
Supreme Court rejected the long held view that “[i]n order to convict on circumstantial
evidence alone, the facts and circumstances must be so closely interwoven and connected
that the finger of guilt is pointed unerringly at the defendant and the defendant alone. A
web of guilt must be woven around the defendant from which he cannot escape and from
which facts and circumstances the jury could draw no other reasonable inference save the
guilt of the defendant beyond a reasonable doubt.” In doing so, Dorantes followed the
federal directive that when weighing the sufficiency of the evidence, circumstantial
evidence should be treated no differently than direct evidence.
Accordingly, the standard of review for sufficiency of the evidence “‘is the same
whether the conviction is based upon direct or circumstantial evidence.’” Dorantes, 331
S.W.3d at 379 (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The
identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005)
(citing State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993)). This court may
not substitute its inferences for those drawn by the trier of fact in cases involving
circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (citing State v.
Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). First degree murder is the premeditated and
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intentional killing of another person. Tenn. Code Ann. § 39-13-202(a)(1) (2006). In
relevant part, first degree felony murder is a killing of another person committed in the
perpetration of or attempt to perpetrate robbery. Id. § 39-13-202(a)(2).
Here, the Defendant asserts that the circumstantial proof presented at trial does not
“unerringly” point the finger of guilt at the Defendant, and the Defendant alone. In
support of his argument, the Defendant acknowledges the standard of review regarding
circumstantial evidence under Dorantes, 331 S.W.3d at 379. However, he attempts to
carve out an exception for review of the element of identity based upon State v. Lajuan
Harbison, No. E2015-02170-CCA-R3-CD, 2016 WL 4925632, at *4 (Tenn. Crim. App.
Sept. 14, 2016), no perm. app. filed (“when identity of the perpetrator is solely based
upon circumstantial evidence, the facts are required to be ‘so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the
Defendant alone.’” (quoting State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993)). In
Lajuan Harbison, the Defendant was convicted of various offenses, including attempt to
commit second degree murder based largely on circumstantial evidence. On appeal, he
challenged the sufficiency of the evidence supporting his convictions, arguing that the
State had failed to prove the identity of the shooter. Id. at *1-3.
The panel in Lajuan Harbison properly cited Dorantes for the proposition that the
standard of review is the same whether the conviction is based on direct or circumstantial
evidence. However, in further addressing the issue of identity, the panel relied upon the
following body of law in affirming the defendant’s convictions:
“Identity of the perpetrator is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Circumstantial evidence alone
may be sufficient to establish the perpetrator’s identity. State v. Reid, 91
S.W.3d 247, 277 (Tenn. 2002). When identity of the perpetrator is solely
based upon circumstantial evidence, the facts are required to be “so clearly
interwoven and connected that the finger of guilt is pointed unerringly at
the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d 561,
569 (Tenn. 1993); see Reid, 91 S.W.3d at 277. “The jury decides the
weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are
consistent with guilt [.]’” Rice, 184 S.W.3d at 662 (quoting Marable v.
State, 313 S.W.2d 451, 457 (Tenn. 1958)).
Lajuan Harbison, 2016 WL 4925632, at *4 (emphasis added). Based on the above law,
the Defendant argues that a different standard of review applies to proof of identity. We
have carefully reviewed the above excerpt from Harbison and disagree. The cases relied
upon in Harbison, namely Smith, predate Dorantes, which specifically rejected the
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separate standard of review for circumstantial evidence. Accordingly, our review of the
sufficiency of the evidence, including the element of identity, is dictated by Dorantes and
remains the same whether the conviction is based upon direct or circumstantial evidence.
Based on our review, the evidence demonstrates that the Defendant was the last
person with the victims at the apartment on the night they were killed. Barfield testified
that he left the apartment, and when he returned ten to fifteen minutes later, the door was
locked. Fifteen to twenty minutes after that, the maintenance man entered the apartment
and found one of the victims had been shot and killed, and the other victim was bloodied
and barely alive. Later, the Defendant showed up at Sonia Rogers’s house, nearly sixty
yards from the crime scene, looking for Ricky Rogers. Near Rogers’s house, Murrell
found a cell phone, which had numerous outgoing calls to Nelson, Ricky Rogers’s
girlfriend on the night of the offense. Although witnesses testified that there were drugs
and handguns present in the apartment on the night of the offense, the subsequent police
search did not recover any contraband. Days after the crime, the Defendant made
statements to Thomas regarding the robbery and killing. The Defendant told Morrison
that he “had to do what he had to do,” he had “robbed two people,” had received drugs
and money from the robbery, and “he had killed.” Although this evidence was primarily
circumstantial, the jury, through its verdict, determined that the Defendant shot and killed
Victims Dale and Moore, as was its prerogative. Accordingly, we conclude that the
evidence was sufficient for any rational juror to find the Defendant guilty of the offenses
as charged in the indictment, and he is not entitled to relief.
II. Admission of Evidence. The Defendant next argues that the trial court erred
in allowing the testimony of Kristin Nelson regarding the substance of a phone
conversation between Ricky Rogers and an unidentified male because it was inadmissible
hearsay. In response, the State argues that the statements were properly admitted by the
trial court as non-hearsay and for the effect it had on the listener. We agree with the
State.
“Generally, the admissibility of evidence rests within the trial court’s sound
discretion, and the appellate court does not interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d
799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial
court’s factual findings and credibility determinations in the course of ruling on an
evidentiary motion, are binding on a reviewing court unless the evidence in the record
preponderates against them. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015) (citing
State v. Gilley, 297 S.W.3d 739, 759-61 (Tenn. 2008)). However, whether facts as found
by a trial court prove that a statement was hearsay or fits under one of the exceptions to
the hearsay rule are questions of law subject to de novo review. Id. Hearsay is “a
statement, other than one made by the declarant while testifying at the trial or hearing,
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offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).
Rule 802 states that “hearsay is not admissible except as provided by these rules or
otherwise by law.” Tenn. R. Evid. 802. A statement introduced for its effect on the
listener is not hearsay. State v. Venable, 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980);
Neil P. Cohen et al., Tennessee Law of Evidence § 8.01, at 8-23 (5th ed. 2005) (“[A]ny
time the statement is used to prove the hearer or reader’s mental state upon hearing the
declaration, words repeated from the witness chair are not hearsay . . . because [the
statement] is not used to prove the truth of the matter asserted in the statement.”).
At trial, Nelson testified about receiving multiple phone calls from a number she
did not recognize, answering the phone, and having a male caller ask to speak with
“Ricky.” After Nelson was asked to testify to the substance of the conversation, defense
counsel objected based on hearsay. During a bench conference, the State explained that
Nelson would testify that Rogers told the person on the other end of the phone not to go
to Rogers’s mother’s house. We note here that the transcript during the bench conference
on this issue is largely indiscernible. It is unclear to this court the complete basis upon
which the State offered the testimony of Nelson. It is unclear whether the trial court
admitted Nelson’s testimony (1) to show the effect it had on the Defendant/caller as the
listener, as argued by the State; (2) to show the effect it had on Nelson as the listener; or
(3) the effect it had on both Nelson and the Defendant. The trial court explicitly found
that the testimony was not a declaration and admitted it as “non-hearsay for the effect that
it had on the listener.” The prosecutor then elicited the following testimony from Nelson:
Q: . . . You were handed the phone to Mr. Rogers; is that
correct?
A: Yes, sir.
Q: Could you hear that the male that was on the phone saying
something?
A: I could hear his voice, I couldn’t tell you exactly what he was
saying. I don’t know.
Q: Okay. Did you hear what Mr. Rogers was saying?
A: Yes, sir. I heard his -- I heard all his responses to whatever
he was conversating (sic) to him about.
Q: And what was Mr. Rogers telling this person who was calling
and calling your phone?
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A: It was like after the fourth phone call he asked -- well, he
didn’t ask, Ricky was like, don’t go to my mama house. I’m
not at my mama house.
Q: Don’t go to my mama’s house?
A: That’s exactly what he said.
Q: I’m not at my mama’s house.
A: Yes, sir.
Nelson then said she told Rogers that she did not feel comfortable picking up the
caller and the following testimony occurred:
Q: Okay. And Mr. Roger’s response other than saying don’t go
to my mother’s house I’m not there, what else did he say?
A: He didn’t have to say anything because I told him that we was
(sic) not going to pick him up because something just didn’t
seem right cause he kept on calling and calling and calling
and calling. So to me I didn’t feel right as to going to pick up
this person cause (sic) I don’t know who he is. So we didn’t
go pick him up.
To begin, we are compelled to note certain deficiencies in the Defendant’s brief
which complicate our review. First, the Defendant fails to explicitly provide the precise
testimony he contends was inadmissible hearsay. Next, the Defendant aptly cites State v.
Phillip Charles Saindon, Jr., No. M2001-01860-CCA-R3-CD, 2003 WL 354508, at *1
(Tenn. Crim. App. Feb. 14, 2003), for the general proposition that Nelson’s testimony
was “indirect hearsay . . . cloaked behind the pretense of eliciting the effect that the
statements had on [Nelson].” However, the Defendant fails to support his arguments
with proper citation to that case or explain to this court how Nelson’s testimony amounts
to the type of indirect hearsay cautioned against in Saindon. Given these deficiencies,
our review is somewhat limited. On this record and based solely on Nelson’s testimony
that Ricky Rogers said, “Don’t go to my mama house. I’m not at my mama house[,]” we
conclude that the trial court properly admitted Nelson’s testimony as non-hearsay. It is
evident that Nelson’s testimony regarding the phone call was not offered to prove the
truth of the matter asserted—that Ricky Rogers was not home. Accordingly, the
Defendant is not entitled to relief on this issue.
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CONCLUSION
Based upon the foregoing reasoning and analysis, we affirm the judgments of the
trial court.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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