State of Tennessee v. Lesergio Duran Wilson ( 2019 )

01/17/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 19, 2018 Session
STATE OF TENNESSEE v. LESERGIO DURAN WILSON
Appeal from the Criminal Court for Davidson County
No. 2010-B-1227 Cheryl A. Blackburn, Judge
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No. M2017-01950-CCA-R3-CD
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A Davidson County grand jury indicted Lesergio Duran Wilson, the defendant, with first
degree premeditated murder as a result of the death of David Hurst, the victim.
Following trial, the jury returned a guilty verdict, for which the defendant received a life
sentence. On appeal, the defendant challenges the trial court’s exclusion of his experts,
denial of his motion to recuse the trial court, admission of certain photographic evidence,
admission of evidence related to the actions of the victim’s girlfriend following his death,
jury instructions regarding the use of deceptive practices by law enforcement, and
imposition of a consecutive sentence. Discerning no errors, we affirm the judgment of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J. and TIMOTHY L. EASTER, J., joined.
Paul Bruno, Memphis, Tennessee, for the appellant, Lesergio Duran Wilson.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
This case involves a murder for hire scheme in which the defendant is the shooter.
Early in the morning of October 14, 2009, the defendant and his girlfriend, Alicia Nicole
Williams, entered the trailer the victim resided in with his girlfriend, Doris Ann Williams.
Prior to their arrival, the victim’s girlfriend attempted to stage a break-in by strewing
items around the trailer. While the defendant’s girlfriend kept watch in the common area,
the defendant walked to the back bedroom and shot the victim, who was in bed sleeping,
in the head with a revolver. The victim’s girlfriend paid the defendant cash. In
furtherance of their plan and scheme, the defendant sprayed the victim’s girlfriend with
mace, and the defendant and his girlfriend left in the black Buick. The victim’s girlfriend
then ran to the neighbor’s residence to report the invasion, and the police were notified.
Detective Jack Stanley with the Metropolitan Nashville Police Department,
responded to the emergency call. When he arrived, the victim was not breathing and
appeared to have been shot multiple times in the side of the head. The trailer was in
disarray, and he could smell pepper spray. He helped secure the scene as officers
collected evidence, including bullet jackets and a throw pillow with bullet holes, and took
photographs of the scene. The victim’s body was transported to the State of Tennessee
Center for Forensic Medicine, where following autopsy, the medical examiner
determined the cause of death to be multiple gunshot wounds of the head and torso and
the manner of death to be homicide. A bullet fragment and hollow point bullet were
removed from the defendant’s body and secured as evidence.
Agent Alex Broadhag, a firearms examiner with the Tennessee Bureau of
Investigation (“TBI”), analyzed the bullet casings recovered from the crime scene and the
bullet taken from the victim’s body and determined they had all been fired through the
revolver found on the floorboard of the defendant’s girlfriend’s car. Agent Shelley Betts,
a forensic scientist and firearms identification expert with the TBI, analyzed the pillow
taken from the crime scene for gunshot residue and found “[r]esidues and characteristics .
. . on the solid side of the pillow which [were] consistent with those produced when a
firearm is discharged while in contact, or near contact with an object,” and “[r]esidues . . .
on the printed side of the pillow which [were] consistent with the passage of a projectile.”
On April 16, 2010, Officer Marty Reed with the Metro Nashville Police
Department stopped a light blue sedan driven by the defendant’s girlfriend. The
defendant was in the front passenger seat, and there was a loaded revolver in plain view
on the front passenger side floorboard. Both the defendant and the defendant’s girlfriend
were apprehended. When questioned following his arrest, the defendant confessed to his
role in the shooting. This Court previously summarized the defendant’s statement as
follows:
Following his apprehension, [the defendant] admitted to police that he fired
the shots after [the victim’s girlfriend] offered to pay him $1,000.00 to kill
[the victim], who she claimed had been abusing her. Less than twenty-four
hours prior to the shooting, [the defendant] stole a vehicle that he and his
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girlfriend later drove to [the victim’s girlfriend’s] trailer. He brought a gun
and rubber gloves with him to the scene of the shooting. When [the
defendant] arrived at [the victim’s girlfriend’s] home, he sat in the stolen
vehicle for a short time before entering the unlocked front door of the
trailer. He walked into the bedroom, placed a pillow over [the victim], and
shot [the victim] multiple times through the pillow, ostensibly for the
purpose of reducing the sound of the gunshots. Before [the defendant]
arrived, [the victim’s girlfriend] staged the trailer to look as if a robbery had
occurred. After the shooting, [the victim’s girlfriend] gave [the defendant]
more than $500 dollars but less than the $1000 they had agreed upon, and
she asked [the defendant] to spray her in the face with a can of mace to
make the staged robbery look more believable, which he did. He then fled
the trailer and abandoned the stolen vehicle near the Percy Priest Dam.
State v. Lersergio Duran Wilson, No. 2014-01487-CCA-R9-CD, 2015 WL 5170970, at
*1 (Tenn. Crim. App. Sept. 2, 2015), perm. app. denied (Tenn. Dec. 10, 2015). In
addition, the defendant admitted that sometime after the shooting, the victim’s girlfriend
gave him speakers for his car that did not fit, so he pawned them for approximately
$100.00.
Prior to trial, the defendant filed a motion to recuse the trial judge because he
previously presided over a trial that resulted in a guilty conviction against the defendant
for felony first degree murder and especially aggravated robbery. The jury imposed a
sentence of life imprisonment for the first degree murder conviction, and the trial court
imposed a sentence of twenty-five years of incarceration for the especially aggravated
robbery conviction. When ordering the sentences to run consecutively, the trial court
noted not only the heinous nature of the crimes for which the defendant was being
sentenced, but also the defendant’s execution-style murder of the victim in the present
matter. Upon hearing the guilty verdict and subsequent effective sentences of life in
prison plus twenty-five years, the defendant had a series of emotional and profane
outbursts that included calling the trial court names like “b****” and “mother-f*****”
and statements like, “F*** that trial. F*** the next trial. I’m cool, cool, cool.” In his
motion to recuse the trial court, the defendant argued the trial court’s prior knowledge of
the facts of this matter and its observation of the defendant’s outbursts at his prior trial
would make it impossible for the trial court to render unbiased and impartial rulings. The
trial court denied the motion. The defendant filed an expedited interlocutory appeal, and
this Court upheld the trial court’s ruling. See State v. Lesergio Duran Wilson, No.
M2013-00306-CCA-10B-CD, 2013 WL 543862 (Tenn. Crim. App. Feb. 13, 2013).
Following remand, the defendant filed a notice of intent to introduce the expert
testimony of Dr. Susan Rich and Dr. Jonathan Lipman during the guilt phase of trial. Dr.
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Lipman, a neuropharmacologist, was to opine regarding the defendant’s underlying
susceptibility to drug and alcohol addiction, his history of substance abuse, and the
impact that history would have had on the defendant the day of the murder and at the
time the defendant gave his statement to the police. Dr. Rich, a neuropsychiatrist who
evaluated the defendant, was to explain her diagnosis of Neurodevelopmental Disorder
Associated with Prenatal Alcohol Exposure (“ND-PAE”) and opine as to the manner in
which this disorder would have contributed to the defendant’s mental state at the time of
the victim’s death. The State filed a motion to exclude both experts, arguing their
opinions were speculative and unreliable. Following an evidentiary hearing during which
the trial court heard the proposed testimony of both experts, the trial court granted the
motion. The trial court allowed the defendant to file an application for interlocutory
appeal to this Court, and we accepted it. See State v. Lesergio Duran Wilson, No.
M2014-01487-CCA-R9-CD, 2015 WL 5170970 (Tenn. Crim. App. Sept. 2, 2015), perm.
app. denied (Tenn. Dec. 10, 2015),
On interlocutory appeal, the defendant argued the trial court erred when granting
the State’s motion to exclude Dr. Lipman and Dr. Rich because their proffered testimony
met the standard for admissibility set forth in State v. Hall, 958 S.W.2d 679 (Tenn. 1997),
State v. Ferrell, 277 S.W.3d 372 (Tenn. 2009), and State v. Tray Dontacc Chaney, No.
W2013-00914-CCA-R9-CD, 2014 WL 2016655 (Tenn. Crim. App. May 14, 2014),
perm. app. denied (Tenn. Sept. 18, 2014). Lesergio Duran Wilson, 2015 WL 5170970 at
*8. After carefully considering the testimony rendered by both experts during the
evidentiary hearing and the trial court’s subsequent ruling, this Court concluded the trial
court did not abuse its discretion because neither Dr. Lipman nor Dr. Rich could establish
that due to a mental disease or defect, the defendant lacked the capacity to premeditate.
Id. at *13. Therefore, pursuant to Hall and its progeny, their proffered testimony did not
meet the standard for admissibility. Id. We remanded the matter, and it proceeded to
trial. Id. at *14.
At trial, the State presented extensive evidence of the investigation into the
victim’s death that was consistent with the foregoing. In addition, the State called David
Wind, the owner of Hy’s Pawn Shop, Inc., and Eulaine Johnson, a former employee of
Cash America Pawn of Nashville, to testify regarding items pawned by the victim’s
girlfriend on November 9, 2009, December 11, 2009, and January 12, 2010, to
corroborate the defendant’s confession that the victim’s girlfriend offered to pay him
$1000.00 to kill the victim. Ms. Johnson testified that she was working at Cash America
Pawn November 9, 2009, and December 11, 2009. The victim’s girlfriend came in both
dates. On November 9, 2009, the victim’s girlfriend brought in two rings and received
$27.00 in cash for both. When the victim’s girlfriend returned on December 11, 2009,
she brought in a black toaster and received a $20.00 loan. Mr. Wind testified that the
victim’s girlfriend brought a ring into his pawnshop on January 12, 2010, and he bought
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it outright for $52.00. The State did not present any evidence that this money was
actually given to the defendant.
The defendant did not present any evidence on his behalf. After being charged
and hearing closing arguments, the jury found the defendant guilty of first degree
premediated murder. After a sentencing hearing, the defendant received a sentence of
life imprisonment with the possibility of parole. The trial court ordered this sentence run
consecutively to the sentence of life in prison plus twenty-five years that the defendant
was already in the process of serving. The defendant subsequently filed a motion for new
trial which was denied, and this timely appeal followed.
Analysis
I. Exclusion of Expert Witnesses
The defendant first contends the trial court erred when granting the State’s motion
to exclude experts during the guilt phase of trial. However, as pointed out by the State,
this Court previously resolved this issue in Lesergio Duran Wilson, 2015 WL 5170970,
making it the law of the case. See State v. Odom, 336 S.W.3d 541, 563-64 (Tenn. 2011)
(holding, “‘an appellate court’s decision on an issue of law is binding in later trials and
appeals of the same case if the facts on the second trial or appeal are substantially the
same as the facts in the first trial or appeal’”) (quoting Memphis Publ’g Co. v. Tenn.
Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998). As he
does now, the defendant argued in his prior appeal that the trial court erred when granting
the State’s motion because the expert testimony he wished to introduce during the guilt
phase of trial through Dr. Lipman and Dr. Rich met the standards for admissibility set
forth in State v. Hall, 958 S.W.2d 679 (Tenn. 1997), State v. Ferrell, 277 S.W.3d 372
(Tenn. 2009), and State v. Tray Dontacc Chaney, No. W2013-00914-CCA-R9-CD, 2014
WL 2016655 (Tenn. Crim. App. May 14, 2014), perm. app. denied (Tenn. Sept. 18,
2014). When previously considering this issue, this Court found:
[The defendant] contends that the trial court abused its discretion in
excluding Dr. Lipman’s and Dr. Rich’s testimony because this testimony
met the standard for admissibility established in Hall, Ferrell, and Tray
Dontacc Chaney. Focusing on Dr. Rich’s testimony, he questions whether
Hall stands for the proposition that an expert’s testimony is wholly
inadmissible at trial “if upon cross-examination, the mental health expert
provides any arguably conflicting testimony on the question of the absolute
inability of the defendant to form the requisite mental state.”
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[The defendant] is charged with first degree premeditated murder,
which is defined as “[a] premeditated and intentional killing of another.”
T[enn]. C[ode] A[nn]. § 39-13-202(a)(1). See id. § 39-13-202(a)(1).
Premeditation is defined as “an act done after the exercise of reflection and
judgment.” Id. § 39-13-202(d). “‘Intentional’ refers to a person who acts
intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire to engage in
the conduct or cause the result.” Id. § 39-11-302(a). In order for their
testimony to be admissible at trial, Dr. Lipman and Dr. Rich had to testify
that [the defendant] suffered from a mental disease or defect that rendered
him incapable of premeditating the victim’s death or acting intentionally in
killing the victim.
We conclude that Dr. Lipman’s testimony did not satisfy the test in
Hall. He stated that he was precluded from testifying that [the defendant]
suffered from a mental disease or defect because he was not a psychiatrist
or psychologist. Dr. Lipman asserted his belief that an individual would
have to be unconscious to be incapable of having a culpable mental state
and that [the defendant] was not unconscious at the time of the offense.
Consequently, he never testified that [the defendant] was incapable of
premeditating the victim’s death or acting intentionally in killing the
victim. Instead, Dr. Lipman opined that [the defendant’s] ability to
premeditate the victim’s killing was “dramatically impaired” and that his
ability to think clearly, formulate plans, and understand consequences was
“degrade[d].” Because Dr. Lipman’s testimony did not establish that [the
defendant] lacked the capacity to form the requisite mental states because
of a mental disease or defect, his testimony did not satisfy the Hall test.
Therefore, the trial court did not abuse its discretion in excluding it from
the guilt/innocence phase of trial.
We also conclude that Dr. Rich’s testimony did not satisfy the test in
Hall. While Dr. Rich did testify that [the defendant] suffered a mental
disease or defect, she failed to conclusively testify that [the defendant]
lacked the capacity to premeditate or act intentionally at the time of the
killing. As noted by the trial court, Dr. Rich testified in three isolated
instances that [the defendant] lacked the capacity to form the requisite
mental states; however, at all other times during her testimony, Dr. Rich
opined that [the defendant’s] mental diseases or defects “could have
impaired” or “impaired” his capacity to form the requisite mental states for
the offense. In her report, Dr. Rich opined that [the defendant’s] mental
diseases or defects “could have impaired his ability to act with
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premeditation” in the victim’s murder and that if [the defendant] was
intoxicated, it was “even more likely that his ability to act with
premeditation in the commission of that offense was impaired.” When the
trial court specifically and repeatedly questioned Dr. Rich about the
disparity between her three isolated instances of testimony and the opinions
in her report, Dr. Rich testified that she could only opine that [the
defendant’s] mental diseases or defects could have impaired his ability to
premeditate because she did not observe [the defendant] at the time of the
offense. We note that the standard in Hall “was designed to ensure that the
testimony regarding a defendant’s mental state is relevant to negate the
existence of the requisite mental state.” [State v.] Anthony Poole, [No.
W2007-00447-CCA-R3-CD], 2009 WL 1025868, at *11 [(Tenn. Crim.
App. Sept. 28, 2009), perm. app. denied (Tenn. Sept. 28, 2009)].
Accordingly, any equivocation in an expert’s testimony falls short of
negating the existence of the requisite culpable mental state. The fact that
[the defendant’s] mental diseases or defects could have impaired or did, in
fact, impair his capacity to form the requisite culpable mental states for the
offense does not meet the two-prong test in Hall, and the trial court did not
abuse its discretion in granting the State’s motion to exclude Dr. Rich’s
testimony. Because the testimony from both Dr. Lipman and Dr. Rich
failed to establish that [the defendant] lacked the capacity to form the
requisite culpable mental states because of a mental disease or defect, we
must conclude, based on established precedent, that the trial court did not
abuse its discretion in excluding it from the guilt/innocence phase of trial.
Lesergio Duran Wilson, 2015 WL 5170970, at *12-13.
It is well-settled that the law of the case doctrine “applies to issues that were
actually before the appellate court in the first appeal and to issues that were necessarily
decided by implication.” Memphis Publ’g Co., 975 S.W.2d at 306. There is no doubt the
defendant argued during his prior appeal that the trial court erred when granting the
State’s motion to exclude the testimony of Dr. Rich and Dr. Lipman, and this Court
concluded the argument lacked merit. While there are exceptions to this doctrine, they do
not apply here. Appellate courts may only reconsider an issue decided in a previous
appeal of the same case when:
(1) the evidence offered at a trial or hearing after remand was substantially
different from the evidence in the initial proceeding; (2) the prior ruling
was clearly erroneous and would result in a manifest injustice if allowed to
stand; or (3) the prior decision is contrary to a change in the controlling law
which has occurred between the first and second appeal.
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Id. at 306. The defendant has not raised one of these exceptions on appeal, and based on
our review of the record and applicable authority, they do not apply. The defendant’s
argument that the trial court erroneously precluded Dr. Rich and Dr. Lipman from
testifying during the guilt phase of trial is barred by the law of the case doctrine, so the
defendant is not entitled to relief on this matter.
II. Motion to Recuse Trial Court
The defendant next asserts the trial court erred when denying his motion to recuse
the trial court, finding no objective basis for recusal. The defendant admits he previously
raised this issue on accelerated interlocutory appeal and states he raises it again on direct
appeal to preserve it for potential appeal to the Supreme Court of Tennessee. The law of
the case doctrine also bars our consideration of this issue.
In his prior accelerated interlocutory appeal, this Court provided the following
procedural background:
The [defendant] has been indicted for premeditated first degree murder in
this case (2010-B-1227). He was also indicted for felony first degree
murder and especially aggravated robbery in a separate case (2010-C-
1912). The State elected to try the [defendant] in case 2010-C-1912 first,
and the [defendant] was convicted by a jury of the charged offenses. The
trial court sentenced the [defendant] to life plus twenty-five years.
Lesergio Duran Wilson, 2013 WL 543862 at *1.
The trial court imposed consecutive sentences in case 2010-C-1912 after finding
the defendant was “‘a dangerous offender whose behavior indicate[d] little or no regard
for human life and no hesitation about committing a crime in which the risk to human life
is high.’” Id. (quoting Tenn. Code Ann. § 40-35-115(b)(4)). In support of its finding, the
trial court referenced the statement the defendant gave to the police in the current matter,
stating:
And his statement about the other homicide, which was committed with the
same weapon, which was just a short time prior to that, would indicate not
only is he a dangerous offender but the aggregate term must relate to the
severity of the offenses. There’s two homicides. It’s necessary to protect
the public from further serious criminal conduct by the defendant. I think
the [State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)] factors apply.
Clearly two homicides in a short period of time involving execution-style
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matters would indicate we need to keep [the defendant] incarcerated as long
as possible to protect the public from further serious criminal conduct by
the defendant.
Id.
The same trial judge subsequently presided over the current matter, so the
defendant moved for recusal. The trial court denied the motion, and the defendant filed
an expedited appeal in which he argued the statements made by the trial judge during
sentencing indicated he could not be fair and impartial in the present matter. After
considering the applicable law, this Court concluded:
The fact that the trial court presided over the [defendant’s] first case,
which may share some similarities with the instant case and may even
involve some of the same evidence, is not a basis for recusal. See [State v.]
Reid, 213 S.W.3d [792,] 815 [(Tenn. 2006)]. Indeed, the trial court’s
knowledge of the facts of a case does not require disqualification. See id.
The [defendant] has not shown a reasonable basis for questioning the trial
court’s impartiality based upon the fact that it presided over the
[defendant’s] previous trial.
The main reason the [defendant] argues the trial court should recuse
itself, having already presided over the [defendant’s] first trial, is because
of certain comments the court made in the previous case which, according
to the [defendant], suggest it has already prejudged the [defendant’s] guilt
in the instant case.
...
Having reviewed the parts of the trial record included in the instant
petition, and considering the [defendant’s] argument in light of the trial
court’s order, this Court does not believe a reasonable person would
construe the trial court’s comments, when viewed in the context they were
made, as a prejudgment of the of the [defendant’s] guilt in this case. As the
trial court recognized, the comments were limited to the specific tasks it
was required to perform. They were not so pervasive that they will deny
the [defendant] a fair trial in this case. Id. at 821. Instead, the trial court’s
comments “were designed to expedite the litigation” in the previous case
and they do not establish that it has formed an opinion in this case. Reid,
213 S.W.3d at 816.
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In his recusal motion, the defendant further alleged an emotional and profane
outburst made by the defendant during sentencing brought the trial court’s ability to be
impartial in the trial of the present matter into question. When affirming the trial court’s
denial of the defendant’s motion to recuse on this basis, this Court concluded:
The [defendant] argues that recusal is also warranted because a
person of ordinary prudence, knowing that the [defendant] has already
made extremely profane comments toward the trial court, would find a
reasonable basis for at least questioning the trial court’s impartiality toward
the [defendant]. Again, this Court disagrees. The trial court offered a well-
reasoned explanation for declining to recuse itself on this ground: “most
reasonable people would anticipate that criminal court judges will
encounter occasional outbursts from defendants and will address such
actions appropriately without harboring any animosity toward the
defendant.” The portions of the transcript of the hearings provided to this
Court do not reveal any reciprocating hostility by the trial court toward the
[defendant]. Instead, the trial court acted with proper decorum, and there is
absolutely nothing before this Court which demonstrates anything remotely
indicative of a personal bias the trial court harbors toward the [defendant]
based upon his outbursts.
Id. at *7.
This Court’s prior conclusions of law as to the propriety of the trial court’s denial
of the defendant’s motion to recuse have become the law of this case. The defendant has
not alleged one of the exceptions to the law of the case doctrine applies, and based on our
review of the record, none do. The defendant is not entitled to relief on this issue.
III. Admission of Photographic Evidence
A. Photograph of Gunshot Wounds
The defendant next asserts the trial court erred when admitting Exhibit 1G, an up-
close photograph of the victim lying face down with multiple gunshot wounds to his face
and shoulder area, arguing the danger of unfair prejudice to the defendant outweighed the
photograph’s probative value. The State contends the photograph was the only picture of
the defendant’s injuries introduced at trial, helped explain the medical proof, supported
the State’s theory, and corroborated the defendant’s confession to the police, so it had
significant probative value. Moreover, its relative lack of gore did not create a risk of
prejudice that substantially outweighed its probative value. We agree with the State.
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Decisions as to the admissibility of photographic evidence lie within the sound
discretion of the trial court, and this Court will only reverse such decisions upon a finding
the trial court abused that discretion. State v. Willis, 496 S.W.3d 653, 726 (Tenn. 2016).
When deciding whether a photograph is admissible, the trial court must first determine
whether the evidence is relevant, meaning it has a “‘tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.’” Id. (quoting Tenn. R. Evid. 401). The
trial court must then weigh its probative value against any unfair prejudice the evidence
may cause and exclude it if “‘its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury.’” Id. (quoting
Tenn. R. Evid. 403). Unfairly prejudicial evidence has “‘an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.’”
Id. (quoting Tenn. R. Evid. 403, Advisory Comm. Cmts.).
Prior to trial, the defendant challenged the admission of various photographs of the
victim, including the photograph later marked at trial as Exhibit 1G, which the trial court
described as:
An up-close photograph of the left side of [the victim’s] body between the
left eye and the left armpit. The five gunshot wounds are visible; some
blood protrudes from each of the wounds, and what the [S]tate asserts is
stippling is visible. A ruler is held in the photograph to provide scale, and a
relatively small amount of pooled blood is visible on a section of bedsheets
between [the victim’s] left arm, chin, and left shoulder.
After reviewing the above-described photograph, the trial court found it would be
admissible at trial if properly authenticated. The image was “relevant to depicting the
number of wounds inflicted and the manner and location in which they were inflicted,
which in turn [wa]s relevant to establishing that the wounds were inflicted in an
intentional and premeditated manner.” The trial court noted photographic evidence
would not be cumulative because it was the only photograph depicting the victim’s fatal
injuries that would be introduced at trial. Moreover, while blood could be seen around
the gunshot wounds, the photograph was not “unduly gruesome,” so its probative value
was not outweighed by its potential for unfair prejudice.
Here, the trial court properly exercised its discretion when admitting Exhibit 1G.
After finding the image of the gunshot wounds was relevant to the victim’s manner of
death, the trial court noted the blood shown in the photograph was not so “unduly
gruesome” as to make it unfairly prejudicial. It is well-established that photographs of
victims “are admissible in murder prosecutions if they are relevant to the issues on trial,
notwithstanding their gruesome and horrifying character.” State v. Banks, 564 S.W.2d
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947, 950-51 (Tenn. 1978). We see no reason to depart from this clear precedent.
Furthermore, the photograph at issue was far from gruesome and horrifying. It instead
illustrated all five gunshot wounds and aligned two of the five wounds with a ruler to
depict size. The photograph was taken at the crime scene and contained some blood, but
given the circumstances surrounding the victim’s death, was properly characterized by
the trial court as “not unduly gruesome.” The defendant is not entitled to relief on this
basis.
B. Photograph of Gun Being Fired
The defendant next asserts the trial court erred when admitting a photograph of a
gun being fired because its probative value was outweighed by its “inflammatory effect.”
In response, the State contends the photograph was demonstrative evidence that aided the
jury in understanding the testimony of the State’s experts and corroborated the
defendant’s confession, and the defendant failed to show how he was prejudiced by the
photograph. We agree with the State.
At the outset, we note the defendant waived his right to appeal this issue by failing
to make a timely objection to the admission of the photograph at trial. See Tenn. R. Evid.
103 (stating, “[e]rror may not be predicated upon a ruling which admits . . . evidence
unless a substantial right of the party is affected, and . . . [i]n case the ruling is one
admitting evidence, a timely objection or motion to strike appears of record, stating the
specific ground of objection”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn.
Crim. App. 1988) (when the defendant fails to make a contemporaneous objection to the
admission of evidence, waiver applies). Based on our review of the record, the defendant
failed to file a motion to strike the photograph and did not object at trial to the admission
of the photograph as demonstrative evidence, so the issue has been waived.
Notwithstanding waiver, the defendant has not shown the trial court abused its
discretion when admitting the photograph into evidence. The admission of demonstrative
evidence also lies within the discretion of the trial court. State v. Christopher Swift, No.
W2013-00842-CCA-R3-CD, 2015 WL 2128782, *14 (Tenn. Crim. App. May 5, 2015)
perm. app. denied (Tenn. Oct. 24, 2016). To be admissible, generally the demonstrative
evidence must be relevant, and its probative value cannot be “‘substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.’” Id. (quoting Tenn. R. Evid. 403).
Here, the photograph was admitted as Exhibit 21 through Agent Brodhag, who
testified as an expert in firearms identification and opined the bullets collected from the
scene and the victim had been fired from the revolver seized from the defendant’s
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girlfriend’s vehicle. When testifying at trial, Agent Brodhag offered this explanation for
the image:
Q. I’m going to show you another picture and ask if you recognize it. . .
. What are we looking at here?
A. That’s a photograph of a revolver being fired. You can see – of
course, the bullet is going out the barrel, but you also get a lot of partially
burnt powder and burned powder and unburned powder as well coming out
of the muzzle in addition to a cloud of vaporous lead.
Q. And can you tell us a little bit about – the gases and everything that’s
coming out, would we ever see that manifested on an item?
A. You might see it on an item of clothing if someone was shot, for
example, at [a] close range[]. You wouldn’t see it at thirty feet away, but at
close ranges you might.
Later during the trial, Agent Betts, a forensic scientist with the TBI who analyzed
a pillow taken from the crime scene for gunshot residue, also testified as an expert in the
field of firearms identification. Agent Betts explained that as part of her investigatory
process, she conducted microscopic and chemical analyses on the pillow and opined that
“[r]esidues and characteristics were found on the solid side of the pillow which [were]
consistent with those produced when a firearm is discharged while in contact, or near
contact with an object,” and “[r]esidues were found on the printed side of the pillow
which [were] consistent with the passage of a projectile.” Agent Betts could not
determine whether the holes in the pillow were the result of one or two gunshots but
concluded the gun was a quarter of an inch to half of an inch from the pillow at the time it
was fired. Using the photograph of the gun being fired to aid in her explanation of the
marks she found on the pillow, Agent Betts engaged in the following exchange with the
prosecutor:
Q. And before we move on, I’m going to show you what’s previously
been marked as Exhibit Number 21 on the screen. Can we see maybe what
caused some of those markings or can you use this to further explain to the
jurors what you just told them?
A. I can. This is the muzzle end of the firearm when it’s fired. And
this is a revolver with about maybe a three inch barrel, two or three inch
barrel, I’m just guessing. But the majority of the residues that are coming
out from this area this way (indicating), those bright lights that are going
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off like flares, that’s probably gun powder particles that are leaving or
molted metal of some type. It might be lead shavings from the inside of the
barrel. This area that’s around here is from – that’s what we call lead
vapor, soot, or smoke (indicating). That’s the product of combustion. It’s a
smoke cloud that comes out. This area back here and also that you can see
right here (indicating) looks to me like – this is the end of the cylinder that I
talked about. This is where the cylinder gap residues would come out. So
they’re coming out in this area and also from the other side of the gun over
in this area (indicating). That’s the area that causes the burns and this
blackening at these two locations, and this is the end of the gun, the muzzle,
where all of this is coming out of.
The photograph at issue was relevant to Agent Brodhag’s opinion the revolver
found in the defendant’s girlfriend’s car was the same used to shoot the bullets found in
the victim and at the scene. It was also relevant to Agent Betts’ opinions as to why she
found gunshot residue on the pillow. The defendant failed to specify the prejudicial
effect this photograph had on his case, and we see none. The defendant is not entitled to
relief on this issue.
V. Evidence of the Pawning of Items by the Victim’s Girlfriend
The defendant next argues the trial court erred when allowing the State to present
evidence that the victim’s girlfriend continued to pawn items in the months following the
victim’s murder because it was irrelevant. The State contends the evidence was relevant
because it corroborated the defendant’s statement and supported the State’s theory the
victim’s girlfriend hired the defendant to murder the victim and continued to owe the
defendant money following the shooting. We agree with the State.
Rulings regarding the relevancy of evidence are “within the trial court’s discretion
and will not be reversed on appeal absent an abuse of that discretion.” State v. Biggs, 218
S.W.3d 643, 667 (Tenn. Crim. App. 2006) (citing State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997)). Rule 401 defines “relevant evidence” as “evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. This standard is a lenient one and merely requires the proffered evidence “tend to
prove a material issue.” Tenn. R. Evid. 401, Advisory Comm. Cmts.
At trial, the State sought to call Mr. Wind, the owner of Hy’s Pawn Shop, Inc., and
Ms. Johnson, a former employee of Cash America Pawn of Nashville, to testify regarding
items pawned by the victim’s girlfriend on November 9, 2009, December 11, 2009, and
January 12, 2010, to corroborate the defendant’s confession that the victim’s girlfriend
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offered to pay him $1000.00 to kill the victim. The defendant objected to their
testimonies on ground of relevancy. According to the defendant’s statement, the victim’s
girlfriend paid him less than their agreed upon price on October 14, 2009. Sometime
later, the victim’s girlfriend gave the defendant speakers that would not fit into his car, so
he pawned them for approximately $100.00. Based on the information provided by the
defendant in his statement, the trial court found the proposed testimony relevant and
allowed the witnesses to testify.
Ms. Johnson testified that she was working at Cash America Pawn November 9,
2009, and December 11, 2009. The victim’s girlfriend came in both dates. On
November 9, 2009, the victim’s girlfriend brought in two rings and received $27.00 in
cash for both. When the victim’s girlfriend returned on December 11, 2009, she brought
in a black toaster and received a $20.00 loan. Mr. Wind testified that the victim’s
girlfriend brought a ring into his pawnshop on January 12, 2010, and he bought it outright
for $52.00. The State did not present any evidence that this money was actually given to
the defendant.
Given the defendant’s admission that the victim’s girlfriend agreed to pay him to
kill the victim, failed to pay him the entire agreed upon amount at the time of the
shooting, and subsequently gave him speakers that the defendant was able to pawn for
cash, the trial court properly allowed the State to present the challenged evidence. While
not overwhelming, the testimony rendered by Mr. Wind and Ms. Johnson and the
paperwork documenting the transactions had a tendency to show the victim’s girlfriend
was in need of cash to finish paying the defendant for killing the victim. The trial court
did not abuse its discretion when finding this evidence to be relevant, and the defendant
did not challenge its admission on any other grounds. The defendant is not entitled to
relief on this issue.
VI. Jury Instructions
The defendant further asserts the trial court erred when instructing the jury that
“[l]aw enforcement is allowed to use deceptive practices when interviewing individuals.”
The State contends the defendant waived this issue by failing to cite any supporting law
in his brief, and despite waiver, it was a legally accurate instruction given by the trial
court as part of a larger statement. We agree the defendant has not properly briefed this
issue, so we decline to address it on appeal.
Every appellant’s brief must include an argument setting forth:
(A) [T]he contentions of the appellant with respect to the issues presented,
and the reasons therefor, including the reasons why the contentions require
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appellate relief, with citations to the authorities and appropriate references
to the record (which may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable standard of review
(which may appear in the discussion of the issue or under a separate
heading placed before the discussion of the issues)[.]
Tenn. R. App. P. 27(a)(7). “Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
[C]ourt.” Tenn. Ct. Crim. App. R. 10(b). In support of his contention the trial court
erroneously instructed the jury regarding the use of deceptive practices by law
enforcement, the defendant’s brief contains a single sentence stating, “This instruction
violated [the defendant’s] due process rights under the Fifth Amendment to the United
States Constitution as it unfairly rehabilitated the credibility of the law enforcement
officer who interviewed [the defendant].” The defendant failed to cite any law in support
of his argument, and such conclusory arguments fail to meet basic briefing requirements.
The defendant waived his argument regarding the propriety of the trial court’s jury
instructions by failing to properly brief the issue. See State v. Killebrew, 760 S.W.2d
228, 231-32 (Tenn. Ct. App. 1988) (issues not supported by argument, citations to
authority, and references to the record are waived and will not be considered on appeal).
The defendant is not entitled to relief on this issue either.
VII. Imposition of Consecutive Sentences
Finally, the defendant challenges the trial court’s decision to run his sentence of
life imprisonment in this case consecutive to his effective sentence of life imprisonment
plus twenty-five years imposed in Davidson County Case Number 2010-C-1912. The
defendant asserts the trial court may only impose consecutive sentences after finding the
period of confinement is necessary to protect the public from further criminal conduct by
the defendant. The defendant, however, failed to include the transcript from the
sentencing hearing with the record submitted to this Court on appeal, so he has waived
this issue.
The defendant had a duty to have all parts of the transcript prepared which were
“necessary to convey a fair, accurate and complete account of what transpired with
respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). This Court
is precluded from reviewing an issue when the appellant submits an incomplete record
that does not contain a transcript from the proceedings relevant to the issue presented for
review. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Without the
transcript from the sentencing hearing, we do not know what findings the trial court made
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prior to running the defendant’s life sentence consecutive to the sentence he was already
serving in Case Number 2010-C-1912. The defendant is not entitled to relief.
Conclusion
Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.
____________________________________
J. ROSS DYER, JUDGE
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