State of tennesse v. Carlos Darnell Dixson ( 2022 )

10/06/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 10, 2022 Session
STATE OF TENNESSEE v. CARLOS DARNELL DIXON
Appeal from the Criminal Court for Davidson County
No. 2018-D-2757 Angelita Blackshear Dalton, Judge
___________________________________
No. M2021-01326-CCA-R3-CD
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Defendant, Carlos Darnell Dixon, was convicted after a jury trial of second degree murder,
a Class A felony, and two counts of aggravated assault, a Class C felony, and sentenced to
an effective thirty years in confinement. On appeal, Defendant argues that the evidence
was insufficient to support his conviction for second degree murder; that the State infringed
upon his Second Amendment right to bear arms by cross-examining him about his
experience with guns and gun ownership; and that his sentence for second degree murder
is excessive. After a thorough review of the record, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JILL BARTEE
AYERS and JOHN W. CAMPBELL, SR., JJ., joined.
Mark C. Scruggs, Nashville, Tennessee, for the appellant, Carlos Darnell Dixon.
Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Amy D. Hunter,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural History
This case arises from a May 11, 2018 incident in which a dispute in the parking lot
of an Antioch hookah bar resulted in Defendant’s shooting and killing Cesar Reza (“the
victim”), who was accompanied by his girlfriend, Roshni Patel (“Ms. Patel”), and his
childhood friend, Arturo Vazquez Santillan (“Mr. Vazquez”). The Davidson County
Grand Jury indicted Defendant for first degree premeditated murder relative to the victim
and two counts of aggravated assault with a deadly weapon relative to Ms. Patel and Mr.
Vazquez.
At trial, Patricia Gutierrez testified that the victim was her son and that he passed
away just after his twenty-fourth birthday. She stated that the victim and Ms. Patel had
been in a romantic relationship and had intended to marry in the future.
Ms. Patel testified that she met the victim when they were both in the eighth grade
and that they grew up together. She said that she met Mr. Vazquez in ninth grade and that
the victim had known Mr. Vazquez for a longer period of time. She said that, on birthdays
and other important occasions, she and the victim would arrange to spend time with Mr.
Vazquez.
Ms. Patel testified that May 10, 2018, was Mr. Vazquez’s birthday. After Ms. Patel
and the victim watched a Predators hockey game at a downtown Nashville bar, they met
Mr. Vazquez at a parking garage. Ms. Patel stated that the trio walked around downtown
and called other friends who met them at another bar called Crazy Town. Ms. Patel stated
that she and the victim drank beer that evening; she did not recall if Mr. Vazquez was
drinking.
Ms. Patel testified that, at some point after midnight, the group decided to go to
Arabian Palace, a hookah bar located in an Antioch strip mall. Ms. Patel and the victim
traveled in the victim’s red four-door Chevrolet Silverado pickup truck, and Mr. Vazquez
followed them in his vehicle. When they arrived, no parking spots were available near
Arabian Palace, so Mr. Vazquez parked at a nearby restaurant. The victim then pulled over
to allow Mr. Vazquez to enter the truck before the trio searched for closer parking. Mr.
Vazquez sat in the backseat behind the victim. Ms. Patel testified that, while they were
looking for a parking spot, they all smoked marijuana. She described the victim’s
demeanor as “fine, relaxed, [and] happy[.]”
Ms. Patel identified a diagram of the parking lot in front of Arabian Palace, which
showed the strip mall and a row of parking spots in front of it. Ms. Patel stated that the
parking spots were partially occupied and that, as they drove around a small median, they
encountered two cars parked beside the median that made it difficult to pull around. She
noted that the two cars were not in parking spots. Ms. Patel testified that one of the cars, a
sedan, tried to back out and that the victim’s truck became “stuck.” Ms. Patel identified
the car’s driver as Defendant and stated that she had never seen Defendant before this
incident. According to Ms. Patel, Defendant stepped out of his car and told them to “let
him go first” because “[he] was there first.” She stated that the truck’s windows were
rolled up and that Defendant did not address anyone in particular. Ms. Patel stated that the
victim rolled down the front passenger-side window, which was closest to Defendant, and
that Defendant repeated himself and added that the victim could have Defendant’s parking
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spot. Ms. Patel said that the victim told Defendant that they were stuck and “just needed
to go around.” When asked to describe the victim’s tone, Ms. Patel stated that he did not
yell, although she also stated that “the only reason why he was probably even yelling is so
. . . [Defendant] could hear us.” She added that “there was like no anger” in the victim’s
voice.
Ms. Patel testified that Defendant partially entered his car “to grab something” for
about thirty seconds. When Defendant emerged, he looked at Ms. Patel, lifted the right
side of his shirt to show her a gun, and said, “Do we have a problem here?” Ms. Patel
stated that she did not see Defendant’s gun during their initial interaction. She said that
Defendant’s tone of voice was loud and angry and that she was “[t]errified.”
Ms. Patel testified that the victim rolled up her window, opened the driver’s side
door, stepped out onto the running board, and spoke to Defendant “over the top of the
truck.” Ms. Patel denied that she or Mr. Vazquez exited the truck and that the victim ever
stepped onto the pavement. Ms. Patel stated both that the victim did not “say anything” to
Defendant and that the victim told Defendant that they were unarmed and “harmless.” Ms.
Patel denied that anyone cursed at Defendant. Ms. Patel noted that Mr. Vazquez was
texting with other friends on his cell phone during the incident. Ms. Patel denied that any
of them made gestures toward Defendant. Ms. Patel also denied that the victim had a
weapon or any object in his hand.
Ms. Patel testified that, when the victim rolled up her window, she knew “something
was going to happen” and that she grabbed the victim’s shirt as he stood on the running
board and urged him to leave because “it [was] not worth it.” Ms. Patel then saw Defendant
draw the gun from his waistband, and she ducked. Ms. Patel stated that she heard a
gunshot; that the bullet went past her head; that she believed she would die; and that she
felt the victim’s shirt leave her hand as he fell. Ms. Patel stated that the victim was ducking
inside the truck when he was shot.
Ms. Patel testified that she looked up, and the victim and Mr. Vazquez were outside
the truck. After hearing bystanders yelling, Ms. Patel called 911. She stated that her door
was closed and that she exited the truck when the 911 operator asked her who had been
shot. Ms. Patel walked around the truck and saw the victim lying on the ground with “blood
everywhere.” The 911 operator asked Ms. Patel to check the victim’s pulse, but she could
not find one.
Ms. Patel testified that the police arrived, placed her in a squad car, and took her to
the police station for questioning. Ms. Patel said that she gave a statement and cooperated
with the investigation. Ms. Patel subsequently identified Defendant as the shooter in a
photographic lineup and stated that she was one hundred percent confident in her
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identification. Ms. Patel estimated that Defendant was about fifteen feet away from her
and that a “plaza light” above them illuminated the area.
On cross-examination, Ms. Patel acknowledged that her statements to the police and
at the preliminary hearing differed in some respects from her trial testimony, particularly
regarding her marijuana use; she had omitted such information from the police interview,
and at the preliminary hearing, she only admitted to having used marijuana at 4:00 p.m.
She affirmed that she smoked marijuana in the afternoon, drank one or two beers in the
evening, and smoked marijuana again for about one minute while the victim looked for a
place to park.
Ms. Patel acknowledged that she now knew that the victim was “extremely
intoxicated” based upon his blood alcohol content and that he had been smoking marijuana
“just a few seconds” before the shooting, although she denied that the victim appeared to
be intoxicated. Ms. Patel also denied that she was minimizing what she and the victim did
leading up to the shooting.
Ms. Patel testified that she did not know how close the victim’s truck was to
Defendant’s car. She affirmed that Defendant could not back up his car to leave. She
agreed that most of the parking spaces in front of Arabian Palace were occupied. Although
Ms. Patel did not recall whether other cars were driving past the victim’s truck, she stated
that they were blocked from behind by a car. Ms. Patel denied that the victim would have
had to move his truck in order for Defendant to leave. She explained that Defendant had
backed up “just slightly” and that, if Defendant had pulled forward, the victim could have
pulled around him. Ms. Patel opined that Defendant had enough space to pull forward and
drive away. When confronted with her failure to mention Defendant’s ability to drive away
at any previous interview, Ms. Patel denied that she came to this conclusion at trial.
Ms. Patel testified that the only thing she said during the exchange between
Defendant and the victim was, “[T]hat’s not a parking spot.” She noted that she “didn’t
say it loud enough” for Defendant to hear her, and she denied saying “anything insulting
or offensive.” Ms. Patel stated that the victim “was addressing the situation the entire
time.” She denied that the victim exited the truck and walked around it to talk to Defendant.
Ms. Patel acknowledged that, at some point the situation became “more tense,” but she did
not recall whether Defendant or the victim said anything aside from the statements to which
she had already testified. She stated that, other than asking whether they had a problem
and showing his gun, Defendant did not say anything insulting or threatening to them. Ms.
Patel opined that no reason existed to prompt Defendant’s showing them his gun. When
asked whether she pulled the victim back into the truck because “things were getting . . .
out of hand,” Ms. Patel claimed that she did so because Defendant showed her his gun.
She agreed that the victim saw the gun, but she did not recall what the victim said about
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the gun. Ms. Patel denied, though, that the victim said, “[S]o what, so what,” or anything
similar.
Ms. Patel acknowledged her statement to police that Mr. Vazquez stepped out of the
truck to pull the victim back in. Ms. Patel clarified that Mr. Vazquez also stepped onto the
truck’s running board and that both truck doors were open. Ms. Patel denied that she said,
“[L]et’s not start this,” and she did not recall whether Mr. Vazquez made that statement.
Ms. Patel said that, “for the safety of all of [them],” she and Mr. Vazquez felt it necessary
to pull the victim into the truck.
Ms. Patel stated that the police interviewed her at about 3:30 a.m. after the shooting.
She denied that she and Mr. Vazquez discussed the shooting with one another before they
were taken to the police station. Ms. Patel acknowledged telling the 911 operator that she
did not know what happened. She explained that she was concerned with getting help for
the victim and that “[she] was not worried about discussing what had just happened.” Ms.
Patel acknowledged that, during her thirty-five-minute police interview, she did not cry
and was calm.
On redirect examination, Ms. Patel testified that, in the recording of her police
interview,1 she did not appear to be intoxicated, slur her words, or act confused. She
testified that she and Mr. Vazquez pulled the victim back into the truck because they were
unarmed, “a gun was involved,” and “it wasn’t worth losing a life[.]” Ms. Patel asserted
that they just wanted to go home safely.
Shkelzen Zymeri testified that, on May 11, 2018, he was working as a security guard
at Arabian Palace. He stated that his duties included checking identification and patting
down patrons for weapons before they entered. Mr. Zymeri said that Defendant came to
the bar once or twice per week, that Defendant usually parked beside the median in front
of the bar, and that on the night of the shooting, he patted down Defendant as he entered
Arabian Palace between 11:00 p.m. and 12:00 a.m.
Mr. Zymeri testified that he was at his post outside of the front door between 1:00
and 2:00 a.m. when he heard a gunshot in the parking lot about thirty feet away. Mr.
Zymeri saw Defendant, who had a gun in his hand, “jump[] into a car” and drive off
quickly without turning on his headlights. Defendant later testified that after the shooting,
the car parked in front of his sped away, allowing him to drive forward and out of the
parking lot. Mr. Zymeri testified that he walked to the victim and attempted to render aid,
but the victim passed away within seconds. He noted that a “panicking” woman with blood
1
The recording was not played for the jury or entered as an exhibit. Ms. Patel used the recording
to refresh her recollection during a recess.
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on her shirt and another man were with the victim, although he did not interact with them.
Mr. Zymeri testified that he did not hear an argument in the parking lot prior to the shooting
and that, if he had heard one, he would have followed an unspecified protocol. Mr. Zymeri
denied that he saw a weapon around the victim or his companions.
On cross-examination, Mr. Zymeri testified that it was a busy night and that many
cars were parked in front of the bar; he noted that “the club was letting out” and no new
patrons were entering at the time of the shooting. Mr. Zymeri was standing outside the
bar’s front door. He stated that people parked beside the medians in front of Arabian
Palace, that he was not required to ask them to move, and that he did not consider parking
beside the medians to be a problem.
Erica Beasley testified that, on March 11, 2018, she was also working security
outside Arabian Palace’s front door when she heard a gunshot. Ms. Beasley saw a red
truck “sitting . . . horizontally” with a door open and a person lying outside of the front
driver’s-side door. She estimated that the truck was as far from her as the witness stand
was from the State’s counsel table.2 Ms. Beasley stated that she had not heard any arguing
“out of the normal” before the gunshot, and she noted that, if she had heard an argument
or someone needing help, she would have responded to it. Ms. Beasley did not see any
weapons around the red truck.
On cross-examination, Ms. Beasley testified that Arabian Palace closed at about
2:00 a.m. and that the shooting occurred within two hours of closing time. She was not
sure if people were still entering the club at the time of the shooting, but she agreed that
the security team would have been checking identification and patting down anyone who
was entering. She affirmed that people were also leaving. Ms. Beasley stated that people
speaking loudly was common in the parking lot. Relative to her testimony that she heard
no arguing, Ms. Beasley acknowledged that she was “a pretty good distance away” from
the truck.
Metro Nashville Police Department (MNPD) Investigator Jefferson Hughes
testified that, on May 11, 2018, he was working as a patrol officer and responded to a
shooting call at Arabian Palace. Investigator Hughes said that the first officer on the scene
was applying pressure to the victim’s wound. Investigator Hughes checked the victim’s
pulse and, finding none, began chest compressions. After a medic arrived, Investigator
Hughes took Ms. Patel to his patrol car to isolate her from other witnesses until she could
be transported to the police station for an interview. Investigator Hughes said that he was
not involved with any of the other witnesses but that they would have been similarly
isolated from one another. He affirmed that he checked Ms. Patel for weapons before she
entered his police cruiser and that he found none on her person. He denied that any
2
This measurement was not otherwise defined in the record.
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weapons were located at the crime scene. Investigator Hughes noted that detectives
attempted unsuccessfully to obtain surveillance recordings from Arabian Palace.
On cross-examination, Investigator Hughes testified that he received the dispatch
call at 1:20 a.m. and arrived at around 1:25 a.m. When asked whether the scene was
unsecured for ten minutes, during which time people could have done “whatever they
want[ed] to with weapons,” Investigator Hughes responded that he did not know.
Mr. Vazquez testified that he was serving a sentence in New York for July 2018
convictions for criminal possession of a weapon and “menacing” and that he had been
transported to the Davidson County jail to facilitate his testimony at Defendant’s trial. Mr.
Vazquez stated that he did not have any other criminal convictions and that, before the
victim’s death, he did not own a weapon. He said that he procured the weapon after the
shooting “for [his] own safety.”
Mr. Vazquez testified that he and the victim were friends for about twelve years and
that they had celebrated his birthday together for the four years preceding the shooting.
Mr. Vazquez had known Ms. Patel since their freshman year of high school. On May 10,
2018, Mr. Vazquez called the victim and asked if he wanted to go out; the victim responded
affirmatively, and Mr. Vazquez met him and Ms. Patel at a parking lot around 10:00 p.m.
They walked to a bar and spent time “on Broadway” until midnight with other friends. Mr.
Vazquez stated that he drank one or two Corona beers and that the victim and Ms. Patel
also drank one or two beers each.
Mr. Vazquez testified that the group decided to go to Arabian Palace and that he
drove himself, while Ms. Patel rode with the victim. Mr. Vazquez parked his car in front
of a barber shop and got into the victim’s truck, sitting behind the victim. When asked
whether they smoked marijuana, Mr. Vazquez responded that they were “about to” but
never did because of the shooting.
Mr. Vazquez testified that, over the course of their friendship, he had seen the
victim’s demeanor after drinking beer and smoking marijuana. Mr. Vazquez stated that
had never seen the victim “act crazy” when drinking and smoking. Mr. Vazquez said that,
on the night of the shooting, the victim was “chilled” and calm.
Mr. Vazquez then gave the following account of the relevant events:
So we [were] trying to make a turn and I guess the guy thought that
we were trying to take his parking spot, but we were just really trying to turn
and he got out of his vehicle and he was quick to pull up his shirt and show
a gun. I don’t know I guess he thought we were trying to hit his car. I don’t
know what he thought, but he got out quick and he showed his gun and I
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guess [Ms. Patel] was trying to explain to him, tell him that you know we’re
not trying to take your parking spot.
Mr. Vazquez later identified the man as Defendant. Mr. Vazquez stated that Defendant
was parked “in the curb,” which he described as “a drive-thru[.]” Mr. Vazquez stated that
Ms. Patel’s window was initially closed when she was talking to Defendant and that she
started to roll it down. Mr. Vazquez said that he told her not to engage Defendant in
conversation and encouraged the victim “to keep going” but that passing cars blocked their
way. Mr. Vazquez stated that, in addition to telling Defendant that they did not want his
parking spot, Ms. Patel asked what Defendant’s “problem” was.
Mr. Vazquez testified that he could not hear if Defendant had spoken or replied to
Ms. Patel because the truck’s windows were closed. He agreed that Ms. Patel had the best
opportunity to see and hear Defendant because she was closest to him. Mr. Vazquez stated
that, although he could not hear Defendant, when Defendant lifted his shirt, he discerned
from Defendant’s body language that he had asked if they “had a problem[.]” Mr. Vazquez
said, “[H]e was upset obviously. He was upset over I guess his parking spot. I’m not sure.”
Mr. Vazquez described the victim’s and Ms. Patel’s tone of voice as “just regular. It[ was]
not loud arguing, but [was] more like . . . trying to, you know, make their point that [they
were] not trying to take his parking spot.”
Mr. Vazquez testified that, as he was telling Ms. Patel not to say anything, the victim
said, “[I]f anybody is going to explain to him or going to tell him something . . . it’s going
to be me” because the victim was driving. Mr. Vazquez stated that the victim opened his
door and “lean[ed] over the windshield” to address Defendant while standing on the
running board. He denied that the victim ever stepped onto the pavement. Mr. Vazquez
said that, at first, the victim and Defendant seemed to argue about the victim’s not wanting
the parking spot but that they seemed to “c[o]me to an agreement,” and Defendant seemed
to calm down.
Mr. Vazquez denied that the victim, Ms. Patel, or he had a weapon in the truck. He
similarly denied having spoken to Defendant during the incident and that anyone in the
truck cursed at Defendant. Mr. Vazquez stated that Defendant’s showing his gun made
him feel afraid for his and his friends’ lives, and he opined that they did nothing to
Defendant “for him to take it to that level that quick.”
Mr. Vazquez testified that he kept telling the victim to stop, keep going, and ignore
Defendant. He stated that the victim began to step back inside the truck but “jumped back
up” and resumed arguing after Defendant said something. Mr. Vazquez said that he
grabbed the victim’s pants and pulled him back into the truck and that, one or two seconds
later, the victim was shot.
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Mr. Vazquez testified that, when the gunshot occurred, Ms. Patel’s window was
closed and that he leaned around Ms. Patel to see Defendant. Mr. Vazquez stated that he
saw Defendant point his gun, shoot at the victim, and then leave in his car. Mr. Vazquez
did not realize anyone had been wounded until the victim opened his door and stepped out
of the truck. The victim had blood “gushing” from his mouth and chest, and Mr. Vazquez
got out of the truck and helped the victim lie down on the ground. Mr. Vazquez tried to
help the victim by holding pressure on the wound. He said that both he and Ms. Patel
called 911.
Mr. Vazquez testified that the police arrived, placed him in a patrol vehicle alone,
and took him to the police station for an interview. On May 16, Mr. Vazquez viewed a
photographic lineup. He stated that he chose a photograph but that he was not one hundred
percent certain; as a result, the lineup form reflected that he did not make a selection.
On cross-examination, Mr. Vazquez testified that the victim and Ms. Patel had been
downtown watching the hockey game for about four hours before he joined them. He said
that they smoked marijuana in the parking garage before going to a bar. Mr. Vazquez
stated that they each had one beer there, then went to Crazy Town for about thirty minutes;
Mr. Vazquez had another beer. He did not recall telling the police that Ms. Patel drank
whiskey and cola at Crazy Town; however, he acknowledged that his memory was more
accurate at the time of the interview.
Mr. Vazquez testified that, when the victim stepped onto the truck’s running board,
the truck was two or three feet from the back of Defendant’s car and that Defendant could
not pull forward because a car was parked in front of him. He noted that Defendant could
have pulled out “like anybody else[,] just go back and forth[.]” Mr. Vazquez did not
remember the victim’s pulling forward and revving the truck’s engine. Mr. Vazquez stated
that the victim could not pull around Defendant’s car because cars were passing by on
“[b]oth sides.” He agreed that there would have been space for the victim to pass
Defendant once traffic had cleared. Mr. Vazquez later affirmed that the lane had cleared
by the time he pulled at the victim’s clothing and urged the victim to drive around
Defendant. Mr. Vazquez denied that the victim told Defendant, “I see your gun, you are
not scaring me,” or “I’m not afraid of you, I’m not afraid of that gun[.]” He also denied
telling the police that the victim had an “attitude.”
Mr. Vazquez testified that Defendant took “maybe a couple of steps” during the
argument and was not close enough to touch the victim’s truck. Mr. Vazquez estimated
that the encounter lasted between one and two minutes. Mr. Vazquez denied getting out of
the truck during the argument.
MNPD crime scene investigator Claire VonDohlen testified that she photographed
the crime scene, including the victim’s truck. The photographs reflected a marijuana
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“cigar” on the ground beside the driver’s side of the truck; that the front passenger-side
window in the truck was intact but shattered and had a hole near the front door frame; a
bullet “defect” on the inside of the passenger door; a bullet fragment that landed on the rear
driver’s-side door handle ledge; and a shell casing on the ground outside the truck.
MNPD Officer Warren Fleak testified that he processed the victim’s truck once it
arrived at the police laboratory and that he did not find any weapons in it.
MNPD Sergeant Robert Smith testified that he took measurements and data used to
create a “Faro” scan of the scene. The scan was an interactive program that displayed an
aerial photograph of the crime scene as it appeared after the police secured the scene,
including the victim’s truck, as well as a 360-degree panoramic view from three vantage
points around scene. The program allowed the user to measure the distance between any
two points on the aerial photograph or panoramic depiction.
MNPD Detective Desmond Sumerel testified that, during the day on May 11, 2018,
he obtained a surveillance recording from a barber shop in the same strip mall as Arabian
Palace; although the camera did not capture the shooting, the recording showed cars
passing and had sound. The recording reflected a puttering sound consistent with a
machine’s running and showed the partially-occupied strip mall parking lot. Periodically,
people could be heard talking, including several instances in which women yelled or
laughed loudly. Detective Sumerel identified the victim’s truck driving past the camera.
About two minutes later, bangs were audible, which Detective Sumerel identified as a
single gunshot and an unrelated motorcycle’s backfiring repeatedly. Several cars quickly
drove through the parking lot toward an exit, one of which did not have its headlights
illuminated.
Matthew Alvarado testified that he spent time with the victim, Ms. Patel, and Mr.
Vazquez at Crazy Town before the shooting and that he arrived at Arabian Palace after the
shooting occurred but before police arrived. Mr. Alvarado described the victim’s
demeanor earlier in the evening as relaxed. Mr. Alvarado admitted that he had a gun in his
truck that evening but reiterated that he was not present during the shooting. He denied
that the victim or anyone else in their group had a weapon.
On cross-examination, Mr. Alvarado denied that Mr. Vazquez or the victim ever
carried a gun. Mr. Alvarado stated that, at Crazy Town, he had one or two beers. Mr.
Alvarado denied smoking marijuana with the victim and Mr. Vazquez.
MNPD Detective John Joyce testified that he responded to the crime scene and
spoke to Ms. Patel and the victim’s friends, Mr. Alvarado and “Mildred.” Detective Joyce
described Ms. Patel as upset, and he denied that she was armed. He spoke to Arabian
Palace’s owner, who informed him that their surveillance cameras only “recorded live
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footage” and did not save it. Security guards at Arabian Palace reported to Detective Joyce
that they had not heard anything in the parking lot prior to the shooting.
MNPD Detective Phillip Klarer testified that he was lead detective in the shooting
investigation and that the victim had no weapons, ammunition, or firearm-related items on
his person. He identified two shirts removed from the victim at autopsy, as well as a spent
bullet and bullet fragment removed from the victim’s body.
Detective Klarer testified that he served Defendant with an arrest warrant in
Rutherford County on May 17, 2018, and that he obtained a search warrant for Defendant’s
home and vehicle. Police found a .9mm Glock magazine and two unfired .9mm bullets in
Defendant’s home and an additional .9mm Glock magazine and one unfired .9mm bullet
in Defendant’s car. No firearms were found in the searches.
Detective Klarer identified two iPhones recovered from Defendant’s car. Pursuant
to a search warrant, police recovered text messages and internet searches from the hours
and days after the shooting. Police composed a summary of relevant items, which reflected
as follows:
Type Author Date and Time Content
Searched 5/11/2018 8:39 a.m. best criminal lawyer in nashville tn
items
“Jhamar” 5/11/2018 10:28 a.m. Try and get rescheduled today for a later
Instant time and I would go ahead and fly out to
Messages the West Coast and don’t tell anybody
because people be talking
5/11/2018 10:48 a.m. Don’t say sh-- u good
5/11/2018 11:54 a.m. If anything in that house u need to move it
5/11/2018 12:58 p.m. Just go out West cuz leave please man
Leave ain’t no judge or lawyer on yo side
go away and take some time and think and
that way u can still get money
Searched 5/11/2018 6:10 p.m. manslaughter
items
Searched 5/11/2018 6:10 p.m. manslaughter tn
Items
Searched 5/11/2018 6:12 p.m. tennessee voluntary manslaughter
Items sentence
Searched 5/11/2018 6:13 p.m. first degree murder tn
Items
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Searched 5/11/2018 6:14 p.m. manslaughter tn time
Items
Detective Klarer testified that his review of Defendant’s cell phone data did not
reflect that Defendant performed similar internet searches before the shooting. He stated
that, from the time of the shooting until Defendant’s arrest, Defendant performed numerous
internet searches for the news, “hookah bar shooting,” and topics related to the shooting.
On cross-examination, Detective Klarer testified that Defendant was arrested near his home
in Rutherford County and that no evidence existed to suggest Defendant “went out West”
before his arrest.
Dr. Erin Carney, an expert in forensic pathology, testified that she performed the
victim’s autopsy. The victim was five feet, eleven inches tall and weighed 168 pounds.
Dr. Carney stated that the victim had a gunshot wound on the right side of his chest under
the collarbone; the bullet traveled through the top of the right lung and both lobes of the
left lung, injuring the “right brachial cephalic vein” and the aorta before becoming lodged
in the victim’s shoulder blade. The victim also had a superficial graze wound on the left
side of the chest that was consistent with his being wounded by “some sort of bullet
fragment,” lacerations to the victim’s face, right hand, and right forearm likely caused by
the shattered auto glass, and an abrasion to the right elbow likely caused during
resuscitation measures. She stated that the glass-related injuries were consistent with the
victim’s leaning into the vehicle when he was shot. Dr. Carney testified that the victim’s
blood sample tested positive for alcohol and marijuana metabolites. His blood alcohol
content was 0.135. Dr. Carney determined that the victim’s cause of death was the gunshot
wound to the chest and that the manner of death was homicide.
After the State rested, Defendant presented proof. Myrone Sanders testified that,
on the night of the shooting, he arrived at Arabian Palace about 1:00 a.m. and parked
between Arabian Palace and another club, Cloud 9, in the strip mall. Mr. Sanders stated
that, as he stood in the parking lot smoking a cigarette and waiting for a friend to arrive, he
heard two people arguing about a parking space or “someone needing to move.” Mr.
Sanders estimated that he was between fifteen and twenty feet away from the people. Mr.
Sanders said that he saw a large red truck with its driver’s side door “wide open,” the
victim3 standing on the pavement beside the “front quarter panel,” and Defendant standing
“right outside” the driver’s side door of a car.
According to Mr. Sanders, Defendant told the victim to back up and “let [him] out.”
The victim responded, “I’m not moving anywhere. I don’t [have] to move,” and a third
man exited the truck and tried to persuade the victim to get back into the truck. The victim
3
Although Mr. Sanders was unfamiliar with both men and did not know their names, he answered
questions which assumed the victim’s and Defendant’s identities.
- 12 -
said, “I don’t got to get in. I don’t got to go nowhere. He don’t scare nobody. He ain’t
running nothing . . . . We got guns too. He don’t scare nobody. We ain’t got to move.”
Mr. Sanders stated that the victim
[got] to his truck and he was on his truck, half-way in, half-way out, like,
what’s up, you know, what you want to do? We ain’t going nowhere. We
got guns. You want me to move, move us, you know, and he reached down
like he was fixing to get his gun and the next thing I know[,] . . . I heard a
shot and everybody took off, you know. I took off.
Mr. Sanders testified that he was never contacted by the police and that he was
introduced to Defendant by two friends from Chicago. Mr. Sanders met Defendant for the
first time one week before trial.
On cross-examination, Mr. Sanders testified that he never called the police or the
District Attorney’s Office with this information. He denied hearing about the shooting on
the local news, and he noted that he did not watch the news. Mr. Sanders acknowledged
that he had prior convictions for attempted carjacking in 2002, aggravated burglary in 2012,
and felony theft in 2012.
Mr. Sanders testified that he was from Memphis. Mr. Sanders did not know how
his friends knew Defendant, and he was unaware that Defendant had ties to Memphis. Mr.
Sanders averred that, although he was initially uncertain about talking to defense counsel,
he met Defendant at defense counsel’s office after Defendant called him.
Mr. Sanders indicated on the crime scene diagram where he was parked in relation
to the victim’s truck, and he stated that he had to look over the tops of other parked cars to
see the truck. He acknowledged that, according to the diagram, he would have been about
sixty-two feet away from the victim’s truck. Mr. Sanders maintained, however, that he
was about twenty-five feet away.
Mr. Sanders agreed that the victim’s saying, “We have guns too,” indicated an
awareness that Defendant had a gun. Mr. Sanders affirmed that the victim was standing
on the truck’s running board and reaching into his truck when he was shot. He agreed that
he did not see the victim or anyone in the truck with a weapon. Mr. Sanders did not hear
anyone other than the victim speak to Defendant. Mr. Sanders said that he saw Defendant
standing outside his car “in the street” by a median. Mr. Sanders stated that he saw a bullet
strike the victim, but he did not see the victim fall to the ground.
Mr. Sanders testified that, although he did not see the victim with a gun, he knew
the victim was retrieving a gun because “[the victim] was adamant. He was furious like he
had a point to prove, like he wasn’t fixing to move his truck . . . . [H]e was going to show
- 13 -
that he wasn’t scared[.]” Mr. Sanders stated that, after the victim yelled about also having
guns, Mr. Sanders realized that “everybody . . . [had] a gun but [him],” and he left.
Defendant testified that, on May 10, 2018, he woke up from a nap to find that a
friend to whom he owed eighty dollars had called him several times. The friend asked to
be paid back and told Defendant that he would be at Arabian Palace that evening.
Defendant stated that he was tired and did not want to go out, but the friend insisted that
he needed the money, and Defendant agreed to meet him. Additionally, a female friend
sent Defendant a text message around 10:00 p.m. asking him to pick her up from a club;
he agreed to pick her up after he delivered the money to his friend at Arabian Palace.
Defendant arrived at Arabian Palace at 11:00 p.m.
Defendant testified that he had been a regular customer at Arabian Palace for three
or four years because it was convenient to his home. Defendant stated that he was carrying
a .9mm Ruger pistol on his hip, which was his habit, and that he generally left the gun in a
locked center console when he entered establishments like Arabian Palace that prohibited
weapons. He said that, when he returned to his car, he always transferred the gun back to
his hip. When asked why he carried a handgun, Defendant responded that he had two
friends who were “gunned down at hookah bars.” Defendant averred that he was “not a
felon” and had never been in trouble; he noted that he began to carry the handgun when
state law changed to allow him to carry one without a permit.
Defendant stated that he arrived at Arabian Palace before midnight, when it was less
crowded, and parked beside the median out of habit. He noted that he was not going to
stay long and that several parking spaces between Arabian Palace and Cloud 9 were
available. He said that he “went and spoke to everybody,” including the owner, a bartender,
and some acquaintances, and that he had one drink. Defendant stated that he left because
another friend asked him to bring them chicken wings.
Defendant testified that, as he left Arabian Palace, he visited a food truck in the
parking lot and returned to his car. After putting the food in the passenger seat, Defendant
sat down, unlocked the middle console, and placed his gun in his hip holster. Defendant
began backing out because a “gray Yukon XL” was parked in front of him “bumper-to-
bumper.” He said that he did not see the victim’s truck and that Ms. Patel yelled, “Watch
out where the F you going. You almost backed into us.” Defendant stated that Ms. Patel’s
window was down and that the victim argued with her and told her to be quiet. At this
point, Defendant was in his car, and his window was down.
Defendant testified that he told Ms. Patel that he was trying to leave and asked if
they were going into Arabian Palace. Ms. Patel replied negatively, and Defendant asked if
she was sure and told her that they could have his parking spot. He stated that he was not
yelling or upset, but he noted that, as Ms. Patel yelled that he had almost hit them, they
- 14 -
“had words” and he told her, “[D]ude, shut up nobody almost hit you.” At this point, the
victim closed Ms. Patel’s window, told her to be quiet, and exited the truck. Defendant
said that he turned around and looked out his window to see if he had hit the victim’s truck
and that the victim walked around to stand between the truck’s headlights. Defendant
assumed that the vehicles had collided, exited his car, and stood in the open door.
Defendant referenced Mr. Vazquez’s testimony that the victim and Defendant reached a
“mutual agreement,” and Defendant added that both of them determined that the vehicles
had not collided. Defendant said that he had taken one or two steps toward the back of his
car to inspect it and that he was standing “between [his] back and front door[.]”
Defendant testified that the victim was “automatically . . . p---ed off” and that
Defendant offered him the parking spot, which the victim declined. Defendant noted that
he never pulled up his shirt and that the victim did not initially notice Defendant’s gun.
Defendant stated that the argument became more “heated,” and he described his interaction
with the victim as follows:
At that point I am still standing by my door. He sees my gun because
. . . I had on like some skinny jeans and a white tee, so he sees my gun . . .
sticking out and he was like, [“]You think I’ve got to move because you got
a gun?[”] I said, “Dude, what is your problem?” I said, “I’m trying to give
you this spot. I’m just trying to leave.”
I told him that several times . . . . I don’t know if he fe[lt] like he was
being disrespected or that I was trying to tell him what to do, but he just kept
getting madder and madder. I knew, I wasn’t going to say I knew, but he
was drunk. He was slurring his words. [“]I don’t give a f--k. I’ll move. I’m
not going to move. You can’t make me move. You can’t make me move.[”]
And when he saw my gun is when the gun situation came about.
[“]You think I’m scared. I got to move because you got a strap. You got a
strap?” I’m like, [b]ro, you tripping. I’m leaving . . . . He is still, [“]You
can’t tell me what to do. I don’t care that you got a gun. We all got straps.
Do something. I got a strap too. What you want to do? I got a strap too.[”]
Defendant stated that Ms. Patel yelled at the victim to “stop it” and get back into the
car. Defendant said that he asked the victim if he could leave, that the victim turned around,
and that the argument began again. He stated that Ms. Patel did not speak to him because
her window was closed and that she continued yelling at the victim to get back into the
truck. Defendant said that Mr. Vazquez also said, “[L]et’s go,” but did not speak otherwise.
Defendant testified he turned to enter his car, assuming that the victim would let
him leave. According to Defendant, the victim walked back around the truck to the driver’s
- 15 -
side while yelling that they had guns too and that he did not have to move his vehicle.
Defendant estimated that this exchange lasted at most four minutes and that he repeatedly
told the victim that he was trying to leave, that they could have his parking space, and that
it was “not that serious.” Defendant assumed that the victim began talking about guns
because he saw Defendant’s gun and was intimidated. Defendant denied ever bringing up
a gun during the argument.
Defendant testified that the victim opened the truck door, stepped onto the running
board or “panel,” and yelled, “That is what I thought. What you want to do? . . . [W]e got
straps too. Wait a minute. We got straps too.” Defendant stated that Mr. Vazquez opened
his door and stepped out onto the pavement and that Defendant saw the victim reach down.
Defendant did not see Ms. Patel’s pulling on the victim’s clothing. Defendant continued:
[W]hen [the victim] reached down and came back up I didn’t even
wait to see if he had a gun because I was already scared at that point because
I was there by myself. I didn’t know if they had a gun or not. I didn’t know
if he was playing, talking about we got straps too.
I didn’t know how serious he was . . . . We were arguing, but when he
saw my gun and he got to yelling, I assume, he did, he got to yelling about
the straps too, . . . that is when I shot him.
Defendant averred that he did not intend to hurt anyone in the truck. He noted that
he only shot once at a person who was threatening him. Defendant speculated that the
victim may have taken offense to Defendant’s response to Ms. Patel. He noted that the
victim repeated eight to ten times that he had a gun. Defendant stated that he shot at the
victim because he did not know if the victim “was coming back up with a strap[.]”
Defendant testified that, when the victim initially pulled up near his car, one or two
cars may have been blocking the victim from leaving. He said that, during the argument,
traffic had cleared such that the victim could have “moved on.” Defendant reiterated that,
if the victim had moved “back two inches,” the victim could have taken his parking spot.
Defendant testified that, after he fired his gun, he did not know whether Mr.
Vazquez would “retaliate,” given that the victim had referred to multiple guns. Defendant
noted that he did not know if he hit the victim or whether the victim had grabbed a gun
inside the truck.
Defendant identified two photographs of two sedans in front of Arabian Palace,
which were received as an exhibit. Defendant agreed that the photographs recreated the
positioning of his and the victim’s vehicles at the time of the shooting. The photographs
reflected that the first sedan was parked parallel to a curb, and another sedan was partially
- 16 -
behind the first sedan at roughly a forty-five-degree angle and facing the same direction;
the first sedan’s back bumper was almost touching the second sedan’s back passenger-side
door. Defendant noted that the victim’s truck bed more completely blocked his car than
was shown in the photographs. He added that he was parked two or three inches closer to
the curb than the sedan in the photographs. Defendant estimated that the victim’s truck
was between one and two feet from his back bumper. He repeated that if he could have
backed up and driven away, he would have.
Defendant testified that, after he left the scene, he drove home; he explained that
with “the magnitude of the situation” he was afraid and uncertain if the victim and Mr.
Vazquez were going to shoot into his car. He noted that he did not pick up the woman who
was expecting him and that his cell phone would reflect her asking where he was via text
messages.
Defendant testified that, around 3:30 a.m., he spoke by telephone with Kelsey, a
bartender at Arabian Palace; she reported that someone had been shot, and Defendant
learned at 4:00 a.m. that the victim had died. Defendant said that he searched for news
regarding the incident and a criminal defense attorney after learning of the victim’s death.
Defendant said that he was afraid and that he performed the searches in advance of
contacting his parents and turning himself in to police. He denied that he left the area, and
he noted that he lived ten minutes away from Arabian Palace.
Defendant testified that he was “down” in the days following the shooting because
he had never shot anyone before. When asked why he did not turn himself in immediately,
Defendant responded that he was afraid for his safety. Defendant agreed that he was
arrested near his home five or six days later. Defendant acknowledged Jhamar Hinds’ text
message urging him to “go out West,” and he noted that he did not flee the state. He stated
that Mr. Hinds had gone to Arabian Palace and knew about the incident.
Defendant testified that Detective Klarer interviewed him after his arrest.
Defendant admitted that he lied to Detective Klarer during the interview because he was
afraid to go to jail and did not “want any retaliation against [him.]”
On cross-examination, Defendant testified that, at the time of the shooting, he was
six feet, one inch tall, and weighed between 180-190 pounds. When asked whether he was
“very familiar” with guns, he responded that he bought guns, although he did not have a
carry permit. Defendant stated that he had fired guns “several times” at a shooting range
in Murfreesboro, where he had a membership. He said that, at the time of the incident in
this case, he owned the .9mm Ruger pistol he carried and an AK-47 he kept at home.
Defendant “guessed” but did not know if the Ruger was semi-automatic, and he noted that
he was “one of those type of people that . . . might buy a gun because it looks the way it
looks.”
- 17 -
Defendant testified that, before the incident, he had shot the Ruger twice at the
shooting range. Defendant initially claimed not to know if the Ruger had a safety
mechanism but later affirmed that it did. He agreed that, in order to fire the gun, he had to
load the magazine with individual bullets, install the magazine into the gun, disengage the
safety mechanism, manipulate the slide to chamber a bullet, and squeeze the trigger.
Defendant stated that, on the night of the incident, his gun was already loaded; he believed
that he loaded it the last time he went to the shooting range. He said that a bullet was
already chambered, but he could not “say it . . . definitely wasn’t on safety.” Defendant
then said that the gun was not on safety because he kept it for protection and never left his
car without it. He noted the delay in retrieving the gun from the locked center console in
an emergency if it were on safety and unloaded.
Defendant acknowledged that he entered his car, opened the locked console with a
key, and placed the gun in his waistband. When asked whether those were choices he made
that evening, Defendant responded that it was “just a routine.” Defendant affirmed that he
knew that by pulling the trigger, he would fire a bullet that would create “a hole” in any
person or object it hit. He agreed that being struck by a bullet could possibly kill a person.
Defendant added, though, that he “didn’t make a choice” to fire the gun during the incident,
explaining that he feared for his life and “thought somebody else was picking up a gun
which they said that they had over [eight] to [ten] times and was . . . fixing to aim one back
at [him].”
Defendant testified that, before his police interview, Detective Klarer informed him
of his rights. Defendant acknowledged that he was college-educated and chose to waive
his rights by speaking to the police. Defendant also stated, though, that he asked “at least
ten times” to speak to his attorney, that the police presented his rights for “a brief split
second,” and that the police made Defendant feel as though he had to talk to them.4 He
noted that he was not thinking rationally. Defendant acknowledged that Detective Klarer
did not threaten to send him to jail if he did not give a statement. Defendant stated that he
chose to talk to Detective Klarer “for a brief minute, minute and a half” before asking for
an attorney.
4
During a jury-out hearing, the trial court asked the parties to address Defendant’s statements about
being denied an attorney during his police interview. Defense counsel stated that he had not filed a pretrial
motion to suppress because “[the defense team] made a strategic decision early on that [Defendant] would
have to testify in this case.” He explained that no other witnesses came forward apart from Mr. Sanders
and that “since [Defendant] was going to have to testify then the statements he said could be used against
him.” Upon questioning from the trial court, defense counsel continued, “Even if you had suppressed the
statement, Judge, if he testifies, they can use it against him.” The State noted that it did not intend to
introduce a recording of the statement because Defendant referred to unspecified issues in Rutherford
County.
- 18 -
Defendant agreed that he had reviewed his recorded police interview. He
acknowledged telling Detective Klarer that he left before the shooting, and he explained
that he lied because he was “in fear for [his] life for retaliation.” Defendant testified that
“[thirty] people . . . pulled up at the hookah bar the next night looking for [him].”
Defendant testified that, in his interview, he told Detective Klarer that “Mina,” the owner
of Arabian Palace, and Kelsey could verify Defendant left before the shooting. Defendant
acknowledged that he asked Detective Klarer what happened in the parking lot at Arabian
Palace and talked about the incident as though he had not been present, including stating
that he left before the shooting occurred and acting like he did not know to which truck
Detective Klarer referred. Defendant admitted that he told Detective Klarer that he had
nothing to do with the shooting; that there was “nothing to talk about” because he was not
present; that he was being honest with Detective Klarer; that Mina and Kelsey would
corroborate that Defendant left and “did not do anything violent”; that his cell phone
records would reflect a call or message from a woman stating that she was glad Defendant
left before the shooting; and that he was being falsely accused and would not confess to a
crime for which he was innocent. Defendant agreed that he asked Detective Klarer why
he would have argued about a parking spot; urged the police to review surveillance footage
that would exonerate him; stated that he learned about the shooting on the news; said that
no one shot “out of [his] car”; repeatedly denied shooting the victim or harming anyone;
and indicated his disbelief that anyone identified him as the shooter. Defendant admitted
that these statements were lies, explaining that he “felt pressured” after he was not
permitted to speak to an attorney. He added that Detective Klarer took a water bottle away
from him and said that, if Defendant would not talk to the police, he could not have
anything to drink. Defendant did not recall whether Detective Klarer yelled at him,
although he agreed that no police officers or members of the Hispanic community were in
the room “menacing” or threatening him. Defendant denied knowing that Arabian Palace’s
surveillance cameras did not record. He acknowledged being on a first-name basis with
Mina and having a romantic relationship with Kelsey. Defendant agreed that, during the
eighteen-minute interview, he chose to lie thirty times.
When asked when he planned to turn over his gun to the police, Defendant
responded that, when he was arrested, his car window “was messed up” and that the gun
was stolen. Defendant denied that the gun “just happen[ed] to disappear” and averred that
his car had been broken into three times. When asked whether the gun went missing before
or after the text message from Mr. Hines urging Defendant to get rid of something at the
house, Defendant replied that he did not listen to Mr. Hines and that, instead of responding
to the message, he performed an internet search for a defense attorney.
Relative to the surveillance recording from the barber shop, Defendant agreed that
he could clearly hear the gunshot and a motorcycle engine. He did not recall hearing
women’s laughter in the recording. Defendant acknowledged that Arabian Palace was the
only business open in the strip mall at the time of the shooting and that people walking in
- 19 -
the parking lot would have been going to Arabian Palace. He stated that “it wasn’t [a] busy
night” but that cars were in the vicinity and that there “was a lot of commotion going on[.]”
When asked whether the victim’s “screaming and shouting” should also have been audible
on the recording, Defendant denied having testified that the victim shouted. Defendant
later agreed, though, that he had testified that the victim was “standing outside of his car
and he was using the N word and . . . he was screaming at [him.]” Defendant clarified that
the victim “had an attitude” and was aggressive but was not shouting at “the top of his
voice.”
Defendant testified that, even though he shot at the victim, he did not intend to hurt
him. Defendant admitted that he could have chosen not to fire the gun, fire a shot into the
air, or fire toward another person. He stated that he fired at the person he thought would
harm him. Defendant disagreed, though, that he aimed at the victim. He said that the
victim stood on the running board “constantly yelling” that they had guns and reached
down. Defendant stated, “I didn’t look, I just shot, pow, one time . . . because like I said I
didn’t try to harm him.” Defendant maintained that he did not want to shoot the victim but
admitted that the victim was his “target.”
Defendant testified that the Arabian Palace security staff knew him and that the bar
took security seriously. When asked why he did not call to them for help, Defendant stated
that he yelled to a nearby woman, “I think he’s fixing to pull a gun on me.” Defendant said
that he had subpoenaed the woman as a defense witness but that she had not come to court.
Defendant agreed that Mr. Zymeri and Ms. Beasley had nothing to gain from their
testimony that they heard no “ruckus” in the parking lot before the shooting. He said,
though, that they would not have been aware of the argument because ten to fifteen people
were waiting in line to enter Arabian Palace and needed to be searched. Defendant stated
that the crowd was at its “peak,” that the bar would not have closed until 2:30 or 3:00 a.m.,
and that the security staff would have had their backs to the parking lot. Defendant stated
that Mr. Zymeri testified untruthfully that the bar was closing when the shooting occurred.
When asked whether he could have chosen to stay and aid the victim, Defendant
answered negatively and reiterated his fear that the victim and Mr. Vazquez had a gun.
Defendant denied that the other witnesses were lying about the sequence of events; he said,
though, that Ms. Patel and Mr. Vazquez were lying about the victim’s not fully exiting the
truck.
The State recalled Detective Klarer as a rebuttal witness. Detective Klarer testified
that, at Defendant’s police interview, he and another detective were present in the room.
Defendant was not in handcuffs,5 and all three men were seated. Detective Klarer denied
5
On cross-examination, Detective Klarer clarified that Defendant had been arrested but was not
restrained.
- 20 -
threatening Defendant and stated that he read Defendant his rights. Defendant indicated
that he understood his rights. Detective Klarer said that he performed most of the
questioning, and he denied telling Defendant that he would be arrested if he declined to
talk to the police. He stated that, when he asked Defendant a question “about video,”
Defendant said, “[W]ell, my lawyer would have to look at that[.]” Defendant also
mentioned his lawyer’s needing to see certain evidence or said that he should call his
lawyer. However, Defendant continued speaking without interruption. Detective Klarer
averred that Defendant did not ask to speak to his lawyer until the very end of the interview,
at which time the detectives ceased questioning him. Detective Klarer acknowledged that,
after the end of the interview, he became frustrated and took a bottle of water from
Defendant.
Detective Klarer testified that he interviewed Ms. Patel within two hours of the
shooting. He noted his surprise that Ms. Patel was described during the defense’s proof as
having yelled at Defendant and “using filthy language[.]” According to Detective Klarer,
Ms. Patel was the politest person he had ever encountered after having experienced a
similar incident. He stated that he asked her for the exact language she used during the
incident and that he cursed as an example. Ms. Patel denied having used rude language
and explained that she did not “speak like that.” Detective Klarer opined that Ms. Patel
did not appear to have used any drugs or alcohol.
Detective Klarer testified that he interviewed Mr. Vazquez after Ms. Patel and that
Mr. Vazquez did not appear to be intoxicated. Detective Klarer acknowledged that Mr.
Vazquez reported alcohol and marijuana use but opined that “it wasn’t to the point where
it clouded his judgment.” He agreed that Mr. Vazquez spoke clearly and intelligently. On
cross-examination, Detective Klarer acknowledged that he did not order Ms. Patel or Mr.
Vazquez to submit to drug or alcohol testing after the incident.
Ms. Patel testified in rebuttal that the victim never stepped off the truck’s running
board or walked to the front of it. She noted that, if the victim had done so, he would not
have rolled down her window to speak to Defendant. Ms. Patel said, “I don’t even recall
us being so close to where [Defendant] could have potentially even hit us at all.” Ms. Patel
also disputed that she spoke angrily to Defendant or used profanity. She averred that she
was “not that type of person” and would never speak in that manner. Ms. Patel added that
the victim was “pretty protective of [her]” and that she never had to speak to Defendant.
Ms. Patel stated that, as soon as Defendant flashed his gun, the victim rolled up Ms. Patel’s
window because he did not want her to be in the middle “of all that[.]” Ms. Patel denied
that she and the victim argued in the truck, and she noted that there was no time to speak
to one another. She disputed Defendant’s testimony that the argument occurred over a
longer period of time; she estimated that the encounter lasted three to four minutes. Ms.
Patel also denied that they threatened Defendant, that the truck contained any weapons, or
that she ever heard the victim refer to a gun as a “strap.”
- 21 -
Ms. Patel testified that Defendant was not wearing his gun when he initially exited
the car; she explained that, if Defendant had been wearing it, he would not have had reason
to go back to the car and retrieve anything. Ms. Patel stated that Defendant did not sit
down in the car and that she could tell he was “doing something” before he stood up outside
the car and “immediately flashed his gun” and asked if they had a problem. Ms. Patel
testified that, when she saw Defendant’s gun, she was terrified because she had never seen
one before. She denied that the victim told Defendant that they also had a gun.
On cross-examination, Ms. Patel acknowledged that she remained in the courtroom
after her testimony and heard Mr. Vazquez’s testimony that she argued with Defendant.
Ms. Patel stated that she told Defendant that the space was not a parking spot but denied
that she spoke angrily or yelled at Defendant. Ms. Patel had remained in the courtroom
after her testimony; she acknowledged that Mr. Vazquez asked the victim to get back into
the truck and “leave it alone.” When asked whether the victim was “doing something to
engage [Defendant],” Ms. Patel responded, “Other than communication, nothing else.”
Ms. Patel disagreed that their telling the victim to leave meant that the way was clear for
the victim to drive away. Ms. Patel stated that she generally agreed with Mr. Vazquez’s
testimony.
Upon this evidence, the jury convicted Defendant in Count 1 of the lesser-included
offense of second degree murder and in Counts 2 and 3 of aggravated assault.
At Defendant’s sentencing hearing, Lavergne Police Department Sergeant Russell
Howell testified that he assisted MNPD officers in executing Defendant’s arrest warrant
on May 17, 2018. He stated that the officers went to Defendant’s residence, forced open
the door, and discovered that Defendant was not home. A subsequent search of the home
yielded “just under one pound” of marijuana, a small amount of cocaine, and a loaded AK-
47 handgun.
An indictment related to the items recovered at Defendant’s home was entered as
an exhibit and reflected that, in Rutherford County Criminal Court case number 81161,
Defendant was charged with possession of marijuana with the intent to sell or deliver,
possession of a firearm during the commission or attempt to commit a dangerous felony,
keeping or maintaining a dwelling where a controlled substance was used, kept or sold,
and simple possession of cocaine. See Tenn. Code Ann. §§ 39-17-417, -418, -432(b)(1),
-17-1324(a), 53-11-401. The charges were still pending at the time of the sentencing
hearing.
The presentence report was also exhibited to the hearing and reflected that
Defendant was thirty-four years old. Defendant described the shooting incident to the
presentence report officer as “the most horrible experience of [his] life”; he stated that,
although he was sorry for “putting [the victim’s family] through this,” he “honestly felt
- 22 -
that [he] had no choice in acting the way [he] did.” Defendant had previous misdemeanor
convictions for public intoxication, unlawful use of drug paraphernalia, two counts of
criminal trespass, vandalism, four counts of simple possession of marijuana, theft, and two
counts of unlawful possession of a weapon.
The report indicated that Defendant graduated from Middle Tennessee State
University with a bachelor’s degree in engineering technology. He reported occasional
alcohol and marijuana use beginning when he was twenty or twenty-one years old; he
stated that he had last used marijuana more than two years previously. Defendant had two
sons and one daughter, and he reported having good family relationships. Defendant’s
Strong-R assessment rated him a moderate risk to reoffend.
Additional exhibits to the hearing reflected that in 2011, Defendant violated his
probation in two Rutherford County cases by failing to report and accumulating new
criminal charges. Defendant’s probation was revoked and his sentence reinstated.
Ms. Patel testified that, at the time of the victim’s death, they had known each other
for ten years and were cohabitating. She read a statement describing the victim and
explaining that he became her family after her parents “disowned” her over their
relationship. Ms. Patel described her continuing pain and trauma from the victim’s death,
including not being able to watch programming involving gunshots, “barely being able to
make a drive,” and being unable to go certain places, for which she was attending therapy.
Ms. Gutierrez, the victim’s mother, testified that the victim was her firstborn and
that he was a smart, happy child who made friends with “people of any race.” She stated
that he dreamed of studying international business, was protective of his siblings, and was
always there for friends and family. Ms. Gutierrez said that, at the time of the victim’s
death, he was starting a swimming pool construction business. Ms. Gutierrez stated that
the victim also worked in her family bakery.
Ms. Gutierrez stated that she and the victim had a very close relationship. Ms.
Gutierrez described the devastating impact of the victim’s death on her family, including
her falling into a “deep depression” and having continuing panic attacks, for which she was
undergoing medical and psychological treatment. Ms. Gutierrez stated that the victim had
a four-year-old son and that it pained her to imagine her grandchild growing up without his
father.
Jessica Reza, the victim’s sister, submitted a written letter to the court describing
the effect of the victim’s death on her and her family. She stated that her brother was
“rare,” generous to others, and did the right thing without hesitation. Ms. Reza urged the
court to impose the maximum sentence in light of Defendant’s prior criminal charges and
opined that he was a “menace to society.”
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Cesar Reza, the victim’s father, testified that the victim provided a good example
for his siblings, was loved by his family, and made many friends. Mr. Reza said that he
did not think he would ever get past the victim’s death. He expressed his disbelief that the
incident was a mistake, noting that Defendant had “been convicted before for other things.”
Defendant presented several character witnesses on his behalf. Barbara Dixon,
Defendant’s mother, testified that Defendant was a good person who had been “trying to
make a change and get back on track” for five or six years. She apologized to the victim’s
family for Defendant’s “mistake” and stated that two families had been “destroyed” by the
situation. Ms. Dixon noted that she lived in Memphis but that she stayed in contact with
Defendant via weekly telephone calls. She said that Defendant had a good reputation in
Rutherford County and had started working as a little league football coach. Ms. Dixon
stated that Defendant never allowed others to tease people in front of him and that he had
previously given all of his shoes and clothing to a family member in need. She said that
she raised Defendant in the church and that she discussed prayer with him. Ms. Dixon
noted that, after the victim’s death, Defendant called her upset because he discovered that
he and the victim shared a birthday.
Ms. Dixon testified that Defendant had two children, one of whom was fourteen or
fifteen months old. She stated that he was an excellent father and that his older child adored
him. Ms. Dixon emphasized that she needed Defendant to help care for her during her
treatment for brain cancer, noting that her daughter was exhausted from caretaking and that
Defendant promised to help her. Ms. Dixon asked the trial court to impose the minimum
sentence.
Rochelle6 Dixon, Defendant’s older sister, testified that she communicated with
Defendant two or three times per week after he moved to Middle Tennessee. She described
Defendant as a loving, kind, and caring person who had “really gotten his life together” in
the past five or six years. Rochelle noted Defendant’s longstanding interest in working
with children and his job with the little league team. She said that Defendant was not a
violent person and that the incident in this case, which she characterized as a “tragic
accident,” was out of character. Rochelle stated that Defendant was a caring and strict
father who insisted that his son earn good grades in school and be obedient.
Tamika Conner testified that her older son played for Defendant’s little league team.
She noted that Defendant helped her son overcome shyness and build self-esteem. Ms.
Conner stated that “everyone ha[d] some type of past” but that, in the past two years,
Defendant had been an asset to the community and the children on the team. Ms. Conner
6
Because Barbara Dixon and Rochelle Dixon share a surname, we will refer to Rochelle by her
first name for clarity. We intend no disrespect.
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also wrote a character reference letter, which was entered as an exhibit. The letter added
that Ms. Conner trusted Defendant with her children and believed that he acted out of self-
defense.
James Cunningham testified that he was head coach of the little league football team
and that Defendant worked for him as an assistant coach. Mr. Cunningham stated that
Defendant was a “natural” with the children and that they gravitated to him; he noted that
Defendant also had a better relationship with the parents than he did. Mr. Cunningham
described Defendant as a good father and member of the community who loved his
children. Mr. Cunningham also wrote a character reference letter, which was entered as an
exhibit. The letter added that Defendant’s children meant everything to him and that
watching his children grow up from confinement “would be totally unfair.”
Krystal Smotherman testified that Defendant was her seven-year-old son’s father.
Ms. Smotherman described Defendant as an “amazing” father, noting that he contacted
their son multiple times a week, coached their son’s little league team, and instructed their
son daily to respect Ms. Smotherman, Ms. Smotherman’s husband, and his siblings. Ms.
Smotherman stated that everyone made mistakes and that two families had been destroyed
due to the situation, “especially” her son. She asked the court to impose a minimum
sentence because her son needed his father. Ms. Smotherman also wrote a character
reference letter, which was received as an exhibit. The letter added that after their son’s
birth, Defendant “turned his life around” to provide for his family. Ms. Smotherman stated
that Defendant obtained an apartment and a job. Ms. Smotherman opined that Defendant
acted in fear for his life and that “the people involved made a decision when they
antagonized and threatened” Defendant. She also opined that children without both parents
grew up to make similar decisions as the victim and urged the court to consider Defendant’s
children.
Defense counsel read aloud a statement Defendant composed. Defendant
apologized to Ms. Patel and the victim’s family, and he stated that he thought about the
incident constantly and prayed for the victim’s family. He said, “No matter what situation
I was put in or . . . how anybody feels, that will always be a tragic day in my life as well as
[the victim’s.]”
Additional character reference letters were submitted from friends of Defendant’s
family, community members acquainted with Defendant through the little league football
team, and an employee of the company monitoring Defendant’s GPS tracker.
The trial court took the matter under advisement and subsequently entered a written
sentencing order. The trial court imposed the maximum twenty-five-year sentence in
Count 1 and respective five-year sentences in Counts 2 and 3. The court ordered Counts 2
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and 3 to be served concurrently with one another and consecutively to Count 1, for an
effective thirty-year sentence.
Defendant subsequently filed a motion for new trial or judgment of acquittal,
arguing that the evidence was insufficient to support his conviction in Count 1, second
degree murder, and that his conviction should be overturned or modified to involuntary
manslaughter. Defendant also requested that the trial court order a new trial acting as
thirteenth juror, arguing again that the evidence of second degree murder was insufficient,
that Mr. Sanders testified for the defense regarding the argument preceding the shooting,
and that Defendant felt “threatened physically” at the time of his police interview. Finally,
Defendant argued that the State violated his Second Amendment right to keep and bear
arms during its cross-examination. The trial court denied the motion by written order, and
Defendant timely appealed.
Analysis
I. Sufficiency of the Evidence
Defendant contends that the evidence is insufficient to support his conviction for
second degree murder,7 arguing that “the undisputed evidence” at trial established that the
victim “chose” to block Defendant’s car and “prevent[ed] . . . Defendant from any type of
escape or retreat”; that both parties argued, became upset, and “threatened violence”; that
the victim “did nothing to de-escalate the situation and was the aggressor”; and that
“Defendant was left with no choice but to defend himself.” Defendant requests that this
court vacate his conviction in favor of a conviction for voluntary manslaughter “at most.”
The State responds that the evidence is sufficient.
Our standard of review for a sufficiency of the evidence challenge is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009))
(internal quotation marks omitted).
7
Defendant does not contest that the evidence was sufficient relative to his two aggravated assault
convictions.
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A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 S.W.3d
514, 521 (Tenn. 2007).
Second degree murder is “[a] knowing killing of another[.]” Tenn. Code Ann. § 39-
13-210(a)(1) (2018). Second degree murder is a “result of conduct” offense. See State v.
Brown, 311 S.W.3d 422, 431-32 (Tenn. 2010); State v. Ducker, 27 S.W.3d 889, 896 (Tenn.
2000). Accordingly, the appropriate statutory definition of “knowing” in the context of
second degree murder is as follows: “A person acts knowingly with respect to the result
of the person’s conduct when the person is aware that the conduct is reasonably certain to
cause the result.” Tenn. Code Ann. § 39-11-302(b) (2018). In other words, “the State is
not required to prove that Defendant wished to cause his victim’s death but only that
Defendant knew that his or her actions were reasonably certain to cause the victim’s death.”
Brown, 311 S.W.3d at 432.
As instructed by the trial court, a person who is not engaged in unlawful activity
and is in a place where the person has a right to be has no duty to retreat before threatening
or using force intended or likely to cause death or serious bodily injury if:
(A) The person has a reasonable belief that there is an imminent danger of
death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious bodily injury
is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
Tenn. Code Ann. § 39-11-611(b)(2) (2018). The State has the burden of proving beyond
a reasonable doubt that the defendant did not act in self-defense. Tenn. Code Ann. § 39-
11-201(a)(3); State v. Sims, 45 S.W.3d 1, 10 (Tenn. 2001). Whether the defendant acted
in self-defense is a matter for the determination of the jury as the trier of fact. State v.
Dooley, 29 S.W.3d 542, 547 (Tenn. Crim. App. 2000); State v. Goode, 956 S.W.2d 521,
527 (Tenn. Crim. App. 1997).
Viewing the evidence in the light most favorable to the State, the evidence was
sufficient for a rational juror to reject Defendant’s self-defense argument and find that
Defendant acted knowingly when he shot and killed the victim. Defendant does not dispute
that he shot and killed the victim after a parking lot misunderstanding escalated to an
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argument. Ms. Patel and Mr. Vazquez testified that neither they nor the victim spoke
aggressively to Defendant, cursed at him, or threatened him. The victim told Defendant
that he did not want his parking spot. Mr. Zymeri and Ms. Beasley, who were standing a
relatively short distance away, did not hear the argument. Ms. Patel testified that, after
returning briefly to his car, Defendant showed the handle of his gun and asked if they had
a problem. Ms. Patel and Mr. Vazquez testified that, after seeing the gun, the victim stood
on the running board of the truck to speak to Defendant. After Ms. Patel and Mr. Vazquez
urged him to leave and pulled at his clothing, the victim leaned back inside the truck, and
Defendant shot him. No weapons were located in or around the victim’s truck. Defendant
testified that he “didn’t even wait to see if [the victim] had a gun” before shooting him.
Defendant also testified that he aware that shooting a person could kill him.
All of Defendant’s sufficiency arguments relate to the weight of the evidence and
witness credibility. It is not the purview of this court to reweigh evidence or substitute our
judgment for that of the factfinder. See Bland, 958 S.W.2d at 659. Defendant is not entitled
to relief on this basis.
II. Second Amendment
Defendant contends that the State violated his rights pursuant to the Second
Amendment to the United States Constitution when it “questioned . . . Defendant regarding
all aspects of his possession of [his gun] prior to the shooting,” arguing that the prosecutor
“was, in effect, arguing to the jury that they should take a negative inference from his
possession of said weapon.” Defendant states that “[s]uch an argument is no different than
a prosecutor who questions a [d]efendant’s choice not to testify at trial or to remain silent
during interrogation.” Defendant acknowledges that he made no contemporaneous
objection to the line of questioning and requests plain error relief. The State responds that
Defendant has not established that a clear and unequivocal rule of law was violated.
Rule 36(a) of the Tennessee Rules of Appellate Procedure states that “[n]othing in
this rule shall be construed as requiring relief be granted to a party responsible for an error
or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.” “The failure to make a contemporaneous objection constitutes
waiver of the issue on appeal.” State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App.
2008). However, “when necessary to do substantial justice,” this court may “consider an
error that has affected the substantial rights of a party” even if the issue was waived. Tenn.
R. App. P. 36(b). Such issues are reviewed under plain error analysis. State v. Hatcher,
310 S.W.3d 788, 808 (Tenn. 2010).
Plain error relief is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626, 642
- 28 -
(Tenn. Crim. App. 1994). In order to be granted relief under plain error relief, five criteria
must be met: (1) the record must clearly establish what occurred in the trial court; (2) a
clear and unequivocal rule of law must have been breached; (3) a substantial right of the
accused must have been adversely affected; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.”
Adkisson, 899 S.W.2d at 640-41; see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.
2000) (Tennessee Supreme Court formally adopting the Adkisson standard for plain error
relief). When it is clear from the record that at least one of the factors cannot be established,
this court need not consider the remaining factors. Smith, 24 S.W.3d at 283. Defendant
bears the burden of persuasion to show that he is entitled to plain error relief. State v.
Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).
In this case, Defendant acknowledges that no Tennessee law supports his contention
that the State may not cross-examine a criminal defendant on trial for a homicide involving
a gun about his background with guns and knowledge about the consequences of shooting
at a person. Indeed, defense counsel candidly admits in Defendant’s appellate brief that he
was “unable to discover any cases that raise this issue during the guilt phase of a trial.”
(Emphasis added). The sole case upon which Defendant relies is the dissenting opinion in
a Wisconsin Supreme Court case examining whether a trial judge improperly relied upon
the defendant’s having purchased a gun and obtaining a concealed carry permit as a factor
in sentencing. See State v. Dodson, 969 N.W.2d 227, 232 (Wis. 2022) (Bradley, J.,
dissenting). Simply put, Defendant has failed to carry the burden of establishing that a
“clear and unequivocal rule of law” was violated in his case. Accordingly, Defendant is
not entitled to plain error relief.
III. Sentencing
Defendant contends that his twenty-five-year sentence for Count 1, second degree
murder, is excessive, arguing that the trial court erred by applying enhancement factor (1),
that Defendant had a history of criminal convictions or behavior beyond that necessary to
establish his sentencing range, and factor (6), that the injuries to the victim in Count 1 were
especially great. Defendant also argues that the court erred by declining to apply several
mitigating factors. Defendant requests that this court reduce his sentence in Count 1 to a
minimum in-range sentence of fifteen years. The State responds that the trial court acted
within its discretion in imposing the maximum in-range sentence.
In sentencing Defendant, the trial court stated that it had considered the evidence
offered at the trial and sentencing hearing, the testimony and letters offered by Defendant
on his behalf, the principles of sentencing, and the presentence report. Relative to
mitigating factors, the court found that none applied, noting that it relied upon the jury’s
determination that Defendant was guilty of second degree murder and aggravated assault.
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Relative to enhancement factors, the trial court applied factor (1), that Defendant
had a history of criminal convictions or behavior in addition to those necessary to establish
the appropriate range, to all counts. See Tenn. Code Ann. § 40-35-114(1). The court noted
Defendant’s prior misdemeanor convictions for simple possession, unlawful use of drug
paraphernalia, vandalism, unlawful possession of a weapon, trespass, and public
intoxication, as well as the “credible evidence” of Defendant’s pending Rutherford County
charges related to the marijuana, cocaine, and AK-47 handgun recovered at Defendant’s
residence. The court applied enhancement factor (6), that the personal injuries inflicted
upon the victim were particularly great, relative to Count 1; enhancement factor (8), that
Defendant had previously failed to comply with the conditions of a sentence involving
release into the community, relative to all counts; and enhancement factor (10), that
Defendant had no hesitation about committing a crime when the risk to human life was
high, relative to Counts 2 and 3 because Defendant shot the victim “in a manner that
increased the risk of death” to Ms. Patel and Mr. Vazquez. See id. § 40-35-114(6), (8),
(10). Based on these considerations, the trial court ordered a sentence of twenty-five years
in Count 1 and five years each in Counts 2 and 3.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the sentence
that should be imposed, because the general assembly set the minimum
length of sentence for each felony class to reflect the relative seriousness of
each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as appropriate,
by the presence or absence of mitigating and enhancement factors set out in
§§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c) (2020).
To facilitate meaningful appellate review, the trial court must state on the record the
factors it considered and the reasons for imposing the sentence chosen. Tenn. Code Ann.
§ 40-35-210(e) (2020); State v. Bise, 380 S.W.3d at 682, 706 (Tenn. 2012). Although the
trial court should consider enhancement and mitigating factors, such factors are advisory
only. See Tenn. Code Ann. § 40-35-114 (2020); see also Bise, 380 S.W.3d at 698 n. 33,
704; State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). We note that “a trial court’s
weighing of various mitigating and enhancement factors [is] left to the trial court’s sound
discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select
any sentence within the applicable range so long as the length of the sentence is ‘consistent
with the purposes and principles of [the Sentencing Act].’” Id. at 343. A trial court’s
“misapplication of an enhancement or mitigating factor does not invalidate the sentence
- 30 -
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Bise, 380 S.W.3d at 706. “[Appellate courts are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Carter,
254 S.W.3d at 346.
When the record clearly establishes that the trial court imposed a sentence within
the appropriate range after a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. Bise, 380 S.W.3d at 707. The
party challenging the sentence on appeal bears the burden of establishing that the sentence
was improper. Tenn. Code Ann. § 40-35-401 (2020), Sentencing Comm’n Cmts.
In this case, the trial court selected a within-range sentence, detailed its findings on
the record, and its decision is presumptively reasonable. Bise, 380 S.W.3d at 707. The
trial court determined that Defendant was a Range I standard offender. Second degree
murder is a Class A felony and has a sentencing range of fifteen to twenty-five years. Tenn.
Code Ann. §§ 39-13-210(a)(1), (c)(1) (2018); 40-35-112(a)(1) (2021).
Relative to mitigating factors, Defendant contends that the trial court used an
incorrect standard when declining to apply factor (2), that Defendant acted under strong
provocation, based upon the jury’s verdict. However, even if the court’s reasoning was
faulty, mitigating and enhancement factors are advisory only, and the court was not
obligated to reduce Defendant’s sentence even if it were applied. See Tenn. Code Ann. §
40-35-114 (2020); see also Bise, 380 S.W.3d at 698 n. 33, 704; Carter, 254 S.W.3d at 346.
Defendant also states that the trial court “never considered the great support”
provided by Defendant’s character references. We note that the court explicitly stated at
the beginning of the sentencing order that it had considered the testimony and letters
presented on Defendant’s behalf. The record does not support Defendant’s assertion in
this regard.
Relative to enhancement factors, Defendant argues without elaboration that the trial
court improperly considered Defendant’s pending Rutherford County criminal charges
when applying enhancement factor (1) regarding Defendant’s history of convictions and
criminal behavior. Although a trial court may not enhance a defendant’s sentence based
upon the mere fact of an arrest or pending charges, a court may consider this type of
information with other evidence to find that the defendant has a history of criminal
behavior. See State v. Robinson, 971 S.W.2d 30, 48 (Tenn. Crim. App. 1997) (discussing
that, although “a mere arrest record is insufficient to establish criminal conduct, the same
is not true for an indictment” and noting that the court properly considered officer
testimony about unadjudicated drug sales he witnessed); cf. State v. Buckmeir, 902 S.W.2d
- 31 -
418, 424 (Tenn. Crim. App. 1995) (citing State v. Miller, 674 S.W.2d 279, 284 (Tenn.
1984)) (concluding that a trial court’s consideration of criminal charges was improper for
purposes of enhancement factor (1) when no evidence in the record indicated that they were
“anything more than charges”). In this case, the court properly considered the indictment,
arrest warrants, and Sergeant Howell’s testimony about the items he saw recovered at
Defendant’s home.
In addition, Defendant states that his criminal history “is limited to minor
misdemeanors.” To the extent that Defendant implicitly argues that the trial court should
not have applied enhancement factor (1) in the absence of prior felony convictions, we note
that a trial court may properly enhance a sentence based upon prior misdemeanor
convictions. See, e.g., State v. Dorantes, 331 S.W.3d 370, 391 (Tenn. 2011) (affirming a
sentence enhanced two years above the minimum when defendant had three prior
misdemeanor convictions); State v. Madden, 99 S.W.3d 127, 140 (Tenn. Crim. App. 2002)
(discussing that enhancement factor (1) had been applied when a co-defendant had
“numerous misdemeanor convictions” which occurred seven or eight years before
sentencing). In this case, the court properly considered Defendant’s twelve prior
misdemeanor convictions when applying enhancement factor (1).
Lastly, Defendant argues that the trial court misapplied factor (6), that the injuries
inflicted on the victim were great, because great injury to the victim is an element of second
degree murder. We agree that factor (6) should not have been applied. See, e.g., State v.
Gary Wayne Ford, No. E2019-00684-CCA-R3-CD, 2020 WL 4193711, at *8 (Tenn. Crim.
App. July 21, 2020) (“Enhancement factor number six is inapplicable when the death of
the victim is an element of the offense”) (internal citations omitted).
However, as previously noted, such an error standing alone is no longer a proper
basis for this court to reverse a within-range sentence, provided that the court articulated
other reasons consistent with the purposes and principals of sentencing. Bise, 380 S.W.3d
at 706. Here, the trial court properly considered Defendant’s history of criminal
convictions and behavior and his previous failure to comply with the conditions of release
into the community,8 and these two enhancement factors amply support a maximum in-
range sentence. The court did not abuse its discretion, and Defendant is not entitled to
relief on this basis.
8
We note that Defendant does not dispute the trial court’s finding that he previously violated his
probation.
- 32 -
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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