State of Tennessee v. Tremaine Wilbourn ( 2020 )

04/15/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 4, 2020
STATE OF TENNESSEE v. TREMAINE WILBOURN
Appeal from the Criminal Court for Shelby County
No. 16-00515 Lee V. Coffee, Judge
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No. W2019-00305-CCA-R3-CD
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The Defendant, Tremaine Wilbourn, appeals his convictions for first degree premeditated
murder, carjacking, employing a firearm during the commission of a dangerous felony,
and possession of a firearm while having a prior felony conviction involving the use or
attempted use of violence, for which he received an effective sentence of life in prison
without the possibility of parole plus thirty-eight years. On appeal, the Defendant
contends that (1) the evidence is insufficient to support his conviction for first degree
premeditated murder; (2) the trial court erred in prohibiting defense counsel from
referencing a prior shooting during opening statements; (3) the trial court erred in
excluding evidence of the Defendant’s reason for turning himself in to the United States
Marshals Service; and (4) the prosecutor improperly utilized a gun as a demonstrative aid
and made improper comments during closing arguments. Upon reviewing the appellate
record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ALAN E.
GLENN and CAMILLE R. MCMULLEN, JJ., joined.
James Shae Atkinson (on appeal), and Juni Ganguli and Lauren Pasley (at trial),
Memphis, Tennessee, for the appellant, Tremaine Wilbourn.
Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Reginald Henderson,
Alanda Dwyer, and Leslie Byrd, Assistant District Attorneys General, for the appellee,
State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
The evidence presented at trial established that during the evening hours of August
1, 2015, the Defendant shot Officer Sean Bolton of the Memphis Police Department
(“MPD”) eight times in the street of a residential neighborhood after Officer Bolton
approached an illegally parked car in which the Defendant and another occupant were
weighing drugs in preparation for a drug transaction. Officer Bolton died as a result of
multiple gunshot wounds. The Defendant fled the scene on foot, encountered Mr. Desric
Ivory, and took Mr. Ivory’s car at gunpoint. The Defendant was charged with first degree
premeditated murder, carjacking, employing a firearm during the commission of a
dangerous felony, to wit, carjacking, and possession of a firearm while having a prior
felony conviction involving the use or attempted use of violence. Prior to trial, the State
filed a notice of its intention to seek the death penalty or a sentence of life imprisonment
without the possibility of parole.
Guilt Phase
After the jury was sworn and prior to the opening statements, the Defendant
announced that he was pleading not guilty to the first degree murder charge and was
pleading guilty to the remaining charges. At trial, the parties stipulated that prior to
August 1, 2015, the Defendant had been convicted of felonies involving the use or
attempted use of violence. The parties also stipulated that prior to August 1, the
Defendant was made aware of and acknowledged that given his prior convictions, it was
a crime for him to own, possess, or handle a firearm. The State presented the following
evidence at trial.
Mr. David Lanier testified that prior to the shooting, he received a call from
someone who wanted to purchase marijuana. Mr. David Lanier agreed to allow the
Defendant, with whom he had been socializing, to accompany him on the drug
transaction. Mr. David Lanier left the apartment complex in his burgundy Mercedes with
the Defendant in the front passenger seat. He parked the car in the front of the home of
his brother, Mr. Christopher Lanier, in order to weigh the drugs prior to the transaction.
Mr. David Lanier acknowledged that he parked his car “on the wrong side” of the street
facing oncoming traffic.
After a few minutes, Mr. David Lanier saw a “big beam” of light flash into his car.
He grabbed some of his marijuana and ran away, leaving the driver’s side of the car open
and a bag of marijuana on the console. He ran five or six houses down the street and
jumped over a fence. He then heard five to seven gunshots. He called his girlfriend, as
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well as the person to whom he was to sell the drugs. The buyer met Mr. David Lanier
and drove him to the buyer’s apartment where Mr. David Lanier’s girlfriend met him.
Upon learning that a police officer had been shot in the area from which he had fled, Mr.
David Lanier contacted his attorney, met with him the following morning, and then went
to the MPD’s homicide office where he provided a statement. He also identified the
Defendant in a photographic lineup as the person who was in the car with him on the
night of Officer Bolton’s death.
On cross-examination, Mr. David Lanier testified that he was not charged with
selling marijuana in connection with the case, and he acknowledged that the marijuana
later found by officers in his car belonged to him. He stated that he and the Defendant
smoked marijuana during the fifteen-minute drive from the apartment complex to his
brother’s home and that the Defendant did not appear angry or upset.
Mr. Marquis Wright, Mr. Christopher Lanier, Mr. Otagor Jones, Ms. Krystal
Freeman, and Ms. Deborah Crutchfield lived in the neighborhood where the shooting
occurred and testified regarding the shooting. Mr. Wright testified that at around 9:00
p.m. on the night of the shooting, he was standing in the driveway of the house where he
lived with his aunt and his uncle, Mr. Christopher Lanier, while smoking a cigarette. Mr.
David Lanier’s car was parked into front of Mr. Wright’s mailbox, and the car was facing
the “wrong” direction. Mr. Wright saw Mr. David Lanier sitting in the driver’s seat and
another man, whom he later identified as the Defendant, sitting in the passenger’s seat.
Mr. Wright stated that he saw a patrol car pull up and park on the opposite side of the
street with its blue lights activated, but he acknowledged on cross-examination that the
patrol car’s lights were not activated and that the police officer shined a spotlight on Mr.
David Lanier’s car. Mr. David Lanier got out of the car and ran away, leaving the
driver’s side door open. Mr. Wright could not recall whether any of the car’s lights were
on but said there were street lights in the area.
Mr. Wright saw a police officer approach the car and try to pull the Defendant out.
Mr. Wright did not hear the officer say anything to the Defendant, and the Defendant
yelled for someone to record them. Mr. Wright stated that the Defendant and the officer
were “tussling” and clarified on cross-examination that by “tussling,” he meant that the
Defendant tried to push the officer off of him. The Defendant then pulled out his gun and
began shooting the officer, and the officer fell to the ground. Mr. Wright testified that the
officer never reached for his weapon and never fired at the Defendant. Mr. Wright ran
inside to tell Mr. Christopher Lanier, and the Defendant ran away. Mr. Wright later
identified Mr. David Lanier in a photographic line-up as the person who ran out of the car
when Officer Bolton arrived. Mr. Wright also identified the Defendant as the shooter in a
photographic line-up and at trial.
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Mr. Jones and Ms. Freeman lived in a home next to the home of Mr. Wright and
Mr. Christopher Lanier. They were outside on their porch smoking a cigarette at the time
of the shooting. Mr. Jones and Ms. Freeman testified that they saw a car parked on the
street in front of their neighbor’s home. The car was facing “the wrong way” and away
from Mr. Jones and Ms. Freeman, and two people were inside the car. Mr. Jones said
vehicles generally did not park in that manner in the neighborhood. A police car with no
blue lights activated pulled up beside the car, and the police officer shined a spotlight at
the car. The driver then exited the car and ran down the street at a slow pace.
The views of Mr. Jones and Ms. Freeman were blocked by bushes between their
home and their neighbor’s home, and they could not see the officer approach the car. Mr.
Jones testified that he heard shoes “scuffling” and someone yell, “Get your phones out.
They killing us. They killing us. Get your phones out.” Mr. Jones did not hear the
officer say anything. Four to five seconds after hearing the man yell out, Mr. Jones heard
one gunshot, and after a pause of a “[s]plit second,” he heard five or six gunshots in rapid
succession, after which the shooter ran down the street. He heard only one gun fired. He
did not see the first shot fired or the officer being hit with the bullets. Rather, he testified
that before the shooter began running away, he saw the shooter walking backwards in the
middle of the street while shooting five or six shots toward the police car and downward
toward the ground where Mr. Jones later found the police officer. During the shooting,
Mr. Jones was trying to take cover while Ms. Freeman ran inside their home. He later
viewed photographic lineups but was unable to provide positive identifications of the
driver of the car or the shooter.
Ms. Freeman testified that she heard “feet moving” and saw the back of the
shooter. She did not hear the officer say anything but heard the shooter say, “Get your
cameras out. Get your cameras out. They’re killing us.” Ms. Freeman stated that she
heard five gunshots and that once the gunshots began, she ran inside her home to check
on her children. She could not recall whether the gunshots were fired simultaneously.
She said that she did not see the officer but that she heard the shots as the shooter was
backing up. She did not recall whether the shooter was pointing his firearm up or down
or whether one or two guns were shooting. When she came back outside, she saw the
shooter running from the area.
On cross-examination, Ms. Freeman testified that she could not see the shooter
shooting a gun because she could only see the shooter from behind as he was backing up.
She acknowledged that she did not tell officers in her statement that she saw the shooter
backing up. She was unsure whether she heard additional shots when she ran inside to
check on her children.
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Mr. Christopher Lanier testified that he was inside his home watching television
when he heard nine gunshots all from one gun. He was walking to the front of his home
to check on Mr. Wright when Mr. Wright entered the home and stated that someone had
shot a police officer. Ms. Crutchfield, who lived across the street and one house down
from Mr. Christopher Lanier, was also inside her home with her granddaughter when the
shooting occurred. Ms. Crutchfield testified that she heard five gunshots and that her
granddaughter crawled from the living room located in the front of the house into the den
and stated that she heard glass shatter. Both Mr. Christopher Lanier and Ms. Crutchfield
went outside once the shooting stopped.
Mr. Christopher Lanier, Mr. Jones, Ms. Freeman, and Ms. Crutchfield testified
regarding finding Officer Bolton lying face-down in a driveway near his patrol car while
covering his face. Mr. Christopher Lanier and Mr. Jones stated that Officer Bolton’s
weapon was in its holster. Ms. Crutchfield did not know the identity of Officer Bolton at
the time, but she later learned that he was the “neighborhood officer” who would wave
and speak to her whenever they saw each other. After neighbors tried to call 911 but only
received busy signals, Mr. Christopher Lanier told Officer Bolton that he was going to
call for help and used the officer’s radio to report the shooting. He remained with Officer
Bolton until other police officers arrived within two or three minutes.
Ms. Crutchfield testified that later, when officers were examining the scene, they
asked if it was always dark in front her house. She realized that her outdoor lights were
not on. The officers discovered that one of the globes to her outdoor lights had been
shattered and that the glass on her storm door also was cracked.
Mr. Desric Ivory testified that sometime after 9:00 p.m. on August 1, he was
getting out of his car his driveway when a man put a gun to the back of Mr. Ivory’s neck.
The man stated that he had just shot an officer and that he needed the car. Mr. Ivory gave
his car keys to the man and ran inside his home. Mr. Ivory stated that he was able to get
a clear look at the man while Mr. Ivory was entering his home, and he identified the
Defendant as the perpetrator in both a photographic lineup a few days after the incident
and at trial. Investigator William Merritt of the Shelby County District Attorney
General’s Office determined that the distance between the location of the shooting and
Mr. Ivory’s home was six-tenths of a mile. Mr. Ivory’s vehicle, a 2002 Honda Accord,
was later located at an apartment complex where the Defendant’s girlfriend resided.
Ms. Lawana Stamps, a police radio dispatcher, was working on the night of
Officer Bolton’s death. She testified that at approximately 9:15 p.m., she went to the
radio position for the Mount Mariah precinct where Officer Bolton was stationed when
she heard a “brief scuffle” over the radio and a portion of an officer’s identification or
call number. Through research, Ms. Stamps was able to identify the officer as Officer
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Bolton. Officer Bolton had not previously notified a dispatcher that he was on a traffic
stop, and he did not respond to her requests for communication. Ms. Stamps received a
radio transmission from someone, who she later learned to be Mr. Christopher Lanier,
stating, “You have a man down.” The transmission was cutting in and out, making it
difficult for Ms. Stamps to understand him. She dispatched officers to the area where
Officer Bolton had reportedly cleared approximately ten minutes earlier.
MPD Officer Kevin Bobo was the first officer to arrive at the scene. He testified
that at approximately 9:15 p.m., he was en route to the precinct when he heard someone
say a number over the radio. Through his supervisor and the dispatcher, Officer Bobo
learned that the communication had come from Officer Bolton. Officer Bobo went to
Officer Bolton’s last known location and began riding around searching for him. He
heard a citizen provide Officer Bolton’s location over the radio and went to the scene.
He found Officer Bolton lying face-down near his patrol car, with his hands covering his
face. Officer Bobo initially believed that Officer Bolton had been knocked unconscious.
He turned Officer Bolton over, saw his face injuries, called for help, and began chest
compressions. Due to Officer Bolton’s face injury, Officer Bobo could not administer
mouth-to-mouth resuscitation. The officers had to hold the bottom of Officer Bolton’s
chin in order to use a respirator. Officer Bobo stated that Officer Bolton’s firearm was
snapped down in the holster and that Officer Bolton appeared to have been “tussling”
based on the condition of his shirt.
MPD Officer Jacoba Boyd testified that he recognized Officer Bolton’s voice on
the radio and knew something was wrong. Upon receiving information regarding Officer
Bolton’s location, he went to the scene and was the third officer to arrive. Officer Boyd
stated that Officer Bolton’s face was “blown apart” and that he could see Officer Bolton’s
teeth from the hole in his face. Whenever the officers attempted to blow “rescue breaths”
into Officer Bolton’s mouth, the air would come out of the side of his face. Officer Boyd
had to use his hand and a glove to cover Officer Bolton’s facial wound to keep the air
from escaping. Officer Boyd observed a bullet wound in Officer Bolton’s leg, but he did
not recall seeing any evidence that bullets had struck Officer Bolton’s vest.
Officer Boyd observed that Officer Bolton’s firearm was secured in its holster and
that his belt was tightly secured. MPD Officer Christopher Sanders, who collected
Officer Bolton’s clothing and effects at the hospital, testified that Officer Bolton had a
.40 caliber handgun and three ammunition magazines and that the handgun was fully
loaded, which meant that the handgun had not been fired.
MPD Officer Jermaine Simpson also was one of the initial officers at the scene
and testified regarding Officer Bolton’s condition and the efforts to render aid to him. He
stated that one of the paramedics pulled him aside and told him that Officer Bolton was
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deceased but that they would continue to attempt to render aid. Officer Simpson said
Officer Bolton’s car was parked in front of a red Mercedes, and Officer Joshua Grimes
moved Officer Bolton’s car to make room for the ambulance. The driver’s side and
passenger’s side doors of the Mercedes were open. Officer Simpson shined a light inside
the Mercedes and saw loose marijuana, a bag of marijuana, and scales.
MPD Officer Jeffrey Garey with the Crime Scene Investigation Unit recovered ten
spent nine-millimeter bullet cartridges from the area of the shooting. He located what
appeared to be a fresh circular defect on a nearby wooden picket fence that was
consistent with a bullet hole, but he was unable to locate a spent bullet associated with
the defect. MPD Officer Andrew Hurst later returned to the scene and retrieved an
additional nine-millimeter bullet cartridge that Mr. Christopher Lanier had located on the
street.
A small pocket spiral notebook, a cellular phone, and a ballpoint pen were on the
ground in the location of the shooting, and another cellular phone was on top of the
Mercedes. MPD Officer Wilton Cleveland processed the two cellular phones, one of
which belonged to Officer Bolton and the other of which Officer Cleveland determined
belonged to “T. Wilbourn.” Officer Cleveland retrieved photographs of the Defendant
from his cellular phone and sent them to his supervisor for distribution. A mixture of
DNA consistent with at least three individuals was on the Defendant’s cellular phone, and
the Defendant was the major contributor.
Officer Garey collected a clear plastic bag and two buds of what appeared to be
marijuana, a digital scale, and a soda can from the Mercedes. MPD Officer Michael
Coburn later processed the Mercedes and collected a torn clear plastic bag of what
appeared to be marijuana, a small plastic bag of what appeared to be marijuana, a blue
container with green, leafy residue, a Cigarillo package, and a green, leafy substance
inside a compartment under the radio. The Defendant’s fingerprints were lifted off the
soda can, the interior door handle on the passenger’s side of the Mercedes, the top outer
door frame on the passenger’s side door, and the top outer door frame and window frame
of the rear passenger’s side door.
Mr. Owen Woods with the United States Marshals Service testified that the office
was contacted on August 1 to assist in locating the Defendant. Over the next several
days, officers tracked down the Defendant’s relatives and friends. On the evening of
August 3, an officer was contacted and was told that the Defendant wanted to turn
himself in to the United States Marshals Service. When the Defendant arrived, officers
patted him down and handcuffed him. The officers did not observe any injuries on the
Defendant, and he did not indicate that he was injured.
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Dr. Marco Ross, a medical examiner with the Shelby County Medical Examiner’s
Office, was accepted by the trial court as an expert in forensic pathology. He testified
that the autopsy of Officer Bolton was conducted by Dr. Karen Chancellor, who had
since retired. Dr. Ross reviewed the autopsy records, photographs, and evidence
collected during the autopsy. He stated that Officer Bolton’s cause of death was multiple
gunshot wounds and that his manner of death was homicide.
Dr. Ross testified that Officer Bolton sustained eight gunshot wounds. He
received one bullet wound to his chin and left side of his jaw. It was a “tangential
wound,” with the bullet tearing along the skin and fracturing his jaw and some teeth. The
bullet continued downward, exited the jaw, entered the upper left shoulder just above the
collarbone, fractured the collarbone, and continued into the chest wall. Bullet fragments
were recovered in the left chest wall between the shoulder blade and the ribcage. Dr.
Ross noted gunpowder stippling around the initial entry wound, which meant that the
muzzle of the gun was one-half of an inch to four feet away from the entry wound when
the gun was fired. Dr. Ross stated that although the injury was very painful, it was not
immediately lethal and that Officer Bolton likely would have survived had he received
medical treatment after sustaining this wound.
A second bullet entered Officer Bolton’s right forearm just below the elbow and
traveled into the right upper arm where the bullet was recovered. Dr. Ross noted
irregular stippling around the entry wound, some of which appeared to be gunpowder
stippling. He also noted larger abrasions around the wound, suggesting that the bullet
either ricocheted off a surface before entering the arm or traveled through an intermediate
target, after which pieces of the intermediate target hit the skin. A third bullet entered the
outer portion of Officer Bolton’s right hip, traveled through soft tissue and muscle, and
exited through the front of his right thigh. A fourth bullet entered the back of Officer
Bolton’s lower right thigh, traveled through the right femur just above the knee, and
exited through the front portion of his right knee.
A fifth bullet entered the right side of Officer Bolton’s torso in the mid-to-lower
area of his chest. The bullet traveled through the liver, the intestines, and the mesentery,
which carries the blood supply for the intestines. The bullet exited the lower abdomen
below the bellybutton. Dr. Ross testified that this was a fatal injury. A sixth bullet
entered the back of Officer Bolton’s upper left thigh, traveled through the pelvis,
perforated the left iliac artery and the intestines, and ended up in the lumbar spine. Dr.
Ross classified the injuries sustained from this gunshot wound as lethal. A seventh bullet
entered the back of Officer Bolton’s lower left thigh, traveled through soft tissue and
muscle, and fractured the left pelvic bone. Bullet fragments were recovered from the left
hip region. Dr. Ross stated that if Officer Bolton was lying face down on the ground, the
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locations of the bullet entry wounds were consistent with the Defendant firing the gun
downward while backing away from the officer.
An eighth bullet entered Officer Bolton’s right hand and traveled to the middle of
the hand, fracturing some of the bones. Dr. Ross noted that the entry wound was
atypical, which generally results if the bullet passes through an intermediate target or
ricochets off a surface before entering the body. The bullet associated with this wound
was recovered. Bullet fragments from the pelvis and left shoulder and bullets from the
lumbar spine, the right arm, and the right hand were submitted for testing.
On cross-examination, Dr. Ross acknowledged that both the Defendant and
Officer Bolton could have been in a number of different positions at the time of the
shooting. Dr. Ross also acknowledged that he could not determine the order in which the
shots were fired. He stated that he did not observe any soot on Officer Bolton’s gunshot
wound to his face and noted that soot on the surface of the skin typically occurs when the
handgun is shot at a range of one foot or less from the target. Dr. Ross stated that the
absence of soot does not necessarily mean that the gun was shot at a further distance and
testified on redirect examination that soot could be erased from the area of the wound by
a large amount of blood or from a breathing apparatus.
TBI Special Agent Cervinia Braswell, a forensic scientist in the Firearm
Identification Unit, was accepted by the trial court as an expert in firearm identification.
She examined eleven nine-millimeter cartridge casings in connection with Officer
Bolton’s death and concluded that all eleven cartridge casings were fired from the same
firearm. She also examined bullets sent to her from the medical examiner’s office and
concluded that the bullets had been fired from the same firearm. She did not receive a
nine-millimeter firearm to test.
Special Agent Braswell examined Officer Bolton’s service weapon, a SIG Sauer
.40 caliber semi-automatic pistol. She noted that each of the three magazines submitted
would hold twelve cartridges and that the chamber would hold one cartridge, for a total of
thirty-seven cartridges. She stated that thirty-seven cartridges were submitted with the
pistol and that there was no indication that Officer Bolton fired the pistol during the
shooting.
Special Agent Braswell examined Officer Bolton’s clothing for bullet holes and
gunshot residue. She testified that she observed a defect in Officer Bolton’s shirt that
corresponded with the gunshot wound to his face. She found gunshot residue around the
defect, which she explained typically meant that the gun was shot at a maximum of four
to five feet away. She observed a hole on the side of Officer Bolton’s shirt that was
consistent with the gunshot wound to the right side of his torso, and she noted that it was
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an area that was not covered by the bulletproof vest. She also observed holes in the back
of Officer Bolton’s pants that were consistent with the two gunshot wounds to the back of
his left thigh. She stated that there was gunshot residue around the hole in Officer
Bolton’s clothing associated with the gunshot wound to the back of his upper left thigh
but that there was no gunshot residue around the hole in his clothing associated with the
gunshot wound to the back of his lower left thigh. She acknowledged that a witness’s
testimony that the Defendant was firing shots into the ground while backing away would
explain the lack of gunshot residue on the clothing associated with the gunshot wound to
the back of the lower left thigh while other portions of clothing associated with gunshot
wounds had gunshot residue.
The jury convicted the Defendant of first degree premeditated murder, carjacking,
employing a firearm during the commission of a dangerous felony, to wit, carjacking, and
possession of a firearm while having a prior felony conviction involving the use or
attempted use of violence. The trial proceeded to the penalty phase, during which the
jury imposed a sentence of life imprisonment without the possibility of parole. The
parties reached an agreement regarding the Defendant’s sentences for the remaining
convictions. In accordance with that agreement, the trial court sentenced the Defendant
to twenty years as a multiple offender for the carjacking conviction, eight years at 100%
for the conviction for possession of a firearm during the course of a dangerous felony,
and ten years as a multiple offender for his conviction for possession of a firearm while
having a prior felony conviction involving the use or attempted use of violence. The trial
court ordered the Defendant to serve his sentences consecutively, for an effective
sentence of life imprisonment without the possibility of parole plus thirty-eight years.
The Defendant filed a motion for new trial, which the trial court denied. He then filed a
notice of appeal to this court.
ANALYSIS
The Defendant contends that (1) the evidence is insufficient to support his
conviction for first degree premeditated murder; (2) the trial court erred in prohibiting
defense counsel from referencing a prior shooting during opening statements; (3) the trial
court erred in excluding evidence of the Defendant’s reason for turning himself in to the
United States Marshals Office; and (4) the prosecutor improperly utilized a gun as a
demonstrative aid and made improper comments during closing arguments.
I. Sufficiency
The Defendant challenges the sufficiency of the evidence supporting his
conviction for first degree premeditated murder, arguing that the evidence fails to
establish that his killing of Officer Bolton was intentional and premeditated. When a
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defendant challenges the sufficiency of the evidence, the relevant question for this court
is “whether, after viewing the evidence in the light most favorable to the 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). On appeal, “‘the
State is entitled to the strongest legitimate view of the evidence and to all reasonable and
legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore,
this court will not re-weigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact, not this court, who
resolves any questions concerning “the credibility of witnesses, the weight and value to
be given the evidence, as well as all factual issues raised by the evidence.” State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court
applies the same standard of review regardless of whether the conviction is predicated on
direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
“Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of
guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).
First degree murder is the premeditated and intentional killing of another. T.C.A.
§ 39-13-202(a)(1). A person acts intentionally “when it is the person’s conscious
objective or desire to engage in the conduct or cause the result.” T.C.A. § 39-11-302(a).
A premeditated act is one “done after the exercise of reflection and judgment.” T.C.A. §
39-13-202(d). Premeditation requires a finding that “the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose to kill preexist in the
mind of the accused for any definite period of time.” Id. The statute also specifies that
“[t]he mental state of the accused at the time the accused allegedly decided to kill must be
carefully considered in order to determine whether the accused was sufficiently free from
excitement and passion as to be capable of premeditation.” Id.
Premeditation is a question of fact for the jury’s determination. State v. Davidson,
121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could
lead a rational trier of fact to infer that premeditation was established by the proof as
required by statute. Id. at 615. Courts frequently look to the circumstances surrounding a
killing to discern the presence of evidence sufficient to support a finding of
premeditation. State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013). Factors
which tend to support the existence of premeditation include: the use of a deadly weapon
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upon an unarmed victim; the particular cruelty of the killing; declarations by the
defendant of an intent to kill; evidence of procurement of a weapon; preparations before
the killing for concealment of the crime; and calmness immediately after the killing.
Bland, 958 S.W.2d at 660. The factors listed in Bland are not exhaustive, however. State
v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of the killing or evidence
establishing a motive for the killing may also support a conclusion that the crime was
premeditated. Id. Repeated blows, although not alone sufficient to establish
premeditation, may be a relevant factor in determining the existence of premeditation. Id.
Mutilation of the body may show that a killing was not rash or impulsive. Davidson, 121
S.W.3d at 616. Lack of provocation by the victim, failure to render aid, and destruction
or secretion of evidence may also support an inference of premeditation. Larkin, 443
S.W.3d at 815-16 (citing State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v.
Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000)).
The evidence presented at trial established that the Defendant was a passenger in a
parked car facing oncoming traffic where the Defendant and Mr. David Lanier had been
smoking marijuana and weighing drugs in preparation for a drug transaction. The
Defendant also had possession of a gun, which he knew he was prohibited from
possessing as a result of his prior criminal convictions. He had the gun hidden from
view, as Mr. David Lanier testified that he did not see a gun on the Defendant. The jury
could reasonably infer that the Defendant was aware that Officer Bolton would find the
gun which he was prohibited from possessing if the officer arrested the Defendant on
drug charges. In an effort to avoid an arrest, the Defendant struggled with Officer Bolton
and pushed the officer off of him, which gave the Defendant enough time to pull out his
gun and shoot the officer. The Defendant paused and then fired multiple shots in rapid
succession. No witnesses heard Officer Bolton say anything to the Defendant, and
Officer Bolton never drew his weapon.
The Defendant fired eleven shots and struck Officer Bolton eight times, and many
of the shots were at close range. Witnesses saw the Defendant shooting down toward the
ground where Officer Bolton was later found while backing away. Based upon the
testimony of eyewitnesses, as well as the testimony of Dr. Ross and Special Agent
Braswell regarding the location of the bullet entry wounds and the presence of gunshot
residue and/or stippling in the areas of some of the entry wounds, the jury could
reasonably infer that the Defendant initially shot Officer Bolton in the face and that after
Officer Bolton fell to the ground, the Defendant continued shooting Officer Bolton both
at close range and while backing away as the officer lay face-down on the ground. The
Defendant shot Officer Bolton in areas of his body unprotected by his bulletproof vest.
The Defendant did not seek to render aid to Officer Bolton. Rather, he fled the
scene and took Mr. Ivory’s car from him at gunpoint. The Defendant abandoned the car
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in the parking lot of the apartment complex where his girlfriend lived. He did not turn
himself in to law enforcement until days later when officers were actively searching for
him and closing in on his location. His gun was never located, and the jury could
reasonably infer that the Defendant disposed of it prior to his arrest. We conclude that
this evidence, when viewed in a light most favorable to the State, is sufficient to establish
that the Defendant’s killing of Officer Bolton was intentional and premeditated.
II. Limitation of Defense Counsel’s Argument During Opening Statements
The Defendant contends that the trial court erred in sustaining the prosecutor’s
objection to defense counsel’s reference to a prior officer-involved shooting during
opening statements. The Defendant maintains that the evidence was relevant to his state
of mind during the shooting and to refute the State’s claim that his killing of Officer
Bolton was intentional and premeditated.
During opening statements, defense counsel told the jury that he would expect that
the jury would hear testimony that “a few weeks earlier a young man named Darrius
Stewart had been killed.” The prosecutor objected, and the trial court sustained the
objection, telling defense counsel, “we discussed that previously.” The trial court
instructed the jury to disregard any reference to someone else being killed as such
information was irrelevant.
On appeal, the State argues that the Defendant has waived this issue by failing to
include an adequate record on appeal. We agree. The trial court’s comments reflect that
the issue had been addressed previously and that the trial court had concluded that the
evidence was inadmissible. However, the transcript of the hearing detailing what
evidence the defense sought to present and the basis upon which the trial court held the
evidence was inadmissible was not included in the appellate record. The Defendant, as
the appellant, has a duty to prepare a record that conveys “a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of appeal.”
Tenn. R. App. P. 24(b). “In the absence of an adequate record on appeal, we must
presume that the trial court’s ruling was supported by the evidence.” State v. Bibbs, 806
S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584 S.W.2d 811, 812
(Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App.
1979)). Although the State raised the issue of the inadequate record in its brief, the
Defendant did not file a motion to supplement the record or otherwise attempt to rectify
the problem. Accordingly, the Defendant is not entitled to relief regarding this issue.
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III. Exclusion of Evidence of the Defendant’s Decision to Surrender
After Mr. Woods testified on direct examination regarding the Defendant turning
himself in to the United States Marshals Service, defense counsel asked on cross-
examination, “Homicide suspects don’t usually turn themselves in to the Marshal’s
office, do they?” The State objected on the basis of relevance. Defense counsel stated
that he would “move on” but inquired as to whether he could ask Mr. Woods whether it
was unusual for a homicide suspect to turn himself in. Defense counsel argued that the
purpose of the questioning was to establish that the Defendant was afraid that he would
be killed if he turned himself in to the MPD. The trial court found that Mr. Woods could
not testify as to what the Defendant’s state of mind “might have been” and that if the
Defendant made such statements to Mr. Woods, the Defendant’s statements would be
inadmissible as self-serving. The trial court also found that defense counsel could
question the Defendant about his reasons for turning himself in to the United States
Marshals Service if the Defendant testified at trial.
The Defendant maintains that the trial court erred in finding that “any reference to
turning himself in to law enforcement other that [the] Memphis Police Department was
irrelevant.” However, the trial court did not conclude that any such evidence was
irrelevant. Rather, the trial court concluded that questioning Mr. Woods regarding the
Defendant’s reasons for turning himself in to the United States Marshals Service related
to the Defendant’s state of mind about which Mr. Woods would have no such knowledge
and that any statements made by the Defendant to Mr. Woods regarding the Defendant’s
reasons for doing so were self-serving and inadmissible. The trial court found that such
evidence could be presented through the testimony of the Defendant, but the Defendant
chose not to testify at trial.
To the extent that the Defendant challenges the trial court’s disallowing defense
counsel from questioning Mr. Woods about the reason for the Defendant’s request to
surrender to the United States Marshals Service, the Defendant failed to make an offer of
proof regarding what Mr. Woods’s testimony would have been had defense counsel been
allowed to pursue such a line of questioning. Error may not be predicated upon a ruling
excluding evidence unless “a substantial right of the party is affected” and “the substance
of the evidence and the specific evidentiary basis supporting admission were made
known to the court by offer or were apparent from the context.” Tenn. R. Evid.
103(a)(2). An offer of proof is a means by which to ensure “effective and meaningful
appellate review,” and “generally, if an offer of proof is not made, the issue is deemed
waived and appellate review is precluded.” State v. Hall, 958 S.W.2d 679, 691 n.10
(Tenn. 1997). The Defendant’s failure to make an offer of proof regarding what Mr.
Woods’s testimony would have been had the trial court allowed the Defendant to pursue
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such a line of questioning precludes this court from making an effective and meaningful
appellate review of the issue. Therefore, the issue is waived.
IV. The Prosecutor’s Conduct During Closing Arguments
The Defendant contends that the trial court erred in allowing the prosecutor to
utilize a handgun that was not used in the shooting during the State’s rebuttal closing
argument in the guilt phase of the trial. The Defendant argues that the prosecutor’s use of
the handgun had no purpose other than to inflame the jury. The State responds that the
trial court did not abuse its discretion in allowing the prosecutor to use the handgun as a
demonstrative aid. The State maintains that the prosecutor’s use of the handgun by
pulling the trigger once, pausing, and then pulling the trigger ten more times related to
the prosecutor’s argument that the killing of Officer Bolton was premeditated and that the
prosecutor and the trial court informed the jury that the handgun was not used in the
commission of the offenses.
During rebuttal closing argument, the prosecutor argued that the evidence
established first degree murder and stated:
And, if there is any grappling in your mind about premeditation, I would
just like for you to consider this.
This is not a loaded weapon. This is not a weapon that is in
evidence. This is strictly for demonstration purposes.
Defense counsel objected, arguing that the prosecutor’s “brandishing a firearm” was
“clearly inappropriate.” The trial court overruled the objection, finding that the
prosecutor could use demonstrative evidence in arguing that the killing was premeditated
and that the prosecutor was not arguing that the handgun was the same handgun used in
the shooting. The trial court instructed the jury that the prosecutor was using a replica of
a nine-millimeter handgun for demonstrative purposes only and that neither party was
suggesting that the handgun was the actual gun used in the shooting.
In arguing to the jury, the prosecutor continued:
… It is not a weapon that was involved in this case in any way. It is simply
for demonstration purposes as we talk about premeditation, and we talk
about reflection and judgment, and we think about what the witnesses said,
what the evidence has shown you, that there was an initial shot
(demonstrates), and then there were ten more shots.
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Defense counsel objected, arguing that no evidence has been presented establishing
exactly how the shooting occurred. Defense counsel noted that the prosecutor had pulled
the trigger on the gun once, and the prosecutor agreed that he intended to pull the trigger
ten more times, which defense counsel argued was inflammatory. The trial court
overruled the objection, noting that the State’s theory was that the Defendant pulled the
trigger of his gun eleven times, which could be reasonably inferred from the evidence.
The trial court found that the prosecutor’s actions were not inflammatory and were in
furtherance of his argument that the killing was premeditated. The prosecutor then
concluded his rebuttal closing arguing stating:
As I was speaking to you with regard to premeditation, and, in view
of what witnesses had said, like Marquis Wright and Otagar Jones, I was
wanting you to consider shooting a weapon, a .9 millimeter handgun, as the
spent cartridge cases indicted, and that they all came from one gun, what
that might be like.
And I had indicated that there was a shot (demonstrating), and then
there were ten more shots (demonstrating).
I submit to you that premeditation is not an issue. This is first-
degree murder.
Generally, the decision of whether to permit the use of demonstrative aids rests
within the discretion of the trial court. State v. Travis Seiber, No. W2015-00221-CCA-
R3-CD, 2016 WL 716307, at *5 (Tenn. Crim. App. Feb. 23, 2016) (citing State v. West,
767 S.W.2d 387, 402 (Tenn. 1989); State v. Delk, 692 S.W.2d 431 (Tenn. Crim. App.
1985)). The introduction of demonstrative evidence is permissible not only during trial
but also during closing arguments, so long as the demonstrative evidence is based on the
proof introduced at trial. See, e.g., State v. Hawkins, 519 S.W.3d 1, 50 (Tenn. 2017)
(concluding that the prosecutor’s use of a saw similar to that used by the defendant
during rebuttal closing argument to demonstrate how the defendant dismembered the
victim did not breach a clear rule of law as to constitute plain error); Travis Seiber, 2016
WL 716307, at *5 (holding that the trial court did not abuse its discretion in allowing the
prosecutor to use a plastic handgun as a demonstrative aid to demonstrate distance during
closing argument).
Trial courts also “have substantial discretionary authority in determining the
propriety of final argument but must be careful to restrict any improper argument.”
Travis Seiber, 2016 WL 716307, at *5 (citing Sparks v. State, 563 S.W.2d 564, 569-70
(Tenn. Crim. App. 1978)). Generally, closing argument “‘must be temperate, must be
predicated on evidence introduced during the trial of the case, and must be pertinent to
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the issues being tried.’” State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978) (quoting
Russell v. State, 532 S.W.2d 268, 271 (Tenn. 1976)). The State “must refrain from
argument designed to inflame the jury and should restrict its commentary to matters in
evidence or issues at trial.” State v. Gann, 251 S.W.3d 446, 460 (Tenn. Crim. App.
2007). “To merit a new trial, … the argument must be so inflammatory or improper as to
affect the verdict.” Id. at 459 (citing Harrington v. State, 385 S.W.2d 758, 759 (Tenn.
1965)).
In Travis Seiber, this court held that the trial court did not abuse its discretion in
allowing the prosecutor to use a plastic handgun as a demonstrative aid during closing
arguments of an aggravated robbery trial in order to demonstrate the distance between the
defendant and the victims during the offense. 2016 WL 716307, at *4-5. This court
reasoned that the distance was a critical issue in the State’s case because the case hinged
on a victim’s ability to view the defendant and the gun during the offense. Id. at *5. This
court also reasoned that the plastic gun was similar to the gun described by the victim and
that both the trial court and the prosecutor made it clear to the jury that the gun was not
the one used in the offense. Id.
In the present case, the State argued, and the trial court found, that the prosecutor
could use the handgun in arguing premeditation. Premeditation was a contested issue at
trial, and the State’s argument and demonstration suggesting that the Defendant pulled
the trigger once, paused, and then pulled the trigger ten more times was a reasonable
inference based upon the evidence presented at trial. The gun utilized by the prosecutor
was a nine-millimeter handgun, which was the same type of gun used by the Defendant in
committing the offenses, and both the trial court and the prosecution made it clear to the
jury that the handgun was not the one used in the offenses. Under these circumstances,
we conclude that the trial court did not abuse its discretion in permitting the prosecutor to
utilize the handgun as a demonstrative aid during rebuttal closing argument.
Finally, the Defendant asserts that the prosecutor improperly referred to him as
“the face of someone filled with hatred” and “the face of a coward” during the State’s
rebuttal closing argument in the penalty phase. However, the Defendant has waived this
issue by failing to raise it in his motion for new trial. See Tenn. R. App. P. 3(e) “[N]o
issue presented for review shall be predicated upon error in the … misconduct of jurors,
parties or counsel … unless the same was specifically stated in a mother for a new trial;
otherwise such issues will be treated as waived.”); State v. Jason Allen Cobb, No.
W2011-02437-CCA-R3-CD, 2013 WL 1223886, at *18 (Tenn. Crim. App. Mar. 26,
2013) (“Prosecutorial misconduct is an issue that appellants must raise in a motion for
new trial.”). While the State argued waiver in its brief, the Defendant did not file a reply
brief and has not requested that this court review the issue for plain error. We decline to
exercise our discretion to conduct a plain error review of the issue.
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CONCLUSION
Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm
the judgments of the trial court.
____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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