State of Tennessee v. Zackary James Earl Ponder ( 2019 )

08/21/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 16, 2019
STATE OF TENNESSEE v. ZACKARY JAMES EARL PONDER
Appeal from the Circuit Court for Stewart County
No. 2016-CR-85 David D. Wolfe, Judge
No. M2018-00998-CCA-R3-CD
The defendant, Zackary James Earl Ponder, appeals his Stewart County Circuit Court
jury convictions of first degree premeditated murder and aggravated assault, claiming that
the trial court erred by admitting into evidence three photographs of the victim, by
refusing to allow the defendant pretrial access to the criminal history of a State witness,
by limiting his cross-examination of the investigating officer, by permitting the
prosecutor to express his personal opinion during closing argument, and by failing to
address “the fine portion of the defendant’s sentence.” He also challenges the sufficiency
of the evidence for his conviction of first degree murder. Although we conclude that
portions of the State’s closing argument were improper, we deem the error harmless. We
detect clerical error in the judgment for the defendant’s conviction of aggravated assault
that necessitates the entry of a corrected judgment for that count. Otherwise, the
judgments of the trial court are affirmed.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed; Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.
Chase T. Smith, Clarksville, Tennessee, for the appellant, Zackary James Earl Ponder.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; W. Ray Crouch, Jr., District Attorney General; and Dani Bryson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The Stewart County Grand Jury charged the defendant with first degree
premediated murder and aggravated assault related to the March 2016 death of the victim,
Seth Michael Allen Brabant.
Cody Lancaster, who was in the same Army unit as the defendant and the
victim, testified that in March 2016, the victim, who was in the process of separating
from his wife, lived with Mr. Lancaster. Mr. Lancaster’s former fiancée, Jillian Valencia,
and Kent Carpeno also lived in the home. On the evening of March 5, 2016, they had a
party at the residence, and the defendant attended. The victim “was having a tough
night” because he could not reach his estranged wife and, as a result, the victim was
“aggressive with everybody.” The victim was also drinking heavily. At some point, the
victim and Mr. Carpeno began to argue, and, when Mr. Lancaster tried to intervene, the
victim struck Mr. Lancaster, “and that’s when all hell broke loose.” Mr. Lancaster
described a melee involving several people with “fists flying.” He could not recall how
the brawl ended, saying, “I mean as quickly as it started it stopped.” He recalled that the
defendant, who had not been drinking and who did not participate in the fracas, held Mr.
Lancaster down because he did not want Mr. Lancaster to fight the victim.
After the fight ended, Mr. Lancaster and Ms. Valencia went into Mr.
Lancaster’s bedroom to talk. Mr. Lancaster said that Ms. Valencia had been struck
during the altercation and that he was upset because he had been unable to protect her.
Sometime later, the victim got up to go to the restroom, and the defendant said
“something about, hey, I’m going to take him, you know, to his wife’s.” The defendant
and the victim then left together with the defendant’s “helping [the victim] out the door.”
Mr. Lancaster said that, as far as he knew, the defendant was taking the victim to visit the
victim’s estranged wife. The defendant telephoned Mr. Lancaster on the following day
“saying that he really wanted to talk to [Mr. Lancaster] about something,” but Mr.
Lancaster told him that he was too upset about an argument he had had with Ms.
Valencia on the previous evening to meet with the defendant.
Jillian Valencia testified that on March 5, 2016, she arrived home from
work at approximately 11:30 p.m. to find “the guys drinking like they always do, liquor
and beer.” Mr. Lancaster was downstairs with the victim, who was “completely
distraught” because his estranged wife had gone on a date with another man. She said
that the victim was “cursing, saying he was done. Just belligerent and completely
heartbroken.” Ms. Valencia said that the victim “was pretty drunk” but that she did not
drink alcohol, “[e]specially not with the guys.” She attempted to console the victim, and
he and Mr. Lancaster eventually went upstairs to do “the whole [m]ilitary drinking
-2-
thing,” which she described as involving “one fifth of Fireball . . . , a beer bong and a
whole bunch of beer.” She said that she “never had any fun,” so she went to bed.
Ms. Valencia testified that she awoke around 3:00 a.m. “to a fight going
on,” saying, “There’s people screaming at each other, nothing out of the ordinary.”
When she got up to investigate, she saw the victim “standing over [Mr.] Carpeno who is
sitting on the couch and he is just screaming at him. Just yelling at the top of his lungs,
belligerent.” When Mr. Lancaster asked the victim to leave, the victim “immediately
threw a punch at” Mr. Lancaster. Before Mr. Lancaster could retaliate, the defendant
“grabbed him and put him in a hold because that’s what friends do.” When Ms. Valencia
attempted to intervene, the victim struck her with his elbow as he threw a punch at
someone else. Ms. Valencia said that the fight did not last long and that, after it was
over, she pulled Mr. Lancaster into the bathroom to calm down.
When he saw that Ms. Valencia’s lip was bleeding, Mr. Lancaster left the
bathroom. Shortly thereafter, the victim came into the bathroom, and Ms. Valencia asked
him to back up because she “was kind of scared.” At that point, the victim said that he
just needed to use the restroom. Ms. Valencia recalled that the defendant “actually came
and saw that” she was upset and “up against the wall asking [the victim] to get away.”
She said that the defendant told the victim to step away from her.
Ms. Valencia left the bathroom and went downstairs to calm Mr. Lancaster.
While she was downstairs, she heard the victim “upstairs just punching walls and
punching windows.” She said that “[t]here were holes all over the house because he was
upset, he was belligerent.” A short time later, the defendant came downstairs and said
“like, all right, guys, I’m going to get him out of here. I’m going to try to diffuse the
situation, get him out of here, you guys are completely pissed off at him, I’ll take care of
it and I’ll take him with me.” Ms. Valencia did not see the pair leave because she had
begun to argue with Mr. Lancaster, who had, by that time, “punched [the] TV.”
Ms. Valencia testified that the next time she saw the victim, he was in the
hospital “on a heart monitor . . . keeping him alive.” She said that the victim “was beat
up pretty good and you could see the strangle marks from the shoestring around his
neck.” She stated that the marks around the victim’s neck did not come from injuries he
received during the fight, saying that she had seen him immediately after the fight and
that “he had like maybe a bloody nose and a couple of scrapes.” She said that the
victim’s face was “black and purple and swollen” and that he did not sustain those
injuries during the fight.
Gary Smith testified that on the morning of March 6, 2016, he was driving
to the store from his home on Glen Holliday Road in Stewart County, which he described
-3-
as “a rock road” with “cornfields on either side,” when he “found the gentleman in the
middle of the road.” He stopped his truck, got out, and looked around “in the trees and to
the hill to the side . . . just to make sure nobody else was around. It was kind of strange.”
Mr. Smith called out to the man, but the man did not respond. When he got close, Mr.
Smith saw that the man was “kind of trying to breathe,” so Mr. Smith knelt down and
“tried to turn his head a little bit, because it was face down in the dirt.” Mr. Smith
telephoned 9-1-1 and “decided to roll him onto his side to maybe try to help him.” While
he was on the telephone with 9-1-1, Mr. Smith saw a “rope or shoelace” around the
victim’s neck. Mr. Smith cut the shoelace with a knife he had in his pocket, and the
“color came back into [the man’s] face a little bit, but he was still belaboring trying to
breathe.”
Law enforcement officers and emergency medical personnel responded to
Mr. Smith’s call, and Mr. Smith remained on the scene until he was released by the
investigating officer. Officers photographed and collected the shoelace that Mr. Smith
had cut from the victim’s neck.
The victim was transported by ambulance to a predetermined landing area,
where he was taken aboard an air ambulance to be transported to Vanderbilt University
Medical Center. Vanderbilt Life Flight Nurse Joe Brentise testified that the victim, who
had no identification, “wasn’t keeping his airway open on his own” and, as a result, “was
in a life[-]threatening condition.” When Mr. Brentise performed “a sternal rub,” the
victim responded with “decorticate posturing,” which Mr. Brentise described as an
involuntary response indicative of brain injury. The victim’s pupils were unequal, which
also indicated a brain injury. The victim had “bruising to the left of his forehead,”
“marks around his neck,” and “abrasions to his left foot.” Mr. Brentise placed an
intubation tube and administered medications that sedated the victim before the flight
took off for Vanderbilt Medical Center.
Doctor Raeanna Adams first saw the victim on March 7, 2016, after the
victim had been admitted into the trauma unit at Vanderbilt University Medical Center.
During a neurological examination, the victim had “abnormal flexion of his left lower
extremity to pain” but “[n]o other spontaneous movement.” Although the victim
“occasionally would just open his eyelids to pain,” “he had no blink to threat,” and “his
eyes were not tracking.” Doctor Adams said that these signs were “consistent with brain
injury” “[t]hat results from a time period where there’s not enough oxygen for the brain.”
Testing established the presence of “[v]ery thick mucus . . . which did grow out some
bacteria, which was consistent with . . . aspiration meaning things from his stomach and
from his mouth had gone down into his lungs into his windpipe.” The victim’s blood
tested positive for the presence of benzodiazepines, which had been given to him on Life
Flight, as well as alcohol and cocaine metabolites. The victim had “dysconjugate gaze,”
-4-
meaning “that the eyes are not looking straight forward in the same direction. One is
looking a different direction than the other.”
Doctor Adams said that despite the severity of his injuries, the victim was
not considered brain dead “[b]ecause he still did have some brainstem reflexes, some
breathing. He had some eye opening, so some of those last few reflexes were still left.”
Doctor Adams nevertheless opined that the victim could not have recovered from his
injuries to live a normal life. She noted that another doctor found “no response to pain
stimuli” on March 10, 2016, indicating “a progression of worsening examination and
worsening function.” She said that the victim died “quite quickly” after life support was
removed on that date.
Stewart County Sheriff’s Department Investigator David Evans responded
to the scene on Glen Holliday Road in Indian Mound, which he described as a very rural
area, but the victim had already been transported from the scene by the time Investigator
Evans arrived. Investigator Evans traveled to the hospital, where he photographed the
victim. He recalled that the victim was on life support and unconscious. Investigator
Evans observed an abrasion on the victim’s forehead and a “very bright red, very pushed
in” “mark from where the shoelace had been around his neck.” Investigator Evans also
photographed the victim’s tattoos, which photographs he had the Stewart County
dispatcher “send out to local agencies asking for help identifying” the victim. A sergeant
at the Montgomery County Jail identified the victim from the photographs and also
provided Investigator Evans with contact information for the victim’s ex-wife and his
mother.
Investigator Evans spoke with the victim’s mother, who told him that she
had spoken with the victim on the previous day. The victim told her that he had worked
out with Mr. Lancaster at Planet Fitness in Clarksville. Using the victim’s cellular
telephone records, Investigator Evans was able to determine the location of the Planet
Fitness, and he was able to observe video surveillance of the victim working out with Mr.
Lancaster. Planet Fitness personnel provided Investigator Evans with a telephone
number for Mr. Lancaster.
Investigator Evans said that the information he gleaned during interviews
with Mr. Lancaster and Ms. Valencia led him to interview the defendant. The video
recording of that interview was played for the jury.
At the outset of the interview, the defendant confirmed Mr. Lancaster’s
statement “that there had been some drinking going on and a fight had occurred. [The
victim] was drinking heavily and picking fights with folks, and he decided to get him out
of there.” The defendant told Investigator Evans that he took the victim “for a ride . . .
-5-
and then dropped him back off at the . . . house.” When Investigator Evans told the
defendant that his version of the events did not make any sense given the victim’s
condition, the defendant said, “‘I wanted to teach him a lesson.’” The defendant told
Investigator Evans, “‘[Y]ou don’t treat family that way,’ the way [the victim] was
treating the other individuals at the residence.” Investigator Evans said that he thought
the defendant’s statement about family “was in reference to [the victim’s] being recently
out of the Army and going through a divorce and his friends kind of taking care of him.”
The defendant admitted to Investigator Evans “that he drove out to Glen
Holliday Road, and once there, put the shoestring around [the victim’s] neck, got out of
the vehicle to relieve himself, got back into the vehicle, [and] noticed that [the victim]
had turned blue.” The defendant claimed that “[h]e panicked, pushed [the victim] out of
the vehicle, and drove away.” Investigator Evans said that he did not think that the
defendant’s version of events made sense given that the defendant was a soldier with “at
least a basic first aid training.” The defendant told Investigator Evans that the victim,
who weighed approximately 240 or 250 pounds, “had passed out in the front passenger
seat” as the defendant drove from Clarksville into Stewart County, which drive took
approximately 37 minutes when Investigator Evans drove it.
During the interview, Investigator Evans noticed that the defendant was
wearing new shoes with laces that “matched the shoestring that was found around the
victim’s neck.” The defendant told him that he always wore black and green New
Balance shoes and that “he had gotten rid of” his old shoes.
Investigator Evans described the victim’s murder as “intimate,” opining that “it’s
not spontaneous.” He said,
[T]he shoelace was tied twice, so he had to get behind the
victim with that shoelace, wrap it around his neck, not just
once, twice, and then put that knot in there, a knot in such a
way that you can’t get it out. That’s very intimate. That tells
me that you wanted this guy to die.
The victim died on March 10, 2016, after his family made the decision to
withdraw life support. The defendant was then charged with first degree murder, and
Investigator Evans brought him in for another interview. During that interview, the
defendant related a story similar to that he gave during the first interview. The defendant
again told Investigator Evans that he had driven the victim to Glen Holliday Road,
stopped, got out of the vehicle, went around the vehicle, got
into the back passenger seat, got behind [the victim], took the
-6-
shoelace -- because it was there -- wrapped it around his neck,
not once, but twice, and then tied the knot. Indicated he got
out of the vehicle, relieved himself, came back, the victim . . .
was blue at that time. He said he panicked and he pushed him
out.
When Investigator Evans asked the defendant why he did not simply cut the string as Mr.
Smith had done, the defendant said, “‘I just panicked.’”
Investigator Evans suggested that the defendant “had thousands of
opportunities to stop” between the victim’s residence in Montgomery County and the
location where he abandoned the victim. Investigator Evans noted that the defendant told
him that he had driven past his father’s house going to and from the remote location.
Investigator Evans also observed that the defendant’s decision to drive 37 minutes to
such a remote area and then take the time to remove his shoelace from his shoe indicated
to Investigator Evans that the defendant had acted with deliberation. He said that the fact
that the defendant then took the time to get into the backseat behind the victim and wrap
the shoelace twice indicated to him that the defendant “wasn’t . . . trying to scare
anybody.”
Deputy Chief Medical Examiner Thomas Deering, who performed the
victim’s autopsy on March 11, 2016, testified that the cause of the victim’s death “was
hypoxic brain injury due presumably to ligature strangulation.” In this case, a ligature
“was sufficiently tight to cut off at least” the victim’s “internal jugular veins to his head
that caused him to pass out, caused him to have a low amount of oxygen going to his
brain for a critical amount of time until it caused injury.” Doctor Deering added, “It was
then the brain injury that led to his death, ultimately. The brain will swell, and other
complications happen when people have hypoxic or low oxygen brain injury.”
Doctor Deering identified photographs of the ligature injury to the victim’s
neck that appeared as “two basic linear marks” that were “discontinuous.” Doctor
Deering said that the “forensic neck dissection is negative,” indicating “that this is not a
forceful ligature strangulation.” He explained that a person could “be strangled without
cutting off [the] airway” and that “most of the deaths that are due to ligatures” occur
“because either the[] veins or the[] arteries in their neck are closed and that’s sufficient.”
He said that four pounds of pressure would “close the internal jugular vein” and that 10
pounds of pressure would “close the carotid arteries that are present.” Doctor Deering
testified that, in this case, the ligature was “just tight enough that [it] just closed down the
internal jugular veins, and that’s sufficient because it wasn’t undone.” He said that the
victim “would have passed out. And there was a period of time where if you’d cut it, he
probably would have been alright, but the time went on too long.” He said that,
-7-
generally, a ligature of the type present in this case would cause unconsciousness in “six
to ten seconds” and death in “a minute or two, or maybe even three.” During that time,
the victim would “show signs of hypoxic brain injury. And it has an almost seizure look
to it.” Doctor Deering clarified that, because he did not know how tight the ligature was
in this case, he could not provide an accurate estimate on how long it would have been
before the victim began to suffer brain damage. He said that “the bottom line on this is
that it obviously was enough to cut off internal jugular flow, or he wouldn’t have had
hypoxic brain injury.”
Doctor Deering observed that the lack of signs of manual strangulation or
any other significant injuries coupled with “an asphyxia of only the internal jugular veins
is something that we really would only see in an intentional hanging or in” cases where
the individual “has been stopped from fighting back,” such as where the individual is “in
a coma,” has “been beaten senseless,” or “is passed out or drugged or under the influence
of something . . . and can’t fight back.” He noted the presence of alcohol in the victim’s
blood and said that “[s]omething contributed to this gentleman allowing someone to tie
something around his neck that caused him to have hypoxic brain injury, and the only
thing that I find is the alcohol.” He added, “I mean, there’s no reason a healthy man like
this couldn’t reach up and try to remove this ligature from his own neck.”
Doctor Deering agreed during cross-examination that, even if the ligature
had not been tied very tight, the movement of the victim’s head could have generated
enough pressure to cause asphyxiation, particularly given that he was under the influence.
He noted during re-direct examination that “the fact that he still has some breathing
when” Mr. Smith arrived indicated that the ligature was “not real tight, it’s probably not
cutting off his carotid arteries, but it is enough to cut off his internal jugular. Even if it’s
episodically, you know, even if it’s in passing out, his head being forward completes
enough pressure to cut off his jugular vein.”
Convicted felon Joshua Johnson testified that in 2016, he was incarcerated
in the same pod as the defendant at the Stewart County Jail. Mr. Johnson claimed that,
while they were incarcerated together, the defendant told Mr. Johnson that he had killed a
man “[w]ith the shoestring of his shoe.” Mr. Johnson said,
He said that the guy he killed and the other buddy that he
knows got into an altercation the night before, and so he took
the victim out, got him drunk, and killed him for that
altercation. . . . He said he climbed in the back seat, used a
shoestring to wrap it around his neck, and when he thought he
was dead, he kicked him out of the car and left him on the
side of the road.
-8-
Mr. Johnson claimed that the defendant joked about the victim’s murder, saying, “Just,
like, about tying people up, choking people. I don’t really remember because it’s been so
long ago, but I know it was just a carefree attitude about killing people.” Mr. Johnson
said that no one had asked him to speak to the defendant, that he had voluntarily reported
the defendant’s statements to law enforcement, and that he had not received any
consideration from the State in exchange for his testimony.
During cross-examination, Mr. Johnson stated that he had “numerous
conversations” with the defendant about the victim’s murder. He agreed that it was not
uncommon for people in jail to lie to appear tougher than they actually are.
The defendant testified that he and the victim went through basic training
together in the Army and were roommates in the barracks when they were stationed at
Fort Campbell. Approximately two to three months after they were stationed at Fort
Campbell, the victim got married and moved out of the barracks. The defendant got
married a short time later. He and the victim remained friends and spent a good deal of
time together. On March 5, 2016, a fellow soldier called and asked the defendant for a
ride “because he had been drinking that night.” The defendant went to Mr. Lancaster’s
residence, picked up the soldier, Noah Fletcher, and drove him home before coming back
to the residence to socialize with the others at the party, many of whom he had known
since basic training. The defendant said that he was not drinking that night.
At some point, “the fight broke out,” and the defendant “was one of them
trying to break it up.” The defendant said that he intervened in the fight because he did
not want Mr. Lancaster and the victim to fight each other, explaining, “I really didn’t
want anyone fighting. We’re all supposed to be brothers, you know. You don’t want
your family to get hurt, much less family itself.” After the fight ended, the victim went to
the bathroom, and then the defendant heard “Ms. Valencia in the bathroom saying, ‘Get
away from me.’ She was upset because she had gotten hit.” The defendant “went back
to the bathroom to see what was going on, what [he] could do to try to help break that
up.” He said that he “talked [the victim] out of the bathroom.” The defendant said that
the victim “wasn’t in a confrontation with anybody” but that his “state of mind” was such
that he did not “really want to listen to anybody.” He saw the victim “punch a few holes
in the walls” and “punch out some windows.” At that point, the defendant decided to
take the victim out of the house, and the victim left with him willingly.
The defendant said that they “just went for a ride,” and he drove the victim
“out to a place where me and some friends of mine from school used to hang out. And
when we got there, I realized he was passed out.” The defendant insisted that he was
“[j]ust trying to get [the victim] out of the house and away from people that he was
-9-
having problems with.” He said that he did not want to take the victim “somewhere else
where he would wind up getting into it with somebody else who had nothing to do with
what was going on” and that he thought if he took the victim to a more peaceful and
isolated spot, “[m]aybe he’d wake up and be in a better mood.”
The defendant testified that he had not planned to tie the shoelace around
the victim’s neck, saying, “It’s not something I had planned, it’s just I wanted to scare
him. I was just going to, like, get out of the car and wait for him to wake up and freak
out, but I took it one step further than what I should have.” He called the victim’s murder
“[j]ust a prank between friends,” saying, “I was going to talk to him, teach him a lesson,
and just do the prank between -- just -- something dumb.” The defendant insisted that the
shoelace “was already out of the shoes” because he “had thrown the shoes away” after he
bought a new pair but kept the old laces as “[s]pare strings for the new shoes.” He said
that he got behind the victim and wrapped the shoelace around the victim’s neck twice
but said that he did not “know exactly why” he had done so. He said that he did not think
he had tied the knot very tightly. The defendant then got out of the car to smoke and to
relieve himself. When he got back into the car, the victim was turning blue, so he opened
the door and pushed the victim out onto the ground. He said that did not intend to kill the
victim and did not intend to leave the victim there to die. He admitted that he lied to his
friends afterwards about where he had taken the victim, explaining that he was scared.
He also admitted that he initially lied to Investigator Evans.
The defendant denied telling Mr. Johnson that he’d taken the victim out,
gotten him drunk, and killed him on purpose. He maintained that he simply panicked and
left the victim and that he would trade places with the victim “[i]n a second.” The
defendant said that although he had a cellular telephone in his possession on the night of
the victim’s death, the battery was dead and he had no means of charging it.
During cross-examination, the defendant acknowledged that he had
abandoned the unconscious victim in a remote location with a shoelace tied twice around
his neck. He was aware that the victim’s face was turning blue, saying, “I thought he was
dead. I freaked out.” Although he could have “[e]asily” untied the shoelace, he did not
do so because he “wasn’t thinking about it.” The defendant conceded that he did not stop
to call 9-1-1 or ask for assistance in any way. The defendant insisted that he was never
inflamed or angry at the victim and that he did not feel threatened by the victim in any
way. He claimed that he decided to tie the shoelace around the victim’s neck “once we
had gotten out there, as a prank.” He said that he could not recall when he had changed
his mind and decided to prank the victim but said that “it wasn’t long before the incident
itself had happened.”
-10-
The defendant conceded that he had been trained in rendering first aid in
battle and live fire situations while in the Army and that he had been able to use that
training in other stressful situations. Nevertheless, he did not even think to untie the
string around the victim’s neck when his face began to turn blue. He said that he
originally intended to untie the knot when the victim awoke but “just panicked” when he
saw “that he was blue.” He insisted, “I was trying to scare him. That’s all.”
The defendant admitted that he told Mr. Lancaster that he had driven the
victim “[d]own the road and dropped him back off at the house,” explaining, “I was
scared and I just made something up.”
Based upon this evidence, the jury convicted the defendant as charged of
first degree murder and aggravated assault by strangulation. Because the State had filed a
notice of its intent to seek a sentence of life without the possibility of parole, the trial
proceeded to a sentencing hearing in front of the jury. At the conclusion of that
proceeding, the jury concluded that the State had failed to establish any statutory
aggravators and sentenced the defendant to life imprisonment. The trial court merged the
defendant’s assault conviction into the first degree murder conviction and imposed a
single sentence of life imprisonment.
The defendant filed a timely but unsuccessful motion for new trial followed
by a timely notice of appeal. In this appeal, the defendant contends that (1) the trial court
erred by admitting into evidence three photographs of the victim taken during his life in
violation of the plain language of Code section 40-38-103(4); (2) the trial court’s refusal
to allow the defendant pretrial access to Mr. Johnson’s criminal history deprived him of
the right to a fair trial; (3) the trial court should have permitted him to inquire into the
victim’s previous arrest in Montgomery County; (4) the trial court erred by permitting the
prosecutor to state multiple times during his rebuttal argument that the defendant and his
counsel were attempting to “trick” the jury; (5) the trial court erred by “not addressing the
fine portion of the defendant’s sentence or even addressing as to whet[h]er the defendant
would waive his right to have a jury affix a fine to any of his convictions”; and (6) the
evidence is insufficient to support his conviction of first degree murder.
I. Photographs
At trial, the State admitted via the victim’s mother three photographs of the
victim taken during his life. The defendant objected to the admission of more than one
photograph, citing the terms of Code section 40-38-103. The trial court held that Code
section 40-38-103 did not prohibit the admission of more than one photograph and that
none of the photographs offered by the State was inflammatory.
-11-
Code section 40-38-103 provides, “In a prosecution for any criminal
homicide, an appropriate photograph of the victim while alive shall be admissible
evidence when offered by the district attorney general to show the general appearance
and condition of the victim while alive.” T.C.A. § 40-38-103(4)(c). We need not
determine whether the statute limits the State to a single photograph because, even if the
admission of the photographs in this case was error, it was harmless. See Tenn. R. App.
P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall
not be set aside unless, considering the whole record, error involving a substantial right
more probably than not affected the judgment or would result in prejudice to the judicial
process.”); see also State v. Adams, 405 S.W.3d 641, 658 (Tenn. 2013) (“Generally,
photographs taken during the life of a victim are not so prejudicial as to warrant a new
trial.”).
II. Mr. Johnson’s Criminal History
The defendant claims that the trial court’s refusal to require the State to
provide him with the criminal history of each of the State’s witnesses prior to trial
deprived him of the right to a fair trial. The State argues that the trial court did not abuse
its discretion.
Prior to trial, the defendant moved the trial court to require the State to
produce prior to trial reports for each State witness taken from the National Crime
Information Center (“NCIC”) database. The State opposed the motion, noting that it was
not permitted to run an NCIC check on all of its potential witnesses and that it typically
only did so on request of the defendant after the witness had testified on direct. The trial
court ruled that the defendant would be entitled to the criminal history of the testifying
witnesses after they completed direct examination. The court also indicated that the
defendant would be entitled to a break in the trial for the purpose of obtaining and
reviewing the history.
Before Mr. Johnson testified, the defendant indicated that he had “been
provided a criminal history of Mr. Johnson” and indicated that he would use the lunch
recess to review the report. When court reconvened, the State asked the trial court to
determine which of Mr. Johnson’s convictions would be admissible. At that point, the
defendant complained that the late disclosure of Mr. Johnson’s NCIC report deprived him
of “time to do . . . due diligence to call these people and get clarification on what he was
convicted of and what he wasn’t convicted of.” The trial court allowed defense counsel
to question Mr. Johnson under oath about his prior convictions and warned Mr. Johnson
that he would be guilty of perjury unless he answered honestly. The defendant indicated
that he was “satisfied with that” process and thanked the court “very much for the
leniency.”
-12-
During the jury-out hearing, Mr. Johnson testified that he had been
convicted of felony theft and shoplifting in Henry County; forgery and aggravated
burglary in Montgomery County; and theft in Carroll County. Mr. Johnson admitted that
he had Calloway County, Kentucky convictions of evading arrest and felony theft. Mr.
Johnson admitted that he had been convicted of tampering with a motor vehicle in
Missouri, which he described as “[c]ar theft.” Although Mr. Johnson said that he had
been released from custody on that case in 2007, placing that conviction outside the time
limitation for the use of prior convictions for impeachment, the trial court allowed the
defendant to use that conviction given the “short notice.”
When Mr. Johnson denied having convictions of first degree assault and
statutory rape, the defendant stated, “And in fairness, Your Honor, it just says Joshua
Johnson, so it’s a pretty common name. I know in Clarksville there’s three of them.”
The trial court stated that because the witness denied those convictions, the burden was
on the defendant to present evidence to contradict the witness.
At the conclusion of the jury-out hearing, the court and the parties agreed
that Mr. Johnson’s 2017 Kentucky convictions for felony evading arrest and felony theft,
2012 Henry County convictions for felony theft and shoplifting, 2012 Montgomery
County conviction for forgery, and 2002 Missouri conviction for motor vehicle theft
could be used for purposes of impeachment.
The defendant now asserts that “he was denied a fair trial through the
procedures administered by the trial court.” The record, however, indicates that the
defendant expressed his satisfaction with the procedure implemented by the trial court.
Consequently, he may not now be heard to complain. See Tenn. R. App. P. 36(b)
(“Nothing 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.”). Moreover, because the defendant
failed to support his argument with citations to relevant authorities, it is waived. See
Tenn. Ct. Crim. App. R. 10(b).
III. Victim’s Arrest
The defendant asserts that the trial court erred by refusing to allow him to
inquire into the details of the victim’s previous arrest, claiming that the evidence was
relevant to establish how the Montgomery County jail came to possess photographs of
the victim’s tattoos. The State avers that the trial court did not abuse its discretion
because evidence of the victim’s prior arrest was irrelevant.
-13-
Before his cross-examination of Investigator Evans, the defendant moved
the trial court to allow him to ask Investigator Evans how the Montgomery County jail
came to possess photographs of the victim’s tattoos. Specifically, the defendant wanted
to ask about the victim’s having been arrested for domestic violence, arguing that the
State “opened the door as to how they identified him and that a member of the
Montgomery County jail was the one who identified him.” The trial court deemed the
evidence irrelevant, finding “that the fact that this witness has testified that he had sought
the assistance of the Montgomery County officials in helping to identify the victim by the
use of tattoos” did not open “the door to get into the victim’s criminal history.” The court
deemed any connection between the victim’s arrest and his murder “very, very tenuous”
and concluded that, as a result, evidence of the victim’s arrest did not “make[] any of the
issues before this court more or less likely.”
Relevant evidence is evidence “having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. “Evidence which
is not relevant is not admissible.” Tenn. R. Evid. 402. Questions concerning evidentiary
relevance rest within the sound discretion of the trial court, and this court will not
interfere with the exercise of this discretion in the absence of a clear abuse appearing on
the face of the record. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v.
Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993); State v. Harris, 839 S.W.2d 54, 73 (Tenn.
1992). An abuse of discretion occurs when the trial court applies an incorrect legal
standard or reaches a conclusion that is “illogical or unreasonable and causes an injustice
to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (citing
Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)).
That the victim had been previously arrested in Montgomery County made
no fact of consequence in the defendant’s trial more or less likely. The defendant did not
claim that the victim was the first aggressor, which might have made a prior allegation of
domestic violence relevant to the victim’s propensity for violence. Contrary to the
defendant’s assertion, there was no reason for the “context of which the pictures were
taken” to be explained to the jury. In consequence, the trial court correctly excluded any
evidence related to the victim’s prior arrest.
IV. Closing Argument
The defendant contends that the trial court erred by permitting the
prosecutor “to accuse the defendant and defendant’s counsel of trying to trick the jury
despite pretrial motions for the State of Tennessee not to express its personal opinion
about the defendant or his counsel.” The State asserts that the defendant waived plenary
consideration of the error by failing to lodge a contemporaneous objection to the
-14-
statement. The State also avers that the prosecutor’s argument was not improper and that,
even if it was, the defendant failed to establish entitlement to relief.
During his closing argument, defense counsel, referring to Mr. Johnson,
stated:
He has committed forgeries where he has tried to trick people
and say, hey, this check or whatever it was is good, you take
it. The same thing to you guys. The same thing to the DA’s
office. Just tricks. That’s what he does. That’s what he has
always done.
The prosecutor then began his rebuttal argument with the following statement: “The only
trick in this trial is the [d]efendant’s attorney and the [d]efendant trying to convince you
that tying a string around the man’s neck until he dies is a prank. And that’s true.”
Contrary to the State’s assertion, this was not the only instance of the State’s asserting
that the defense was trying to trick the jury. The prosecutor also made the following
comments:
The [d]efendant wants you to believe that Joshua
Johnson took the stand and played a trick on you, on the
State, on the Court.
At the same time he wants you to believe that taking a
shoelace out of a shoe and wrapping it around a man’s neck is
an accident? . . . That’s a trick. Don’t fall for that.
....
. . . . Lancaster was furious that [the defendant]
executed [the victim]. This was an execution, not an
accident. Do not be tricked.
. . . . It’s disgusting to think that a trick is being played
in this courtroom. That’s to convince you that somebody
could accidentally gouge a man’s throat with a rope and call it
a prank. . . . .
I was taking notes during that closing argument, and
then I just stopped because sometimes I just -- you call it
what it is. You try to rebut some points, and then you stop
-15-
and just say, let’s be honest here, this ain’t no prank. This is
an execution and I’m sick of hearing the word accident.
....
That’s no brother. That’s hate. That is hate. Not a
single person in this room with a brother or a sister who they
love would push them out of a car upon seeing them turn
blue. Think about that. That is a trick they’re trying to play
upon you.
Though not specifically challenged by the defendant, the prosecutor also made the
following questionable comment:
. . . . Ladies and gentlemen, the guilty flee. The
righteous are bold like a lion. That’s the distinction you have
to draw. . . . In this case, he is not righteous, he is guilty of
premeditated first degree murder.
The State contends that the defendant waived plenary review of the issue by
failing to lodge a contemporaneous objection to any of the challenged commentary. The
defendant asserts that a contemporaneous objection was not necessary because he had
secured a pretrial ruling prohibiting the prosecutor from expressing his personal opinion
about the defendant or his counsel. See State v. McGhee, 746 S.W.2d 460, 462 (Tenn.
1988) (stating that securing a clear and definitive ruling via a pretrial motion to suppress
or motion in limine obviates the need for a contemporaneous objection to preserve the
issue for appellate review); see also State v. Alder, 71 S.W.3d 299, 302 (Tenn. Crim.
App. 2001). He also notes that he raised the issue in his motion for new trial. In State v.
Hawkins, our supreme court “appl[ied] plenary review, rather than plain-error review, to
the . . . alleged instances of improper prosecutorial argument raised in the motion for new
trial” even though Hawkins “did not contemporaneously object to any of the alleged
instances of improper prosecutorial argument.” State v. Hawkins, 519 S.W.3d 1, 48
(Tenn. 2017). Under these circumstances, we will apply plenary review to the
defendant’s claim of improper closing argument.
“While the scope and depth of closing argument is generally a matter
within the trial court’s discretion, the State is not free to do what they wish,” State v.
Jones, 568 S.W.3d 101, 145 (Tenn. 2019) (citation omitted), and judges must take care to
restrict improper argument, see State v. Hill, 333 S.W.3d 106, 130-31 (Tenn. Crim. App.
2010) (citation omitted). Because of the State’s unique role in a criminal case, the State,
in particular, “must refrain from argument designed to inflame the jury and should restrict
-16-
its commentary to matters in evidence or issues at trial.” Hill, 333 S.W.3d at 131. Our
supreme court
has recognized five general areas of potential prosecutorial
misconduct during closing arguments: (1) intentionally
misstating the evidence or misleading the jury as to the
inferences it may draw; (2) expressing personal beliefs or
opinions as to the truth or falsity of any testimony or the guilt
of the defendant; (3) inflaming or attempting to inflame the
passions or prejudices of the jury; (4) injecting issues broader
than the guilt or innocence of the accused; and (5) arguing or
referring to facts outside the record unless the facts are
matters of common knowledge.
Jones, 568 S.W.3d at 145 (citing State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App.
2003)).
Contrary to the State’s assertion that the prosecutor’s use of the word
“trick” was isolated and designed to answer defense counsel’s characterization of Mr.
Johnson’s testimony, the record establishes that a cornerstone of the prosecutor’s rebuttal
was his insistence that the defense was trying to “trick” the jury into believing a lie. “The
prosecution is not permitted to reflect unfavorably upon defense counsel or the trial
tactics employed during the course of the trial.” State v. Gann, 251 S.W.3d 446, 460
(Tenn. Crim. App. 2007) (citing Dupree v. State, 410 S.W.2d 890, 892 (Tenn. 1967);
Moore v. State, 17 S.W.2d 30, 35 (Tenn. 1929); Watkins v. State, 203 S.W. 344, 346
(Tenn. 1918); McCracken v. State, 489 S.W.2d 48, 50 (Tenn. Crim. App. 1972)). The
prosecutor also injected his personal opinion about the veracity of the defendant’s version
of the offense, saying, “[L]et’s be honest here, this ain’t no prank. This is an execution
and I’m sick of hearing the word accident.” See State v. Thornton, 10 S.W.3d 229, 235
(Tenn. Crim. App. 1999); see also State v. Hall, 976 S.W.2d 121 (Tenn. 1998); State v.
Henley, 774 S.W.2d 908, 911 (Tenn. 1989). He also improperly expressed his anger and
disgust with the defendant. See State v. Goltz, 111 S.W.3d 1, 7 (Tenn. Crim. App. 2003).
The prosecutor argued facts not in evidence when he stated that Mr. “Lancaster was
furious that [the defendant] executed [the victim].” The prosecutor also injected issues
broader than the defendant’s guilt by stating that the defendant had betrayed his brother
in arms, “That’s no brother. That’s hate. That is hate. Not a single person in this room
with a brother or a sister who they love would push them out of a car upon seeing them
turn blue. Think about that.” Finally, the prosecutor made an improper reference to
religious law, which “has been disapproved in this State.” See State v. Stephenson, 878
S.W.2d 530, 541 (Tenn. 1994), abrogated on other grounds by State v. Saylor, 117
S.W.3d 239 (Tenn. 2003). Although some of the “objectionable content was invited by
-17-
or was responsive to the” defendant’s closing argument, Darden v. Wainwright, 477 U.S.
168, 182 (1986), that is no excuse for the flagrant impropriety here. Our supreme court
has emphasized “that prosecutors must balance zealous advocacy with their obligations to
seek justice and ensure that defendants receive fair trials” and “urge[d] prosecutors to err
on the side of restraint and temperance when presenting closing arguments.” Hawkins,
519 S.W.3d at 50 (citations omitted).
Even inappropriate closing argument will not warrant a new trial unless it
was so inflammatory or improper as to affect the verdict. See Hill, 333 S.W.2d at 131
(citation omitted); see also Jones, 568 S.W.3d at 145 (“In other words, [improper
argument] will be reversible error if the improper comments of the prosecutor were so
improper or the argument so inflammatory that it affected the verdict.”). An appellate
court considering the harmful effect of improper closing argument examines the
following factors:
(1) The conduct complained of viewed in the context and in
light of the facts and circumstances of the case[;]
(2) [t]he curative measures undertaken by the court and the
prosecution[;]
(3) [t]he intent of the prosecutor in making the improper
statements[;]
(4) [t]he cumulative effect of the improper conduct and any
other errors in the record[; and]
(5) [t]he relative strength or weakness of the case.
Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
As indicated above, many of the improper comments were made in
response to defense counsel’s closing argument. “[T]he idea of ‘invited response’ is used
not to excuse improper comments, but to determine their effect on the trial as a whole.”
Darden, 477 U.S. at 182. Viewing the remarks in this case in the context of an “invited
response” and examining them in light of the record as a whole, we cannot say that the
improper argument was “so inflammatory or improper as to affect the verdict.” See Hill,
333 S.W.2d at 131 (citation omitted). The facts of the case were largely uncontroverted,
and the defendant’s claim that he wrapped the shoelace around the victim’s neck and then
left the blue-faced victim alone in the middle of nowhere in the dead of night to die as a
“prank” simply strained the bounds of credulity.
-18-
V. Fine
The defendant contends that the trial court erred by failing to determine
whether the defendant wished to waive his right to have the jury affix the fine and by
failing to address the issue of a fine altogether. He asks this court to declare his sentence
void on the basis of the alleged error. The defendant’s argument is perplexing given that
he received the only statutorily available sentence for his conviction and that no fine was
imposed. Moreover, he failed to support his argument with citation to any authority, and,
in consequence, it is waived. See Tenn. Ct. Crim. App. R. 10(b).
VI. Sufficiency
Finally, the defendant challenges the sufficiency of the convicting evidence,
arguing that the State failed to establish the element of premeditation. He concedes that
the proof adduced at trial supports, at most, a conviction of second degree murder.
We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
As charged in this case, “[f]irst degree murder is . . . [a] premeditated and
intentional killing of another.” T.C.A. § 39-13-202 (2006). As used in the statute,
“premeditation” is an act done after the exercise of reflection
and judgment. “Premeditation” means that the intent to kill
must have been formed prior to the act itself. It is not
-19-
necessary that the purpose to kill pre-exist in the mind of the
accused for any definite period of time. The 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. § 39-13-202(d).
Noting that “[p]roof of premeditation is inherently circumstantial,” this
court has observed that “[t]he trier of fact cannot speculate what was in the killer’s mind,
so the existence of premeditation must be determined from the defendant’s conduct in
light of the circumstances surrounding the crime.” State v. Gann, 251 S.W.3d 446, 455
(Tenn. Crim. App. 2007). Thus, when evaluating the sufficiency of proof of
premeditation, the appellate court may look to the circumstances surrounding the killing.
See, e.g., State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Coulter, 67 S.W.3d
3, 72 (Tenn. Crim. App. 2001). Such circumstances may include “the use of a deadly
weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the
defendant of an intent to kill; evidence of procurement of a weapon; preparations before
the killing for concealment of the crime[;] and calmness immediately after the killing.”
Bland, 958 S.W.2d at 660.
The evidence adduced at trial established that the defendant attended a
party at Mr. Lancaster’s residence and that the victim, who was a friend of both the
defendant and Mr. Lancaster and who was living with Mr. Lancaster at the time, became
extremely intoxicated during the party. At some point, a fight broke out among the
inebriated partygoers, and the defendant helped diffuse the situation. The victim was
very upset about the disintegration of his marriage. The defendant, who did not drink any
alcohol that night, offered to take the victim away from the residence to cool down. The
victim willingly left the residence with the defendant. On the following morning, Mr.
Smith discovered the victim in a remote area of Stewart County with a shoelace wrapped
around his neck. The victim, who was struggling to breathe, was taken via helicopter to
Vanderbilt University Medical Center, where he succumbed to his injuries four days
later. Doctor Deering testified that the cause of death “was hypoxic brain injury due
presumably to ligature strangulation.” The defendant admitted that he drove the victim,
who had passed out due to intoxication, to the remote area and that he got into the back
seat to wrap the lace of his running shoe around the victim’s neck. After the victim’s
face began to turn blue, the defendant pushed the victim out of the car and left him for
dead in the middle of the road. He then lied to Mr. Lancaster about the victim’s
whereabouts and initially lied to Investigator Evans about his involvement in the victim’s
death. The defendant claimed that he did not intend to kill the victim. Instead, he
-20-
claimed that the victim’s death was the accidental result of a prank gone awry. He
maintained that he had driven the victim into the middle of nowhere and wrapped the
shoelace around his neck to teach the victim a lesson about his mistreatment of Mr.
Lancaster and Ms. Valencia. He asserts that the State presented no evidence to contradict
his claim. The jury, however, as the judge of “the law and the facts,” may accept or
reject any evidence “no matter how uncontroverted or uncontested a particular fact or
element may appear.” State v. Thorpe, 463 S.W.3d 851, 862-63 (Tenn. 2015) (quoting
State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002)) (internal quotation marks omitted).
In our view, the evidence of the defendant’s calm and sober demeanor
when he drove the victim into the middle of nowhere and got into the backseat to fasten
the shoelace around the victim’s neck when coupled with the fact that the defendant
pushed the victim, who was by then beginning to turn blue from lack of oxygen, out of
the car with no hope of rescue establishes that he acted in a manner sufficient to satisfy
the elements of intent and premeditation.
VII. Clerical Error
As indicated, the trial court merged the defendant’s conviction for
aggravated assault by strangulation into his conviction of first degree murder and
imposed a sentence of life imprisonment. The judgment for the aggravated assault
conviction contains no mention of the merger and reflects a sentence of life
imprisonment, which is statutorily unavailable for a conviction of aggravated assault. In
consequence, the case must be remanded for the entry of a corrected judgment reflecting
the merger of the convictions.
VIII. Conclusion
Based upon the foregoing analysis, we affirm the judgments of the trial
court.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
-21-