State of Tennessee v. McArthur Bobo ( 2022 )

03/17/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 5, 2022 Session
STATE OF TENNESSEE v. MCARTHUR BOBO
Appeal from the Criminal Court for Shelby County
No. 08-02588 Chris Craft, Judge
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No. W2021-00650-CCA-R3-CD
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The Defendant-Appellant, McArthur Bobo, was convicted by a Shelby County criminal
court jury of second-degree murder in 2009. Following a remand from our supreme court,
the trial court held a new hearing on the Defendant’s motion for new trial on May 12, 2021,
which the trial court denied. On appeal, the Defendant contends that the trial court erred
1) in denying the motion for new trial because it was unable to act as thirteenth juror in
determining the sufficiency of the evidence; 2) in failing to grant a mistrial or striking the
testimony of a witness whose written statement was allegedly not provided to the
Defendant; 3) in denying the Defendant’s motion to suppress; 4) in admitting jailhouse
calls into evidence; 5) in allowing testimony that children were present near the shooting
scene; and 6) in failing to grant a mistrial based on a totality of all errors. Following our
review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and JILL BARTEE AYERS, J., joined.
Terrell L. Tooten, Cordova, Tennessee, for the Defendant-Appellant, McArthur Bobo.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Marianne Bell and
Abby Wallace, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
On April 17, 2008, a Shelby County grand jury returned a one-count indictment
against the Defendant charging him with second-degree murder. He was convicted as
charged on July 24, 2009, and received a total effective sentence of sixty years at 100% to
be served in the Tennessee Department of Correction. On direct appeal, the Defendant
asserted that his Fifth Amendment rights and due process rights were violated by the State’s
use of jailhouse phone calls to impeach his sister, that the trial court erred in failing to
suppress allegedly suggestive photographic identifications of him, and that the trial court
erred in allowing testimony that children were present near the shooting. See State v.
McArthur Bobo, No. W2009-02565-CCA-R3, 2011 WL 2464207, at *1 (Tenn. Crim. App.
June 21, 2011), perm. app. dismissed (Tenn. June 21, 2011). This court affirmed the
Defendant’s sentence and conviction on direct appeal. Id. Although our supreme court
initially dismissed the Defendant’s application for permission to appeal, the post-
conviction court allowed the Defendant to enter a delayed Rule 11 application, which he
filed six months after it was due, and our supreme court again dismissed the application as
untimely. See Order, State v. McArthur Bobo, No. W2009-02565-SC-R11-CD (Tenn. July
14, 2014).
On November 26, 2014, the Defendant filed a pro se petition for post-conviction
relief in which he alleged ineffective assistance of counsel. Post-conviction counsel was
appointed, and the Defendant filed an amended petition on April 30, 2015. In the petition,
the Defendant alleged that trial counsel was ineffective for not requesting a mistrial or
striking testimony from the record when the State failed to produce the written statement
of witness Kenya Samuels, failing to include that issue, the jailhouse call issue, and the
testimony regarding children being present issue in the motion for new trial, and failing to
object when the trial court confused the facts of the Defendant’s case with facts from
another case at the motion for new trial hearing. See McArthur Bobo v. State, No. W2017-
00681-CCA-R3-PC, 2018 WL 5115689, at *2 (Tenn. Crim. App. Oct. 19, 2018), perm.
app. granted (Tenn. Feb. 27, 2019). The post-conviction court denied relief, and this court
affirmed the denial of the petition. Id. at *9. The Defendant appealed, and our supreme
court granted permission to appeal solely “for the purpose of remanding the case to the
original trial judge for a hearing on [the Defendant’s] motion for new trial filed November
2, 2009.” See Order, McArthur Bobo v. State, No. W2017-00681-SC-R11-CO (Tenn. Feb.
27, 2019). The Defendant filed an “amended motion for judgment of acquittal or in the
alternative motion for new trial” on August 30, 2019, which the trial court overruled
following a hearing on May 12, 2021.
This court gave a brief summation of the facts on direct appeal:
This case arises out of the defendant’s December 23, 2007 shooting
of Michael Gibbs, which resulted in the victim’s death. According to the
State’s proof at trial, the [D]efendant had been in a fight with another man at
the victim’s apartment complex approximately two days before the shooting.
Therefore, when the [D]efendant came to the apartment complex on the
evening of December 23, 2007[,] and stood outside an apartment where a
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birthday party was about to take place, the victim approached him and told
him that he was a troublemaker and that the residents of the complex did not
want him there. As the victim turned to walk away, the [D]efendant
mumbled a response. When the victim turned back around to ask the
[D]efendant what he had said, the defendant pulled a gun out of his jacket
and fired at the victim’s feet. The victim ran in an attempt to escape, but the
[D]efendant pursued and fired either two or three additional shots at the
victim before fleeing, leaving the victim to die at the scene.
McArthur Bobo, 2011 WL 2464207, at *1.
A more detailed factual background is necessary for analysis in the instant appeal.
At the May 29, 2009 motion to suppress hearing,1 April Bowman testified that she went to
an “apartment complex on Claybrook” on the night of December 23, 2007, to purchase
drugs. She arrived at the complex between 8:00 and 9:00 p.m., and after purchasing the
drugs, was inside her vehicle preparing to leave the complex when the Defendant walked
up to her car and was holding the door open and talking to her. The Defendant offered
Bowman money to have sex with him, which she declined. She recognized the Defendant
as someone with whom she had previously had sex for money. After she declined, the
Defendant “started to walk off” when he walked up to the victim, Michael Gibbs, and Gibbs
“said something to him.” The Defendant then “pulled out a gun and just started shooting.”
Although the complex did not have lights, Bowman was able to see the shooting because
her headlights were still on. Bowman “stopped moving” when the shooting started, and
everyone else who was outside the complex “scattered[.]” Bowman watched the Defendant
chase Gibbs around an SUV and around her vehicle and fire three or four shots from “a
black gun.” Bowman watched the Defendant “r[un] away and le[ave]” following the
shooting. Bowman exited her vehicle once the Defendant was gone, and other people
reemerged from the complex. Bowman never saw Gibbs bleeding, but she saw that he had
gunshot wounds. Bowman testified that people at the scene “said that he was bleeding on
the inside[.]” Bowman saw Kenya Samuels give Gibbs CPR, and when he resumed
breathing, bystanders tried to put Gibbs in the SUV to take him to the hospital. However,
police arrived while they were trying to put him in the SUV, and the police “told them to
take him back out of the truck and lay him back down on the ground[,] and that’s when he
died.” Bowman went with police “to the station to give a statement[.]” Police originally
wanted to “take [her] car” to “get the fingerprints off” it, but she did not think that ever
occurred. Bowman identified the Defendant in a photographic lineup as the shooter “an
hour or less” after police arrived at the shooting scene. She stated that the Defendant was
1
Although the motion to suppress hearing transcript was not included in the record on appeal, it was
included as an exhibit in the post-conviction record, and this court may take judicial notice of its own
records. See State v. Lawson, 291 S.W.3d 864, 869 (Tenn. 2009). We further take judicial notice of the
trial transcripts.
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wearing “a red leather jacket” with “blue stripes” during the shooting, and she was “sure”
that the person she identified in the photographic lineup was the same person who
committed the shooting.
On cross-examination, Bowman clarified that she went to the apartment complex to
buy “crack.” She testified that she was “not high” when she arrived at the complex. She
reiterated that after she got back inside her vehicle following the drug transaction, the
Defendant approached her car and stood between the car door and the car while he
“solicited [her] for sex[.]” Bowman testified that the first and only time she had sex with
the Defendant in exchange for money was approximately “two and a half weeks” prior to
the shooting. She did not learn the Defendant’s name until after the shooting occurred.
Bowman testified that the Defendant and Gibbs were standing “almost on [her vehicle’s]
hood” when the shooting started. Though she put her vehicle in reverse, she “hadn’t really
moved” when the shooting began. She observed the Defendant pull a gun out of his jacket
pocket and hold it in his right hand when he began firing the gun. Although Bowman
“ducked” when the shots began, she could “see above the dashboard.” She could not
remember how many people were outside the complex when the shooting began but stated
there were “at least” two.
Memphis Police Department (“MPD”) Officer C. C. Smith testified that he worked
with the felony response unit and was asked to take Bowman’s statement on December 23,
2007, at 11:00 p.m. Officer Smith presented an advice of rights form “to a witness viewing
a photo display” and a photographic lineup to Bowman, which she signed. She
“immediately” identified photograph number 3, a photograph of the Defendant, as the
person who shot Gibbs. Officer Smith elaborated that “as soon as [the lineup] was
presented to her, she said, [‘T]hat’s him, right there.[’]” When asked if she was “positive”
that the person she identified had shot Gibbs, Bowman answered affirmatively. On cross-
examination, Officer Smith explained that Sergeant Brewer had created the photographic
lineup.
Willie Bobo testified that he lived at the Claybrook apartment complex and was
hosting a birthday party for his brother at his apartment on December 23, 2007. Bobo saw
the Defendant and Gibbs, who also lived in the apartment complex, talking at Bobo’s front
door. Bobo testified that the Defendant was his “distant cousin.” Bobo was standing
approximately two doors down from his apartment and overheard Gibbs and the
Defendant’s conversation, which “wasn’t friendly” but did not “seem like . . . an
argument[.]” Bobo heard Gibbs say, “[W]e don’t want you to do it like that around here,
you know, I live here, you know, this is where we live.” The Defendant responded,
“[O]kay[,] I hear you[,] man[.]” Gibbs then “got ready to leave” and said, “[T]hat’s all I’m
saying” and “turned” to walk away from the Defendant. When he turned, the Defendant
said, “[H]ey[,] man” and subsequently “pulled a pistol and shot him[.]” After the
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Defendant fired the first shot, Gibbs ran, and the Defendant “chased after him” and “fired
a couple [] more times.” Gibbs ran “down beside [Bobo’s] brother’s truck and another car
that was sitting there.” Bobo estimated that he was standing approximately seventy feet
from the Defendant when he began shooting, but he testified that he knew the Defendant
was the shooter because he had to pass by the Defendant and Gibbs when he exited his
apartment. The Defendant “took off and ran” after shooting Gibbs.
Following the shooting, Bobo and others tried to help Gibbs, who was lying on the
ground between the SUV and Bowman’s vehicle. Bobo testified that Gibbs did not have
visible wounds, but he “started to bleed from the mouth.” Someone called 911, and Bobo
and other bystanders tried to put Gibbs in the SUV to take him to the hospital, but police
arrived and instructed them to put Gibbs back on the ground. Gibbs died at the scene.
Bobo told officers at the scene that the Defendant had committed the shooting. Bobo went
to the police station and gave a statement, and he was easily able to “pick” the Defendant
out of the photographic lineup because he had known him for “a good ten, fifteen years.”
He denied that the police told him whom to pick out of the photographic lineup. Bobo
stated that he was “positive” that the person he picked out of the photographic lineup was
the same person who shot and killed Gibbs. On cross-examination, Bobo clarified that the
Defendant’s mother was his “distant cousin[,]” and he knew the Defendant as a child, and
they were also in jail together. He “spoke to both” the Defendant and Gibbs when he
walked by them.
MPD Sergeant Kirby Brewer testified that he worked in the felony response unit and
responded to the shooting scene on December 23, 2007. Sergeant Brewer interviewed
Bobo at the scene. Bobo told Sergeant Brewer that he had witnessed the shooting and
knew who had committed it but informed him that the officers at the scene had the “name
wrong[.]” Bobo gave Sergeant Brewer the Defendant’s name and was “absolutely certain”
that the Defendant was the suspect police were searching for. Sergeant Brewer also
interviewed Bobo at the police station and generated the photographic lineup that Bobo
viewed. Sergeant Brewer testified that Bobo had “no hesitation” in identifying the
Defendant in the photographic lineup and denied telling Bobo whom to choose out of the
lineup.
Sergeant Brewer explained that he generated the photographic lineup with a
computer program. To use the program, Sergeant Brewer entered the Defendant’s “most
recent booking photo[,]” and the computer program returned “a bunch of” booking
photographs similar to the Defendant’s. Sergeant Brewer then went “through the photos
and tr[ied] to match [the Defendant’s] photo with similar photos.” The program returned
“thousands” of photographs, and Sergeant Brewer selected photographs that matched the
Defendant’s characteristics of “[m]ale black, similar age, similar facial features, . . . maybe
facial hair[,]” “hair on his head, complexion, [and] as many similar qualities” as possible.
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Sergeant Brewer specifically tried to “match up” photographs that were similar to the
Defendant’s “very wide nose[,]” “kind of a mustache[,]” “light facial hair around his
mouth[,]” “close cut hair[,]” and “medium to light complexion.” Regarding the
photographs’ backgrounds, Sergeant Brewer explained that they “just do the best we can
with what we get, what you get from the program.” He testified that the “most important
thing in a photo lineup” was the “actual face” of “the suspect in the photo.”
On cross-examination, Sergeant Brewer agreed that the Defendant’s photograph in
the lineup had a lighter background than the other photographs and that the Defendant’s
skin in the photograph was “lighter than the other five” photographs.
The trial court ultimately denied the Defendant’s motion to dismiss the photographic
lineup, finding that even though the Defendant’s photograph had more exposure than the
other photographs, there was no “indication that he is the person[,]” and the witnesses were
“identifying him in [c]ourt . . . not from a photograph that they were shown of him[] but
from actually seeing him that night.” Trial began on July 21, 2009.
Kenny Gibbs testified that he was the victim’s brother.2 Kenny testified that he went
to the hospital upon learning that Gibbs had been shot. Gibbs “passed away in the operating
room.” On cross-examination, Kenny testified that Gibbs was his only brother.
April Bowman’s trial testimony largely echoed that of her suppression hearing
testimony. Bowman testified that she arrived at the apartment complex on Claybrook on
December 23, 2007, between 8 and 9 p.m. She went to the complex to “buy some crack”
but was not under the influence of drugs when she arrived. Bowman parked her car in
front of the complex and exited the vehicle to buy crack from someone, whom she testified
was not Gibbs. Bowman reentered her car and had started the ignition when a “guy stopped
[her]” from shutting her door and was talking to her. The guy, later determined to be the
Defendant, was “holding the door with one hand” and “had his other hand up on top of the
car” while Bowman sat in the driver’s seat. The Defendant was “trying to get [Bowman]
to remember him” from when they previously met at “another drug house” where she had
sex with him “[f]or money.” Bowman explained that she could see the Defendant’s face
because the lights inside her car were on. The Defendant asked Bowman to have sex with
him, to which she responded, “[N]o, thank you.” She stated that the Defendant was
wearing a “red[,] white[,] and blue” leather jacket. After declining the Defendant’s
invitation, Bowman “slammed [her] door” and was preparing to back out of her parking
spot when Gibbs “said something” to the Defendant while they were standing in front of
Bowman’s car. The Defendant then “reached down in his jacket and . . . pulled out a gun”
2
Because the witness and the victim share the same surname, we refer to the witness by his first name. We
intend no disrespect in doing so.
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and started shooting at Gibbs. Gibbs ran around the SUV that was parked next to
Bowman’s car in an attempt to escape the Defendant, but the Defendant gave chase and
shot Gibbs. Gibbs “got back up” and ran around Bowman’s car, where the Defendant
followed him and shot him again. Bowman denied seeing Gibbs and the Defendant in an
altercation and stated that Gibbs did not have a weapon. Following the shooting, Bowman
was “scared” and moved residences because she “knew that [the Defendant] knew where
she was[.]”
Bowman testified that she saw the Defendant shoot towards Gibbs at least three
times. Following the shooting, Bowman observed the Defendant run “towards the entrance
of the complex.” Bowman put her car in park and exited via the passenger door because
Gibbs “was laying up against the car.” Bystanders then came back outside of the complex,
and there “was a girl there [, Kenya Samuels,] trying to give [Gibbs] CPR.” Gibbs resumed
breathing, and Samuels stated that Gibbs “was bleeding on the inside” and “was going to
die if they didn’t get him to a hospital.” Bystanders were placing Gibbs into the SUV to
take him to the hospital when police arrived and told the bystanders to place Gibbs back
on the ground. Bowman agreed that she gave police a formal written statement at the police
station and identified the Defendant from a photographic lineup. She explained that she
“knew it was him as soon as [she] saw the picture.” She denied that police instructed her
who to choose out of the photographic lineup.
On cross-examination, Bowman agreed that there were multiple people who sold
drugs out of the apartment complex. She stated that Bobo used to live with her when he
“needed somewhere to live.” Bowman had known Samuels “about ten years” from being
“in the neighborhood.” She clarified that she was introduced to the Defendant “at a crack
house” by his “cousin[.]” Bowman reiterated that she never saw Gibbs with a gun.
On redirect examination, Bowman agreed that she willingly gave police a statement
and that they had not threatened her. She clarified that although the complex did not have
a lot of lights, she was able to see the shooting because her headlights were turned on. She
explained that although she bought drugs from Bobo’s apartment, she did not actually
purchase the drugs from Bobo. Bowman reiterated that her testimony was what she
“remember[ed] happen[ing].”
Kenya Samuels testified that she lived in the downstairs portion of the Claybrook
apartment complex in December 2007. Gibbs was engaged to Samuels’ sister, Lateshia
Samuels, at the time of his death. Samuels knew Bobo and Cartrevion Chapman, or
“Trell,” through living at the complex. Samuels testified that a birthday party was being
held in Bobo’s apartment for his brother, Derrick Bobo, on the night of the shooting.
Samuels stated that there was a lightbulb outside every apartment door and “security lights
on top of the building.” She estimated that there were between thirty and forty people
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“hanging out in the parking lot” on the night of the shooting. Samuels testified that on the
night of the shooting, she and Chapman walked to the corner store and saw the Defendant
walking in front of them as they returned to the complex. Samuels stated that the Defendant
was wearing a black, white, and blue Oreo cookie leather jacket on the night of the
shooting. She recognized the Defendant because she met him “a couple of days prior” at
Bobo’s apartment. Samuels elaborated that the Defendant was fighting with Chapman at
Bobo’s apartment. Samuels saw the Defendant “just standing” in the complex parking lot
for ten to fifteen minutes, and she felt that “something [was] not right[.]” She relayed her
fears to Bobo and his brother, and Gibbs “came downstairs” and told the Defendant that he
had “caused enough trouble[,]” and they did not “want [him] over [t]here because [he was]
a troublemaker, [he] could leave.” Gibbs turned to walk away, the Defendant said
something to him, and when Gibbs turned back around to ask the Defendant what he said,
the Defendant “immediately” fired a shot towards Gibbs’ feet. Samuels yelled at Gibbs to
run, and the Defendant “chased” Gibbs as he attempted to escape. As Gibbs ran around
the parked SUV, the Defendant fired “approximately four shots[.]” Samuels ran to Gibbs
and initiated CPR. Samuels described the Defendant’s gun as silver and possibly .38
caliber. After shooting Gibbs, the Defendant ran away from the complex while firing his
gun, not “at anything in particular[.]” Samuels administered CPR but was unsuccessful in
reviving Gibbs, who was “gasping[.]” Samuels was transported the police station to speak
with police but was only able to give a “partial statement[.]” She was “upset” and had “a
hard time talking about what happened[,]” so police “came out and talked to” her the
following day.
On cross-examination, Samuels agreed that the Defendant was approximately twelve
to fifteen feet in front of her and Chapman as they walked towards the apartment complex.
She testified that she had “a little alcohol” the night of the shooting but denied ingesting
any drugs or alcohol prior to the preliminary hearing. She clarified that the Defendant was
wearing a “leather-ish” coat with the Oreo cookie logo on it and dark jeans. Samuels
agreed that Gibbs told the Defendant that he could not sell drugs at the apartment complex
because it was family-owned. She denied that she tried to “duck” and “cover” herself while
she yelled at Gibbs to run. Samuels reiterated that the gun the Defendant fired was a silver
revolver. She testified that Bobo was nicknamed “Crip” due to having a “club foot or
something when he was younger[.]” Samuels clarified that when she went to the police
station to give a statement following the shooting, she was “in shock” and “couldn’t talk
right then” because she was “crying[] and hyperventilating.” The police “c[a]me back later
and took a statement” from her. Samuels remembered police “typing as [she] was talking”
when she attempted to give her original statement. She did not remember initialing a
statement but remembered “signing something.” She clarified that she signed a document
regarding whether what she told police was “what happened to the best of [her] knowledge”
when police talked to her two days later, not the night of the shooting.
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Willie Bobo testified that he was in jail for “drug sales” at the time of trial. He denied
that the State offered him “any kind of deal” in exchange for his testimony. Bobo’s trial
testimony was similar to that of his suppression hearing testimony. He reiterated that he
was throwing a birthday party for his brother, Derrick Bobo, on the night of December 23,
2007. Bobo testified that Gibbs’ children, a two-year-old daughter and a “five or six[-
]month[-]old” daughter were present at the complex on the night of the shooting. Bobo
reiterated that he walked past Gibbs and the Defendant having a “normal conversation” in
front of Bobo’s apartment door. He again testified that the Defendant was his distant cousin
and that he had known him since the Defendant was twelve or thirteen years old. Bobo
was walking to his neighbor’s apartment a few doors down when he heard the Defendant
say, “[H]ey, man” to Gibbs immediately before the Defendant fired the first shot. Bobo
described the Defendant’s gun as “a thirty-eight revolver or something like that.” Gibbs
ran, and the Defendant followed, firing “a couple of shots” before running past Bobo, away
from the complex. Bobo explained that Methodist hospital was “about two blocks up the
street[,]” so he and other bystanders decided to try to take Gibbs there because he was
“struggling to breathe[.]” He reiterated the police arrived and instructed them to place
Gibbs back on the ground. Bobo testified that the Defendant was the only person who
possessed a gun on the night of the shooting. Bobo gave a statement at the police station
and identified the Defendant from a photographic lineup at the station. Bobo chose the
Defendant out of the lineup because he “saw him shoot” and was able to identify him
“instantly.” He denied that police instructed him to pick the Defendant out of the lineup.
Bobo stated that he was “[o]ne hundred percent positive” of his identification of the
Defendant as the shooter.
On cross-examination, Bobo agreed that he knew Bowman, Samuels, Gibbs, and
Chapman and that all but Bowman lived at the Claybrook complex. He reiterated that he
did not see anyone but the Defendant with a gun and described the gun as a chrome
revolver. Bobo elaborated that he and Chapman tried to place Gibbs in Derrick Bobo’s
SUV to take him to the hospital before police arrived. Bobo agreed that he saw the
Defendant and Chapman having an argument the day before the shooting. On redirect
examination, Bobo elaborated that the fight between the Defendant and Chapman was
“broke[n] up,” and the two “hugged and shook hands” afterwards. He explained that in
addition to the light outside each apartment door, the apartments had lights turned on inside
that were coming through the windows, and it was “pretty lit up.”
Cartrevion Chapman testified that he was in jail at the time of trial and that his friends
referred to him as “Trell.” He explained that Bobo was his stepfather and that they lived
together in Bobo’s apartment in December 2007. Chapman testified that on December 23,
2007, he was walking back to the complex with Samuels, whom he referred to as his
“aunty,” after visiting the corner store. The Defendant was walking in front of Chapman
and Samuels on the way back to the complex, and Chapman noticed that the Defendant
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had a gun in the pocket of his “blue and white” jacket. Chapman saw the Defendant talking
to Bowman once they arrived at the complex, and he saw Gibbs exit Bobo’s apartment.
Gibbs told the Defendant that he needed to leave the complex because he was a
“troublemaker[,]” and the Defendant told Gibbs that he was “going to sell dope wherever
[he went].” Gibbs turned to walk away, and the Defendant called his name, and Gibbs
turned around. The Defendant’s first shot missed Gibbs, but he chased Gibbs as he
attempted to retreat and shot him two times. The Defendant fired another shot as he ran
away from the complex. He reiterated that Samuels performed CPR on Gibbs, and he and
Bobo tried to put Gibbs in the SUV to take him to the hospital, but police arrived and made
them put Gibbs back on the ground. He did not see Gibbs possess a gun. Chapman
affirmed that people in the complex had their apartment lights turned on and their doors
opened. He was “sure” that the Defendant was the person who shot Gibbs. Chapman gave
a statement to police at the police station and picked the Defendant out of a photographic
lineup. He denied that police instructed him who to choose. He explained that he wrote
“Arthur Boyd” by the Defendant’s photograph because he was “nervous[,]” and the police
would not let him get the paper back to correct the name. Chapman described the gun the
Defendant used as a “short thirty-right revolver” that was “gold and silver with a brown
handle.”
On cross-examination, Chapman denied that he was receiving anything in return for
his testimony. Chapman testified that he was partially illiterate. He explained that he wrote
“Arthur Boyd” instead of “McArthur Bobo” because Samuels began having an asthma
attack while he was writing his statement, and he “hurried up and wrote it down” so that
he could help Samuels. He stated that he told police that the shooter’s name was McArthur
Bobo. Chapman explained that he initialed his statement because he thought “police had
the statement right[,]” though they did not read the statement back to him. He testified that
he did not know anyone named Arthur Boyd.
On redirect examination, Chapman testified that he felt afraid during the shooting
and was focused on the Defendant and Gibbs while it was happening. He clarified that he
could write his name but could only read “[a] little bit.” Chapman testified that police
typed his statement while he was giving it and gave him the written statement to review
and sign, but he was unable to read it. On recross-examination, Chapman agreed that police
told him that one of six people depicted in the photographic lineup “could have been the
guy” that shot Gibbs. On further redirect examination, Chapman clarified that he chose
the Defendant out of the lineup because “that [was] the person who shot Mike Gibbs[.]”
MPD Officer Steven Foglesong testified that he worked as a patrol officer in
December 2007. He and his partner, Officer Clayton Turner, responded to a “shots fired”
call at the Claybrook apartment complex on December 23, 2007. He testified that when
they arrived at the complex, he saw “about six people trying to load the victim into a[n]
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SUV.” Officer Foglesong explained that he instructed the group to place Gibbs back on
the ground because they could have “been making it worse” and because he needed to
determine if the group was suspects or witnesses. Gibbs had a pulse but was gasping for
breath, and Officer Foglesong called for paramedics. There was no weapon near Gibbs.
All of the people at the scene “were trying to help” and “trying to scream that they knew
what was going on[,] and they knew who did it.” Officer Foglesong developed the
Defendant as a suspect “immediately[.]” There was some confusion at the scene as to
whether the Defendant was named McArthur Boyd or McArthur Bobo, but Bobo gave the
police the Defendant’s date of birth, and they were “able to determine all of his
information.” The group told Officer Foglesong that the Defendant was wearing a “blue,
red, and white racing jacket” and gave him an address “to check out[.]” He explained that
they did not go door-to-door asking people questions because “[e]veryone that lived in the
apartment complex was already outside.” The felony response unit and crime scene unit
also arrived at the shooting scene.
On cross-examination, Officer Foglesong estimated that between six and twenty
people were in the parking lot when he arrived at the scene. He testified that they did not
recover any shell casings or other physical evidence. On redirect examination, Officer
Foglesong clarified that it was the felony response unit’s job to interview witnesses and
take their statements.
Memphis Fire Department (“MFD”) Paramedic Eli Bredbenner testified that he
responded to the Claybrook complex on December 23, 2007. He explained that when he
examined Gibbs at the scene, he did not have a pulse and was not breathing. Paramedic
Bredbenner observed an entrance wound on the left side of Gibbs’ chest. Gibbs’ wounds
were not “actively bleeding[,]” and Paramedic Bredbenner observed a “bullet just riding
underneath his skin” on the other side of Gibbs’ chest. He began administering CPR to
Gibbs and “placed him on a cardiac monitor.” Paramedic Bredbenner started intravenous
lines on Gibbs in order to administer fluids and drugs in an attempt to restart Gibbs’ heart,
but his efforts were unsuccessful. On cross-examination, Paramedic Bredbenner was
unsure of how many bystanders were in the parking lot when he arrived but stated there
“could have been” twenty people.
MPD Officer Marlon Wright testified that he was assigned to the crime scene unit
and responded to the shooting scene on December 23, 2007. Officer Wright took
photographs of the parking lot, collected measurements, and collected Gibbs’ clothing. He
also drew a diagram of the crime scene. Officer Wright recovered $60 in one-dollar bills
and a bag containing 1.6 grams of “crack cocaine” from Gibbs’ pants pocket. There were
not shell casings at the scene, and Officer Wright did not collect DNA evidence because
“[t]here wasn’t anything to collect DNA evidence from.” He was not “told that the suspect
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had touched” any of the vehicles at the crime scene. He agreed that “just because a person
is in the area[] does not necessarily mean they’re going to leave [DNA] evidence[.]”
On cross-examination, Officer Wright agreed that he did not collect any physical
evidence from the scene apart from Gibbs’ clothing, the $60, and the crack cocaine. He
agreed that if he had known that any vehicles at the crime scene were touched by a suspect,
it would have been “prudent” to impound and process the vehicles.
On redirect examination, Officer Wright explained that he did not use every tool in
his crime scene kit at every crime scene because not every crime scene warranted the use
of every tool. He only investigated the parking lot because that was where the actual crime
occurred.
Tennessee Bureau of Investigation (“TBI”) Special Agent Laura Hodge was received
by the court as an expert in gunshot residue examination. She testified that she received
samples taken from Gibbs and did find the presence of gunshot residue on the samples. On
cross-examination, Agent Hodge testified that she did not receive samples to test for
gunshot residue from anyone else involved in the instant case. On redirect examination,
Agent Hodge clarified that samples were taken to test for gunshot residue by rubbing
moistened Q-tips over “the surface of the hands of the individual.” She explained that if a
gunshot residue test was positive, it was indicative of an individual firing, handling, or
being near a gun when it was fired. On recross-examination, Agent Hodge agreed that a
gunshot residue test could be performed by police officers at a crime scene.
Dr. Marco Ross was received by the court as an expert in “forensic pathology or
medicine and the law.” Dr. Ross performed Gibbs’ autopsy on December 24, 2007. He
observed a gunshot entrance wound on “the left front side” of Gibbs’ chest wall that did
not have an exit wound. Dr. Ross “could actually feel the bullet just underneath the skin”
near Gibbs’ right nipple. He agreed that it was “possible” that the shooter was “just a few
feet away” from Gibbs when he shot him. Dr. Ross testified that Gibbs had a bullet wound
that “scraped across the front surface of each lung,” then “grazed across the front surface
of the heart, leaving a defect in the front of the right side of the heart.” The defect “went
completely through the front wall of the heart[.]” Dr. Ross explained that approximately
30% of Gibbs’ blood volume bled into his chest. He agreed that Gibbs’ specific wound
could cause “massive bleeding” inside his chest without causing bleeding outside of his
body. Dr. Ross testified that “nothing short of an immediate operation” could have saved
Gibbs, and even if that were performed, his “odds of survival” would have been “very,
very low.” Gibbs’ toxicology report was negative for the presence of alcohol or drugs in
his system. Dr. Ross collected the gunshot residue kit from Gibbs’ hands. He opined that
Gibbs’ cause of death was a “gunshot wound to the chest.”
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On cross-examination, Dr. Ross confirmed that Gibbs’ blood had tested negative for
the presence of cocaine. He stated that all the physical evidence he recovered from Gibbs’
body, including the gunshot residue samples, hair sample, nail clippings, bullet, and blood
samples, were turned over to law enforcement. On redirect examination, Dr. Ross testified
that the threshold amounts for the toxicology test were “very low amounts.”
At the close of the State’s proof, the Defendant moved for a judgment of acquittal,
which the court denied. Cleopatria Brown, the Defendant’s mother, testified on his behalf.
She stated that she was not related to Bobo and had “never seen [him] a day in [her] life.”
[Brown testified that the Defendant was with her at their home “practically all day” on
December 23, 2007. He went to his grandmother’s house at approximately two o’clock,
but he returned home because she was not there. Brown stated that she drove the Defendant
to his grandmother’s house at “eight thirty, eight forty-five” that night. She remembered
that day because it was “payday that day.” Brown affirmed that she was telling the truth
and stated that she “wouldn’t lie for [the Defendant].”
On cross-examination, Brown stated that she used the last name “Bobo” until she
turned eighteen. She testified that on December 23, 2007, she cooked dinner for her
children, including the Defendant, around “five or six in the evening.” She stated that they
finished eating around six o’clock and then talked and watched television in the living room
together. She could not remember what they talked about or watched on the television, but
she remembered that she drove the Defendant to his grandmother’s house at “eight thirty
or eight forty-five in the evening.” She agreed that she did not call police at any time to
tell them about the Defendant’s alibi. Brown remembered the Defendant wearing a white
shirt and gray pants on the day of the shooting.
Lillie Hood testified that she was the Defendant’s grandmother. She stated that on
December 23, 2007, the Defendant came to visit her at her home “[b]etween eight thirty
and nine” o’clock at night. Hood elaborated that she went to sleep after the nine o’clock
news at approximately ten o’clock., but the Defendant stayed in the back room of her
apartment and played cards with his father. She remembered the specifics of that day
because “it was close to the holiday[.]” Hood testified that she was telling the truth and
would not lie on her grandson’s behalf.
On cross-examination, Hood testified that she was “close” with her grandson but was
unsure of his birthday, age, or whether he used the name “McArthur Hood Bobo” or
“McArthur Bobo.” She stated that she and her son, the Defendant’s father, were at home
“all day” on December 23, 2007. She did not remember what the Defendant was wearing
on the night of the shooting. Hood testified that the Defendant was “gone” when she woke
up the following morning. She explained that she made a mistake when she told the
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defense investigator that she “went to bed at eight thirty or nine” on December 23, 2007.
She denied talking to any of her family members about her testimony.
Sheureka Mitchell testified that she was the Defendant’s sister. Mitchell testified that
on December 23, 2007, she went to her grandmother’s house around 9:10 p.m. to ask the
Defendant whether they were still going Christmas shopping the following day. Mitchell
explained that she lived in the apartment above her grandmother’s apartment. She
specifically remembered the day in question because “it was Christmas-time.” Mitchell
testified that she was telling the truth and was not “lying for [her] brother[.]”
On cross-examination, Mitchell elaborated that to get to her grandmother’s house on
December 23, 2007, she “[w]alked downstairs” and “walked in” to her grandmother’s
apartment, where she saw her grandmother watching television, and her father and brother
were in her father’s room “[p]laying cards.” She estimated that she was in her
grandmother’s apartment for “ten or fifteen minutes.” Mitchell testified that her brother
was wearing a “white shirt and some pants” when she saw him at approximately 9:10 p.m.
She agreed that she had discussed the Defendant’s whereabouts of December 23, 2007,
with her grandmother and brother “the day he went to jail” but denied that she had talked
to the Defendant “recently” at the time of trial. She denied ever talking to her brother about
“getting [their] stories straight[.]”
Following a jury-out hearing, the trial court allowed part of a July 5, 2009 jailhouse
call recording between Mitchell and the Defendant to be played for the jury to impeach
Mitchell’s credibility. Mitchell denied that the Defendant instructed her what to say in her
testimony and stated that he was “refreshing her memory” of December 23, 2007, because
she “didn’t remember everything.” She reiterated that she was “testifying to what [she]
kn[e]w” and agreed that although she did not remember everything on July 5, 2009, when
the jailhouse call took place, she did remember everything at the time of her July 23, 2009
testimony.
The trial court held the new motion for new trial hearing on May 12, 2021, at the
instruction of our supreme court. See Order, McArthur Bobo v. State, No. W2017-00681-
SC-R11-CO (Tenn. Feb. 27, 2019).
ANALYSIS
I. Role as Thirteenth Juror. The Defendant first contends on appeal that he was
again denied his right to a motion for new trial based on the trial court making “findings of
fact and affirm[ing] the verdict as the [thirteenth] juror[] based on information that was not
accurate to this case.” He states that the trial court was “not in a position to act as
[thirteenth] juror” in the instant case “based on the trial court’s statements on the record[.]”
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The Defendant elaborates that the trial court was unable to determine accurately the
credibility of Samuels, which was “essential to this case, especially in light of the issue
regarding the written statement[.]” The State responds that the trial court’s statements
regarding the evidence were accurate and that its credibility determinations deserve
deference.
Tennessee Rule of Criminal Procedure 33(d) provides that “[t]he trial court may grant
a new trial following a verdict of guilty if it disagrees with the jury about the weight of the
evidence.” This rule “‘imposes upon a trial court judge the mandatory duty to serve as the
thirteenth juror in every criminal case,’” and makes “‘approval by the trial judge of the
jury’s verdict as the thirteenth juror . . . a necessary prerequisite to imposition of a valid
judgment.’” State v. Biggs, 218 S.W.3d 643, 653 (Tenn. Crim. App. 2006) (quoting State
v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995)). “‘[T]he trial court must weigh the evidence
and grant a new trial if the evidence preponderates against the weight of the verdict.’” Id.(quoting State v. Blanton, 926 S.W.2d 953, 958 (Tenn. Crim. App. 1996)). State v. Moats,
906 S.W.2d 431, 435 (Tenn. 1995). In determining the weight of the evidence, “‘The trial
judge does not have to view the evidence in the light most favorable to the prosecution; he
may weigh the evidence himself as if he were a juror and determine for himself the
credibility of the witnesses and the preponderance of the evidence.’” State v. Ellis, 453
S.W.3d 889, 899 (Tenn. 2015) (quoting State v. Johnson, 692 S.W.2d 412, 415 (Tenn.
1985) (Drowota, J., dissenting)). Because “[a]ppellate courts are ill-suited . . . to assess
whether the verdict is supported by the weight and credibility of the evidence . . . , the
accuracy of a trial court’s thirteenth juror determination is not a subject of appellate
review.” State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995). Although the duty is
mandatory, the trial court is not required to make an explicit statement on the record that it
has fulfilled its duty to act as thirteenth juror, and appellate courts may presume that the
trial court has approved the verdict when it overrules a motion for new trial without
comment. Biggs, 218 S.W.3d at 653 (citing Carter, 896 S.W.2d at 122; State v. Brown, 53
S.W.3d 264, 274 (Tenn. Crim. App. 2000)). Only if the record contains statements by the
trial judge indicating disagreement with the jury’s verdict or evidencing the trial judge’s
refusal to act as the thirteenth juror may an appellate court reverse the trial court’s
judgment. Carter, 896 S.W.2d at 122.
Following the instant motion for new trial hearing, the trial court stated,
First, as [thirteenth] juror, I found at the time of the trial, right after
the trial, I found that [the Defendant] had been proven guilty beyond a
reasonable doubt in my mind. There were several witnesses who saw him
walk up to the neighborhood, stood there for a while, waiting, and then when
the victim came out, they had words, walked away, came back, and then he
shot him, shot down at his feet. And then when the victim ran, he then chased
- 15 -
him around vehicles and continued to shoot. Several people saw this, people
who knew [the Defendant]. So, it’s clear—and this was not a self-defense
case. It was clear that the victim was being chased by [the Defendant] and
the witnesses who saw this were very credible witnesses.
At the time, I’m looking at this thinking, well, this is really—there’s
no controversy here. I had at first thought it was going to be self-defense or
something. But it was just really no controversy as to who he was and that
he was shooting. And because of not being able to sell drugs in that
neighborhood, things like that, children being present. So, for that reason, I
found him guilty beyond a reasonable doubt, as [thirteenth] juror, and the
State had proven its case.
The trial court went on to describe one of the witnesses:
I remember being surprised because the first witness the State called
was a prostitute. She didn’t say she was a prostitute, but she clearly was
having sex with people in the neighborhood and charging them money,
including people around there. And [the Defendant] at first came up to her
vehicle and asked her if he could have sex for her in exchange for money.
And there was an issue in the trial about whether or not he left his prints on
the car, whether his behind was keeping the door open or not. But she
discussed the sex—having the sex with him in the bathroom before for
money, and I was surprised at how she just told it like it was and was just
being very honest about the whole thing.
With respect to whether Samuels actually gave an official statement, the trial court
noted that it
[H]ad a couple of bench conferences at trial with the attorneys about
this because everyone was surprised, the State as well as the defense lawyer,
when she said that she may have made a statement. She wasn’t sure, she was
confused about the statement. She was very clear about what happened when
she saw this man killed. But after the killing, they were trying to save the
man’s life and they were trying to give him CPR and the police had not come,
even though 911 had been called. And so, they were loading him into a truck
to take him to the hospital, and when the police arrived on the scene, they
saw three people trying to load somebody in a truck as if they were
kidnapping him and they were the ones who were, at first, the suspects.
- 16 -
So, she was arrested. She was placed in a squad car, and she testified
that she’d never seen anybody—anything like that before and she was
hysterical. They took her downtown, not to take her statement, they took her
downtown because she was a suspect in a murder. And they—they—no
question they talked to her. For a while, she talked about—she really didn’t
make a whole lot of sense. Either she or a police officer testified that she
was hysterical. She’d [been] having attacks, stuff like that.
In finding that Samuels never gave a statement, or if she did, there was no proof that
it would have “any bearing” on the instant case, the trial court also commented:
So, what we have is, we have somebody. We have a person who’s
obviously not rich, not educated. They have sex with men for money in the
bathroom. And she’s hysterical at the time. She just saw a man killed that
she just talked to. And she goes to the police station because she’s a suspect
and she becomes hysterical and has asthma attacks and has no idea what
happened to her.
Based on the above statements made by the trial court, the Defendant points to the
trial court’s misstatements that Bowman was the first witness to testify, that Samuels was
the witness who testified to having sex for money, and later referring to Bowman as
Chapman as evidence of the trial court’s inability to act as thirteenth juror and therefore
depriving him of a motion for new trial. We disagree.
While Bowman was not the literal first witness to testify at trial, she was the first
witness to testify about the shooting and was the first witness to testify at the suppression
hearing. Further, we note that the trial court only referred to Bowman as Chapman after
the prosecutor realized the trial court was conflating Samuels and Bowman and corrected
it to refer to “April Chapman,” not Samuels. Unlike the first motion for new trial hearing,
the trial court never referred to facts that were untrue of the instant case, though it may
have conflated which witness was the source of those facts, despite the Defendant’s
assertions to the contrary. Although the trial court mistakenly stated Samuels was the
witness who testified to having sex for money, the trial court was otherwise accurate in its
recitation of the facts of the case. The trial court remembered that the case stemmed from
the second-degree murder, namely shooting, of Gibbs, that there were multiple
eyewitnesses to the shooting who observed the Defendant shoot Gibbs after telling him to
leave the apartment complex because there were children present, and Gibbs did not want
drugs sold at the complex. The trial court went on to accurately remember that there was
some confusion as to whether Bowman’s car was processed by law enforcement based on
testimony that the Defendant may have left fingerprints on Bowman’s car. The trial court
was also correct in noting that Bowman knew the Defendant because she previously had
- 17 -
sex with him in a bathroom in exchange for money. In determining whether Samuels gave
a statement, the trial court was also accurate in stating that police arrived as Samuels,
Chapman, and Bobo were trying to place Gibbs in a vehicle to take him to the hospital after
administering CPR, and officers had them put Gibbs back on the ground, where he died.
The trial court accurately stated that Samuels was hysterical at the police station and had
an asthma attack, so much so that police had to meet with her a couple of days later. The
trial court also correctly remembered that the Defendant called alibi witnesses, and
jailhouse calls were used to show that one of his alibi witnesses was lying under oath.
The trial court’s misstatement of a last name, order of witnesses, or stating that one
eyewitness had sex for money instead of the other eyewitness who testified to having sex
for money did not eradicate the trial court’s ability to weigh the evidence and act as
thirteenth juror, as the Defendant suggests. The trial court explicitly determined that the
eyewitnesses to the shooting were “very credible” witnesses and that the Defendant’s alibi
witnesses were “not credible[.]” This court is “ill-suited . . . to assess whether the verdict
is supported by the weight and credibility of the evidence[.]” Moats, 906 S.W.2d at 435.
After a very thorough review, there is nothing in the record on appeal or the trial record
that suggests the trial court did not fulfill its duty as thirteenth juror in weighing the
evidence and approving the verdict as part of the instant motion for new trial. The
Defendant is not entitled to relief.
II. Kenya Samuels’ Witness Statement. The Defendant argues that the trial court
erred in not declaring a mistrial or, “at a minimum[,]” striking Samuels’ testimony from
the record after the State “failed to provide [her] written statement[,]” in violation of
Tennessee Rule of Criminal Procedure 26.2. He elaborates that such statement is “of
extreme importance as far as the potential of it containing inculpatory or exculpatory
evidence.” The State responds, and we agree, that the trial court properly determined that
such a statement did not exist based on the testimony given at trial.
Rule 26.2 of the Tennessee Rules of Criminal Procedure is Tennessee’s version of
the “Jencks Act,” which was created as a result of the United States Supreme Court’s
decision in Jencks v. United States, 353 U.S. 657 (1957). The Rule provides:
After a witness other than the defendant has testified on direct examination,
the court, on motion of a party who did not call the witness, shall order the
attorney for the state or the defendant and the defendant’s attorney to
produce, for the examination and use of the moving party, any statement of
the witness that is in their possession and that relates to the subject matter of
the witness’s testimony.
- 18 -
. . . .If the party who called the witness disobeys an order to deliver a
statement, the court shall strike the witness’s testimony from the record and
order the trial to proceed. If the attorney for the state disobeys the order, the
court shall declare a mistrial if required in the interest of justice.
Tenn. R. Crim. P. 26.2(a), (d); see also Tenn. Code Ann. § 40-17-120(a). In such context,
“‘statement’ means . . . [a] written statement that the witness makes and signs, or otherwise
adopts or approves; or . . . [a] substantially verbatim, contemporaneously recorded recital
of the witness’s oral statement that is contained in a stenographic, mechanical, electrical,
or other recording or a transcription of such a statement.” Tenn. R. Crim. P. 26.2(f); see
also Tenn. Code Ann. § 40-17-120(b). “The determination of what constitutes a producible
statement is a matter that rests purely within the discretion of the trial judge and can be set
aside by the appellate courts only if his decision is clearly erroneous.” State v. Daniel, 663
S.W.2d 809, 812 (Tenn. Crim. App. 1983).
At the instant motion for new trial hearing, the Defendant asserted that Samuels
produced a written statement to police, evidenced by Samuels’ equivocal testimony that
she saw someone typing while she spoke to officers and remembered signing “something.”
He also points to the post-conviction court’s finding of fact that “there was no second
statement that the witness made[,]” suggesting that there was a first statement. The State
responded that the “one and only statement that [] Samuels ever gave was her preliminary
hearing testimony[,] which was provided to defense counsel.” The State elaborated that
Samuels’ preliminary hearing testimony was “what defense counsel was referring to in his
memory of the written statement.”
As an initial matter, we note that the Defendant’s reliance on Rule 26.2 is misplaced.
The rule requires that the State possess the statement sought by the defendant. Tenn. R.
Crim. P. 26.2(a). In the instant case, nothing in the record indicates that the State ever
actually possessed any written statement made by Samuels, other than her preliminary
hearing testimony, either through actual or constructive possession. See State v. Ronald
Wayne Gilbert, No. E2017-00396-CCA-R3-CD, 2018 WL 2411835, at *5 (Tenn. Crim.
App. May 29, 2019), perm. app. denied (Tenn. Sept. 13, 2018). Instead, the issue should
be analyzed under the guidance of State v. Merriman, 410 S.W.3d 779 (Tenn. 2013), and
State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999). Though the Defendant cites to the factors
found in Ferguson, he does nothing more than list them without any argument as to how
they should be applied in the instant case.
Ferguson governs claims regarding the State’s duty to preserve potentially
exculpatory evidence. 2 S.W.3d at 915-17. The proper inquiry is “‘[w]hether a trial,
conducted without the [lost or] destroyed evidence, would be fundamentally fair.’”
Merriman, 410 S.W.3d at 785 (alteration in original) (quoting Ferguson, 2 S.W.3d at 914).
- 19 -
When a defendant makes a Ferguson claim, the trial court first must “determine whether
the State had a duty to preserve the evidence.” Id. The State has a general duty to preserve
all evidence subject to discovery and inspection under Tennessee Rule of Criminal
Procedure 16, and other applicable law, including Brady. Id. (citing Ferguson, 2 S.W.3d at
917). “[T]he State’s duty to preserve evidence is limited to constitutionally material
evidence described as ‘evidence that might be expected to play a significant role in the
suspect's defense.’” Id. (quoting Ferguson, 2 S.W.3d at 917). To be constitutionally
material, “the evidence must potentially possess exculpatory value and be of such a nature
that the defendant would be unable to obtain comparable evidence by other reasonably
available means.” Id. (footnote omitted) (citing Ferguson, 2 S.W.3d at 915, 918). If the
proof establishes the existence of a duty to preserve and further shows that the State has
failed in that duty, the trial court must consider the following factors to determine whether
a trial without the missing evidence would be fundamentally fair: (1) the degree of
negligence implicated, (2) the significance of the destroyed evidence, considered in light
of the probative value and reliability of secondary or substitute evidence that remains
available, and (3) the sufficiency of the other evidence used at trial to support the
conviction. Id. (citing Ferguson, 2 S.W.3d at 917).
In the instant case, nothing in the record suggests that the State was ever in possession
of a written statement from Samuels. We note that “the State is not required to investigate
cases in any particular way[.]” State v. Brock, 327 S.W.3d 645, 698 (Tenn. Crim. App.
2009) (reiterating that “[d]ue process does not require the police to conduct a particular
type of investigation” and that “the reliability of the evidence gathered by the police is
tested in the crucible of a trial at which the defendant receives due process” (citation and
internal quotation marks omitted). Regarding the first materiality prong, that the evidence
must potentially possess exculpatory value, the Defendant merely theorizes that the
Samuels’ written statement would completely differ from her trial testimony and be
exculpatory. In fact, the Defendant argues in his appellate brief that the written statement
had “the potential of . . . containing inculpatory or exculpatory evidence.” See State v.
Ronnie D. Sims, No. M2004-02491-CCAR3-CD, 2005 WL 3132441, at *8 (Tenn. Crim.
App. Sept. 21, 2005) (“[T]he mere possibility of exculpatory content does not trigger a
finding that the State failed in its general duty to preserve evidence under Ferguson.”).
With respect to the second materiality prong, that the alleged exculpatory evidence be of
such a nature that the defendant would be unable to obtain comparable evidence by other
reasonable available means, the Defendant has failed to show that he would be unable to
obtain comparable evidence to the written statement. Not only did Samuels testify at the
preliminary hearing and at trial, but three other eyewitnesses, including Chapman, who was
with Samuels when the shooting occurred, also testified that they were familiar with the
Defendant and saw him shoot and kill Gibbs. Even if the written statement existed, though
the record is not indicative of such, nothing suggests that it would have exculpated the
Defendant or changed the outcome of trial.
- 20 -
With respect to the Defendant’s assertion that a jury instruction should have been
given on the potential existence of a written statement as part of the “complete charge of
the law,” we note that the Defendant never requested such special instruction in writing
and has therefore waived the issue. See Tenn. R. Crim. P. 30(a); State v. Leath, 461 S.W.3d
73, 107 (Tenn. Crim. App. 2013) (stating that the defendant’s failure to file a written
request for a special jury instruction on her “theory of defense” resulted in waiver); State
v. Mackey, 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982) (stating that Rule 30(a)
“envisions that such requests be made in writing” and that because the request for a special
instruction was not made in writing, the trial court did not err in refusing to instruct the
jury on the special instruction on intoxication). The Defendant does not request plain error
review, and we therefore decline to undertake it. The Defendant is not entitled to relief.
III. Motion to Suppress. The Defendant next asserts that the trial court erred in
denying his motion to suppress. He specifically contends that the trial court should have
suppressed the photographic lineup that the witnesses identified him through because his
photograph in the lineup was “different from the other photographs[] and designed in a
way to stand out.” The State responds that the trial properly denied the motion to suppress3
and that even a “cursory examination of the photo lineup” demonstrates that it is not
“unduly suggestive.”
When this court reviews suppression issues, the prevailing party in the trial court “‘is
entitled to the strongest legitimate view of the evidence adduced at the suppression hearing
as well as all reasonable and legitimate inferences that may be drawn from that evidence.’”
State v. Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996)). “‘Questions of credibility of the witnesses, the weight and value of
the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact.’” State v. Hawkins, 519 S.W.3d 1, 32 (Tenn. 2017) (quoting
Odom, 928 S.W.2d at 23). A trial court’s findings of fact in a suppression hearing will be
upheld, unless the evidence preponderates against them. Id. (citing State v. Bell, 429
S.W.3d 524, 528 (Tenn. 2014)). However, this court reviews the trial court’s application
of the law to the facts de novo with no presumption of correctness. Id. at 32-33 (citing
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). When evaluating the correctness of a
trial court’s ruling on a motion to suppress, this court may consider the entire record,
including not only the proof offered at the suppression hearing but also the evidence
presented at trial. State v. Echols, 382 S.W.3d 266, 277 (Tenn. 2012); State v. Williamson,
368 S.W.3d 468, 473 (Tenn. 2012). The defendant bears the burden of showing that the
3
We note that the State’s brief mistakenly refers to the trial court judge by the post-conviction court judge’s
name in its motion to suppress argument but correctly cites and attributes the trial court’s findings to the
appropriate court.
- 21 -
evidence preponderates against the trial court’s findings. Odom, 928 S.W.2d at 23;
Yeargan, 958 S.W.2d at 629.
Our analysis of this issue is guided by the United States Supreme Court holdings in
Simmons v. United States, 390 U.S. 377 (1968), and Neil v. Biggers, 409 U.S. 188 (1972),
In Simmons, the Court held that “convictions based on eyewitness identification at trial
following a pretrial identification by photograph will be set aside on that ground only if the
photographic identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.” 390 U.S. 377, 384 (1968). In
Biggers, the Court established a two-part analysis which the trial court must apply to
determine the validity of a pre-trial identification. 409 U.S. 188, 198-99 (1972). First, the
trial court must determine whether the identification procedure was unduly suggestive. Id.
at 198. Next, if the trial court determines that the identification was unduly suggestive, it
must then consider whether, under the totality of the circumstances, the identification
procedure was nonetheless reliable. Id. at 199. This court must consider the following
factors in evaluating the likelihood of misidentification:
1. the opportunity of the witness to view the criminal at the time of the crime.
2. the witness’s degree of attention at the time of the crime.
3. the accuracy of the witness’s prior description of the criminal.
4. the level of certainty demonstrated by the witness at the confrontation.
5. the length of time between the crime and the confrontation.
State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting Biggers, 409 U.S. at 199); see
State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). In Tennessee, it is
unnecessary to apply the totality of the circumstances test described in Biggers if the trial
court determines that the identification procedure was not unduly suggestive. See State v.
Biggs, 211 S.W.3d 744, 749 (Tenn. Crim. App. 2006) (citations omitted); State v. Butler,
795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).
The Tennessee Supreme Court has held that photographic lineups are admissible
unless they are unduly suggestive:
Photographs contained in a photographic array do not have to mirror the
accused. Instead, the law simply requires that the police refrain from
“suggestive identification procedures.” Neil v. Biggers, 409 U.S. 188, 93 S.
Ct. 375, 34 L. Ed. 2d 401 (1972). Thus, a photographic identification is
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admissible unless, based upon the totality of the circumstances, “the
confrontation conducted . . . was so unnecessarily suggestive and conducive
to irreparable mistaken identification that [the accused] was denied due
process of law.” Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967,
1972, 18 L. Ed. 2d 1199, 1206 (1967).
State v. Hall, 976 S.W.2d 121, 153 (Tenn. 1998). The risk of an eyewitness making an
incorrect identification is greater if the police show the eyewitness a lineup where a single
photograph “is in some way emphasized.” Simmons, 390 U.S. 377, 383 (1968). In
addition, the risk of misidentification increases “if the police indicate to the witness that
they have other evidence that one of the persons pictured committed the crime.” Id. This
Court has noted that “a lineup would be considered unduly suggestive only when the other
participants were grossly dissimilar.” State v. Edwards, 868 S.W.2d 682, 694 (Tenn. Crim.
App. 1993) (citing U.S. v. Wade, 388 U.S. 218, 233 (1967); Shye v. State, 506 S.W.2d
169, 173 (Tenn. Crim. App. 1973); Young v. State, 566 S.W.2d 895, 898 (Tenn. Crim.
App. 1978)).
In the instant case, the trial court concluded at the suppression hearing that there
was “nothing to indicate that [the witness is] supposed to pick [the Defendant] out[.]” The
court noted that although the Defendant’s picture in the photographic lineup had a “lighter
background” than the other five photographs in the lineup, all of the men depicted in the
photographs had similar “facial features[.]” The trial court elaborated that although the
photograph was “a little suggestive[,]” it was “just the exposure of the photograph.” The
trial court went on to explicitly consider each factor set forth by the Supreme Court in
Biggers, 409 U.S. at 199. Regarding the first factor, the trial court determined that both
witnesses who testified at the suppression hearing, Bowman and Bobo, had “great
opportunity to identify [the Defendant], they saw and recognized him. One of them talked
with him before the shooting[,] and the other one is his cousin and has known him for
years.” With respect to the second factor, the trial court found that “the degree of attention
of both of them is high[.]” For the third factor, the trial court noted that Bowman “said that
she described him[,]” and Bobo said, “[‘]I told them who it was[’] because[] he knew who
it was.” For the fourth factor, with respect to the witnesses’ level of certainty demonstrated
at the confrontation, the trial court noted that both Bowman and Bobo were “absolutely
certain” in their identification of the Defendant from the photographic lineup. Finally, the
trial court noted that Bowman’s and Bobo’s identification of the Defendant occurred
“immediately thereafter, that same night.” Following the consideration of all five factors,
the trial court found that although the “exposure on [the Defendant’s photograph [wa]s
lighter” than that of the other five, there was “no indication that he is the person[,]” and
Bowman and Bobo were “identifying him in court [], not from a photograph that they were
shown of him[] but from actually seeing him that night.”
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Based on our review of the record, we agree with the trial court and conclude that
there was nothing unduly suggestive about the photographic lineup. The photographic
lineup contains photographs of six African American males, all of whom had short, dark
hair and similar facial hair. Each photograph is uniform in size. All of the men depicted
in the photographs have white collars near their necks. Further, as noted by the trial court,
both Bowman and Bobo were previously familiar with the Defendant and interacted with
him just prior to the shooting. We agree with the trial court’s finding that Bowman’s and
Bobo’s identifications of the Defendant were reliable based on the Biggers factors, 409
U.S. at 199. Both Bowman and Bobo were completely certain that the Defendant was the
person who shot Gibbs and were immediately able to identify him in the photographic
lineup. We are unable to conclude that the Defendant’s photograph was “grossly
dissimilar” to the others. Edwards, 868 S.W.2d at 694. Accordingly, the trial court did not
err in denying the Defendant’s motion to suppress, and the Defendant is not entitled to
relief.
IV. Jailhouse Calls. The Defendant argues that a portion of the jailhouse phone call
that was admitted for the narrow purpose of impeaching Mitchell’s credibility should have
been redacted. Specifically, he argues that the Defendant’s statement during the call that
“I ain’t seen him that n*****. I been seeing a white boy” violated Tennessee Rule of
Evidence 403 in that it “could prejudice the jurors and give them irrelevant information”
because the “language sounds as if [the Defendant] is either involved in illegal activity like
drugs[] or homosexual activity[.]” He also argues that the use of the jailhouse calls for
impeachment purposes violated his right against self-incrimination and right not to testify.
The State responds that the trial court properly allowed the jury to consider the jailhouse
call for the “limited purpose of measuring [] Mitchell’s credibility” and that “nothing
suggests that the [D]efendant was coerced or compelled” to call Mitchell. The State further
responds that the Defendant did not object “to the language now considered by him to be
prejudicial[] or request that it be redacted” and has therefore waived the issue.
“Generally, the admissibility of evidence rests within the trial court’s sound
discretion, and the appellate court does not interfere with the exercise of that discretion
unless a clear abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d 799,
809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial court
is found to have abused its discretion when it applies “an incorrect legal standard or reaches
a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Lewis, 235 S.W.3d at 141 (quoting State v. Ruiz, 204 S.W.3d 772, 778
(Tenn. 2006)). “[T]he modern trend is to vest more discretion in the trial judge’s rulings
on admissibility.” State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000).
Evidence is considered relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
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than it would be without the evidence.” Tenn. R. Evid. 401. Evidence which is not
determined to be relevant is inadmissible. Tenn. R. Evid. 402. In addition, “[a]lthough
relevant, evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Tenn. R. Evid. 403. Unfair prejudice has been defined as “‘[a]n undue tendency
to suggest decision on an improper basis, commonly, though not necessarily an emotional
one.’” State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403,
Advisory Comm. Notes). “Prejudice becomes unfair when the primary purpose of the
evidence at issue is to elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or
horror.’” State v. Young, 196 S.W.3d 85, 106 (Tenn. 2006) (citations and internal
quotation marks omitted).
Extrinsic evidence of a prior inconsistent statement is admissible if certain
procedures are followed, though such procedures are unnecessary when the inconsistent
statement is also an admission by a party opponent covered by Tennessee Rule of Evidence
803(1.2). See Tenn. R. Evid. 613(b). If extrinsic evidence of a prior inconsistent statement
is utilized, the trial court has the discretion to screen the evidence and pare the statement
outside the presence of the jury. See Neil P. Cohen, et al., Tennessee Law of Evidence,
6.13[5][f] (6th ed. 2011).
The Fifth Amendment to the United States Constitution, applicable to the states
through the Fourteenth Amendment, states that “[n]o person ... shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. Similarly, the
Tennessee Constitution states “that in all criminal prosecutions, the accused ... shall not be
compelled to give evidence against himself.” Tenn. Const. art. I, § 9. Both the Fifth
Amendment and article I, section 9 provide the criminally accused the right against
compelled self-incrimination. State v. Callahan, 979 S.W.2d 577, 581 (Tenn. 1998).
In the instant case, the recorded jailhouse call between Mitchell and the Defendant
was used to impeach Mitchell’s testimony regarding the Defendant’s alibi from the day of
the shooting after she stated that she “c[ould]n’t recall” whether she had a conversation
with the Defendant about “getting [their] stories straight” on July 5, 2009. The call
demonstrated that Mitchell and the Defendant had in fact discussed what Mitchell and the
rest of the Defendant’s alibi witnesses needed to testify to at trial, including what clothing
he was wearing. After the recording was played for the jury, Mitchell was given the
opportunity to explain the conversation and said that the Defendant was “refreshing [her]
memory” rather than instructing her what to say. She further explained that she was
testifying from her own memory. The trial court gave a curative instruction to the jury that
the call was to be used only for the limited purpose of impeaching Mitchell and determining
her credibility and noted that the court was not admitting the jailhouse call as an exhibit.
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The call was placed by the Defendant to Mitchell, and there is nothing in the record to
suggest that he was “compelled” to place the call or to speak with his sister. Further, we
note that before the portion of the jailhouse call was played for the jury, the trial court held
a jury-out hearing to determine which portions were appropriate to be played for the jury,
and the Defendant did not object to the portion he now claims to be prejudicial and
irrelevant. Whether or not the Defendant’s statement, “I ain’t seen him that n*****. I been
seeing a white boy” was relevant, we cannot conclude that such a fleeting reference to what
the Defendant refers to as “illegal activity like selling drugs[] or homosexual activity” was
unfairly prejudicial to the Defendant, especially given the trial court’s curative instruction
and the overwhelming evidence of the Defendant’s guilt presented by four eyewitnesses to
the shooting. We further cannot conclude that any potential error in allowing the contested
portion of the jailhouse call resulted in anything other than harmless error. See State v.
Cannon, 254 S.W.3d 287, 298-99 (Tenn. 2008) (“We apply a harmless error analysis to
‘virtually all evidentiary errors . . . .’”) (quoting State v. James, 81 S.W.3d 751, 763 (Tenn.
2002); see also 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.”). The Defendant is not entitled to relief.
V. Testimony Regarding Presence of Children. The Defendant next contends that
the trial court erred in allowing Bobo to testify that “the victim’s children were home at the
time of the shooting.” He asserts that such testimony created prejudice against the
Defendant and violated Tennessee Rules of Evidence 402 and 403. The State responds
that the testimony was both relevant and not prejudicial.
The admissibility of evidence rests within the trial court’s sound discretion, and this
court will not overturn a trial court's decision regarding the admissibility of the evidence
absent an abuse of that discretion. State v. Clayton, 535 S.W.3d 829, 859 (Tenn. 2017). A
trial court is found to have abused its discretion when it “applies an incorrect legal standard
or reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Lewis, 235 S.W.3d 136, 141 (quoting Ruiz, 204 S.W.3d at 778).
As previously laid out, evidence is considered relevant if it has “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 determined to be relevant is inadmissible. Tenn. R. Evid. 402. In
addition, “[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Tenn. R. Evid. 403. Unfair prejudice has been
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defined as “‘[a]n undue tendency to suggest decision on an improper basis, commonly,
though not necessarily an emotional one.’” Banks, 564 S.W.2d at 951.
In the instant case, Bobo was asked on cross-examination whether Gibbs’ children
were “there” on “the night of December 23, 2007,” to which he responded, “Yes.” Trial
counsel objected based on relevance, and the trial court held a bench conference. The trial
court asked the State what the relevance was regarding the children’s presence, and the
State responded that their presence was “one of the reasons [Gibbs] asked the [D]efendant
to leave.” The trial court responded that although Bobo did not have “personal knowledge”
regarding why the Gibbs “didn’t want trouble,” the presence of the children, though “not
that relevant[,]” was “not prejudicial[.]” The trial court also cautioned the State against
any “hearsay comments about the victim.” No further testimony was given regarding the
presence of children.
We agree with the State’s assertion that Bobo’s testimony regarding the presence of
Gibbs’ children was relevant to show why Gibbs approached the Defendant in the first
place and wanted him to leave the apartment complex, initiating the interaction that
culminated in Gibbs’ death. We also agree that the sparse testimony regarding the children,
which was limited to Bobo stating their ages and responding, “Yes,” when asked if they
were at the complex on the night of the shooting, was not prejudicial to the Defendant.
Given the otherwise overwhelming proof stemming from four eyewitnesses to the
shooting, any error in admitting Bobo’s testimony regarding the presence of children was
harmless. See Cannon, 254 S.W.3d at 298-99 (“We apply a harmless error analysis to
‘virtually all evidentiary errors . . . .’”) (quoting James, 81 S.W.3d at 763; see also 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.”). The Defendant is not entitled to relief.
VI. Cumulative Error. The Defendant argues, and the State disagrees, that he is
entitled to relief under the cumulative error doctrine. The cumulative error doctrine
provides, in short, as follows:
The cumulative error doctrine is a judicial recognition that there may be
multiple errors committed in trial proceedings, each of which in isolation
constitutes mere harmless error, but which when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in order
to preserve a defendant’s right to a fair trial.
State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (citations omitted). Because we have
determined that the trial court did not err on any of the Defendant’s aforementioned issues,
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we need not consider the cumulative effect of the alleged errors. Hester, 324 S.W.3d at 77(“To warrant assessment under the cumulative error doctrine, there must have been more
than one actual error committed in the trial proceedings.”).
CONCLUSION
Based upon the above reasoning and analysis, we affirm the judgment of the trial
court.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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