State of Tennessee v. Kevion McDonald

04/28/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 2, 2021 Session
STATE OF TENNESSEE v. KEVION MCDONALD
Appeal from the Criminal Court for Shelby County
Nos. 19-01855, C1902568 James M. Lammey, Judge
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No. W2020-00127-CCA-R3-CD
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Kevion McDonald, Defendant, was indicted by the Shelby County Grand Jury for one
count of attempted first degree murder resulting in serious bodily injury and one count of
employing a firearm during the commission of a dangerous felony. After a jury trial,
Defendant was convicted of both counts as charged in the indictment. The trial court
sentenced Defendant to an effective sentence of thirty-one years. The trial court denied a
motion for new trial. Defendant initiated this appeal, arguing that the trial court: (1)
improperly admitted a photographic lineup into evidence; (2) committed plain error by
failing to instruct the jury on the definition of premeditation; and (3) improperly sentenced
Defendant to twenty-five years in incarceration for attempted first degree murder resulting
in serious bodily injury. Defendant also challenges the sufficiency of the convicting
evidence at trial. After a thorough review of the record, we determine that the trial court
erred by failing to instruct the jury with the definition of premeditation, an element of the
offense of attempted first degree murder. However, we find the error harmless because the
proof of premeditation was overwhelming. As a result, the judgments of the trial court are
affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and J. ROSS DYER, JJ., joined.
Brett B. Stein and Robert Golder (at trial), and Lance Chism (on appeal), Memphis,
Tennessee, for the appellant, Kevion McDonald.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Wierich, District Attorney General; and Justin Prescott and
Shelby Patrick, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
Defendant was indicted by a Shelby County Grand Jury in March of 2019 for
attempted first degree murder and employing a firearm during a dangerous felony. The
initial indictment named Deleon Morehead as the victim. In August of 2019, the trial court
granted an oral motion to amend the indictment, changing the victim to Carlos Smith.
Defendant did not object to the amendment and does not raise any issue with regard to the
validity of the indictment on appeal.
At trial, the victim testified that Defendant worked for him, remodeling houses and
apartment complexes. Defendant had worked for the victim for about three months prior
to the incident. They were “fairly close” as friends. The victim even called Defendant his
“[G]odson.”
The day before the incident, Defendant and the victim worked together all day
before picking up their paychecks. The victim gave Defendant a ride to cash his check.
The victim made a deposit while he was at the bank.
Later that night, around 11:00 p.m. or 12:00 a.m., Defendant came by the victim’s
house. According to the victim, Defendant was accompanied by two other men. The
victim had never met these men before. The three men, including Defendant, came into
the victim’s house and stayed “[f]or a couple of hours,” smoking marijuana. The victim
explained that Defendant left the house at one point to go buy cigarettes at the store. The
other two men stayed with the victim. While Defendant was gone, they discussed work
and asked the victim what he was going to be doing the next day.
Defendant eventually returned to the victim’s house, and the men resumed their
conversation “about what [they] were going to do the next day at work.” The victim
explained that they were “just talking” and he “got up to go to the door” when Defendant
“pulled out a gun” and asked him “bitch, where the shit at?” The victim thought Defendant
was robbing him. The victim “flinched” and “leaned toward [the gun and] held [his] hand
out.” Defendant shot the victim twice in the right hand. The victim instinctively bent down
and held his injured hand. Defendant then shot him in the right side at the head and again
in the right leg. The victim fell to the floor and began to pray. The victim saw the men get
up and head out the door before Defendant “turned back around, and he fired a couple of
more shots.” The victim thought that he was hit by the shots but did not know where on
his body he was hit.
When Defendant and the other men left, the victim tried to get up. He attempted to
open the door with his injured hand but the hand “just went backwards” and he was unable
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to turn the doorknob. The victim explained that he prayed, asking God to save him. The
victim eventually was able to open the door with his feet. Once the door was open, he was
able to walk to his neighbor’s house. He kicked on the door and asked for help.
The neighbor came to the door and the victim explained that he had been shot. The
neighbor ran to get her husband. The victim asked the neighbor to pray with him. As they
prayed, a car pulled up in the driveway. Defendant recognized it as the car Defendant
“used to drive all the time.” Someone got out of the car, approached the victim, and asked
him if he was ok. The victim told the man who got out of the car that an ambulance was
coming. The victim looked up and saw Defendant getting out of the car. Defendant “fired
two more shots,” from the driveway, about 70 or 80 feet away, again striking the victim in
the head.
The next thing the victim recalled was waking up in the hospital. His right hand
had been amputated, and his left side was paralyzed as a result of the injuries he received
from the gunshots. Additionally, he had a “substantial scar” on his head. The victim spoke
with police two times while he was in the hospital. The first time the victim spoke with
police, he told them that Defendant was the person who shot him. The second time, the
police officer brought a recorder and a photographic lineup. The victim explained that
there were pictures of a “bunch” of people and he thought Defendant was “number three.”
During his testimony, the victim was shown a copy of a photographic lineup and he
confirmed that it was the same lineup he was shown at the hospital. However, the victim
admitted that the handwriting on the photograph did not belong to him because he was
unable to write.
Deleon Morehead was the victim’s neighbor on Meadow Valley Drive East. He
recalled the incident, explaining that he heard a knock on his door and a voice asking for
help at around 2:30 or 3:00 a.m. on October 4, 2017. He saw “a man standing there
saturated in blood.” Though Mr. Morehead did not recognize the victim, his fiancée
recognized the injured man and called 911. Mr. Morehead told the victim to “hang tight”
and closed the door slightly while he went back into the house to go to the bathroom. When
he stepped away from the door, he heard a “pop” that “sounded like a gunshot.” Mr.
Morehead’s fiancée called 911 for a second time. When the police arrived, the victim was
lying on the ground praying.
Officer Lacquitta Armstrong of the Memphis Police Department was the first officer
on the scene on October 4, 2017. The officer located the victim on the front porch of
Deleon Morehead. She asked the victim who was responsible for his injuries. She
explained that it was difficult to understand the victim “[b]ecause he had been shot” but
that he said, “Kevon, Kevion or something like that.” Officer Armstrong stated that the
victim’s “thumb was shot off,” his “face was shot,” and “his guts and everything was on
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the . . . front door.” The encounter was captured on Officer Armstrong’s body camera and
a portion of the footage was replayed for the jury. In the recording, the victim appears
conscious and can be heard moaning and speaking to the officer. The victim is able to
identify himself and also identifies Defendant by first name as the shooter.
Officer Derek Blake also responded to the scene. He went into the victim’s house
where he saw “blood inside the doorway.” The house was full of smoke and three shell
casings were recovered from inside the house. The three shell casings were identified as
“.380 auto casings” by Officer Marcus Mosby of the Crime Scene Investigation Unit.
Officer Blake also saw blood on the porch of the neighbor’s house across the street.
During the investigation of the shooting, Lieutenant Derrick Williams received
information that led him to begin searching for a person named Kevon or Kevin. At that
time, the victim was in “extremely critical condition” and unable to speak to officers. The
victim’s family, however, was able to tell officers that the victim had a friend named
“Kevion.” Even with the name, officers were initially unable to come up with an identity.
Once the victim was awake and conscious, approximately thirty-nine to forty days after the
incident, he was able to identify Defendant as the shooter.
Lieutenant Williams found a photograph of Defendant and prepared a photographic
lineup including that photograph. When the photographic lineup was prepared, the victim
was in “isolation” in the ICU at Regional One hospital. Lieutenant Williams explained
that he had to “put on [a] fire hazard gown, mask, [and] gloves” before entering the victim’s
room and had to “discard” anything that was taken into the room. Lieutenant Williams
“made two photo spreads” that were identical and “asked the nurse” to “stand at the door
and listen to what the victim would say while [the officer] went in to the room and showed
[the victim] the spread, because the photo spread . . . would have to be discarded” when
the officer left the room. Additionally, the victim was not able to write on the spread “due
to his injuries.” Lieutenant Williams identified the photo spread and the nurse’s
handwriting. Counsel for Defendant objected to its admission based on “chain of custody.”
The trial court overruled the objection and the photographic lineup was admitted into
evidence. Lieutenant Williams confirmed that when he showed the lineup to the victim,
the victim identified photograph number three as Defendant.
Defendant testified that he was 23 years of age at the time of trial. At the time of
the incident, he was 20 years old. He worked with the victim at Cambridge Station doing
maintenance work. Melody Jaramillo was the manager of the apartments. The victim and
Defendant had worked together for about three months. Defendant called the victim
“[P]ops” and the victim called him “Godson.” They were fairly close, and went out to eat
at Denny’s and IHOP on occasion. Defendant got off work around 4:00 p.m. on the day
prior to the incident and went to the victim’s house for about an hour. From there,
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Defendant went to a few other places, including the home of Ms. Jaramillo, where he hung
out with her son. Eventually, Defendant ended up back at the victim’s house at around
“12, 12:10ish” in the morning. Defendant texted the victim to let him know he was outside.
According to Defendant, the victim met him outside because he “had company.”
Defendant and the victim sat in the car and “[s]moked marijuana and cigarettes” and drank
for “about 45 minutes” before Defendant left around 12:40-12:45 a.m. Defendant went
home.
The next morning, Defendant did not hear from the victim. He thought this was
strange because the victim was his “ride” to work and it was strange that he did not call or
show up “without an explanation.” Ms. Jaramillo showed up at his house around 10:00
a.m. She told Defendant that the victim had been shot and asked him if he was going to
work. Defendant did not want to go to work after he found out that the victim had been
shot.
Defendant was contacted by the victim’s relatives after the incident. He “answered
all the questions that they asked [him]” about the victim.
Defendant’s mother, Demetria Scurlock, testified that Defendant lived with her.
Defendant came home after work on the night prior to the incident but she did not know
what he did the remainder of the evening after she went to bed around 10:00 p.m. Ms.
Scurlock got up at around 5:30 a.m. the next morning. When she got up in the morning,
the house was quiet and Defendant was asleep in his bedroom.
At the conclusion of the trial, the jury found Defendant guilty of attempted first
degree murder resulting in serious bodily injury and employing a firearm during the
commission of a dangerous felony. After a sentencing hearing, the trial court sentenced
Defendant to twenty-five years for attempted first degree murder resulting in serious bodily
injury and six years for employing a firearm during the commission of a dangerous felony.
The trial court ordered the sentences to be served consecutively, for a total effective
sentence of thirty-one years.
Defendant filed a motion for new trial and supplemental motion for new trial in
which he challenged the sufficiency of the evidence, the admission of the photographic
lineup, his sentence, and the denial of his pretrial motions. The trial court denied the
motion for new trial and this appeal followed.
Analysis
Jury Instructions
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Defendant argues that the trial court erred by failing to define premeditation during
the jury instructions on attempted first degree murder. Defendant admits that trial counsel
failed to object to the instructions at trial and failed to raise the issue in a motion for new
trial. However, Defendant submits that the trial court’s failure to properly instruct the jury
is “plain error” because the trial court failed to instruct the jury on an element of the offense.
The State, on the other hand, argues that there was no clear and unequivocal rule of law
breached because there are no statutes or cases in Tennessee considering whether the
failure of a trial court to specifically define premeditation during the jury instructions
constitute reversible error.
Defendant does not dispute that he failed to object to the jury instructions at trial.
Moreover, Defendant acknowledges that he failed to raise the jury instruction issue in his
motion for new trial. See Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue
presented for review shall be predicated upon error in . . . jury instructions granted or
refused . . . unless the same was specifically stated in a motion for a new trial[.]”); State v.
Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (holding that failure to object to erroneous
definitions of intentionally and knowingly did not waive error but failure to include issue
in motion for new trial did).
Tennessee Rule of Appellate Procedure 36(b) states: “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.” Because Defendant failed to object at trial and failed to include the issue in his
motion for new trial, we are limited to reviewing the issue for plain error. See Tenn. R.
App. P. 36(b) (“When necessary to do substantial justice, an appellate court may consider
an error that has affected the substantial rights of a party at any time, even though the error
was not raised in the motion for a new trial or assigned as error on appeal.”); Faulkner, 154
S.W.3d at 58. Issues not raised in the trial court may be reviewed in the discretion of the
appellate court for plain error when these five factors are established: (a) the record clearly
establishes what occurred in the trial court; (b) a clear and unequivocal rule of law was
breached; (c) a substantial right of the accused was adversely affected; (d) the defendant
did not waive the issue for tactical reasons; and (e) consideration of the error is necessary
to do substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016); State v. Smith,
24 S.W.3d 274, 282 (Tenn. 2000).
The record is clear what happened in the trial court. The trial court instructed the
jury that Defendant was charged with attempted first degree murder resulting in serious
bodily injury. The instruction given was as follows:
Any person who attempts to commit [f]irst [d]egree [m]urder where the
victim suffers serious bodily injury is guilty of a crime.
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For you to find a person guilty of this offense, the [S]tate must have proven
beyond a reasonable doubt the existence of the following essential elements:
(1) That the defendant intended to commit [f]irst [d]egree [m]urder;
and
(2) That the defendant did some act intending to cause an essential
element of [f]irst [d]egree [m]urder to occur, and at the same time
believed the act would cause the element to occur without further
action on the defendant’s part;
and
(3) That the victim suffered serious bodily injury.
The essential elements necessary to constitute [f]irst [d]egree [m]urder are:
(1) That the defendant unlawfully killed the alleged victim;
and
(2) That the defendant acted intentionally. A person acts intentionally
when it is the person’s conscious objective or desire to cause the
death of the alleged victim;
and
(3) That the killing was premeditated.
Next, we must determine if a clear and unequivocal rule of law was breached. The
State insists that a clear and unequivocal rule of law was not breached, pointing to the fact
that there is no Tennessee case on point. The State cites cases from several other
jurisdictions including Kansas v. Patton, 102 P.3d 1195, 1199-1200 (Kan. Ct. App. 2004),
People v. Bodley, 195 N.W.2d 803, 805-06 (Mich. Ct. App. 1972), Mitchell v. Texas, 365
S.W.2d 804, 806 (Tex. Crim. App. 1963), and Burcham v. State, 338 So. 2d 1138, 1141
(Fla. 2d Dist. App 1976), to support their argument that a trial court is not required to give
a specific definition of premeditation. The State argues that “lack of specific language in
our statutes or case law” and “lack of uniformity in the decisions rendered in other
jurisdictions” support the conclusion that a clear and unequivocal rule of law was not
breached and that Defendant is therefore not entitled to plain error review.
Defendant, on the other hand, argues that because the trial court failed to define
premeditation, the jury did not receive an instruction on each element of the offense.
Defendant acknowledges that there are no Tennessee cases exactly on point and that there
seems to be a split among authority in other jurisdictions that have addressed the issue.
Defendant cites Anderson v. State, 276 So. 2d 17, 19 (Fla. 1973), and People v. Milton, 265
N.W.2d 397, 399 (Mich. Ct. App. 1978), to support his position. Despite a lack of clear
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direction from a Tennessee court, Defendant insists that a clear and unequivocal rule of
law was broken because the trial court failed to instruct the jury on all the elements of the
offense of attempted first degree murder.
The United States Constitution and the Tennessee state constitution guarantee
criminal defendants the right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. I, §
6 (providing “that the right of trial by jury shall remain inviolate”). This right includes an
entitlement to a correct and complete charge of the law. State v. Page, 184 S.W.3d 223,
229 (Tenn. 2006) (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). “Any omission
in the instructions in reference to an element of the offense which might lessen the burden
of proof placed upon the state is constitutional error and requires a new trial unless the
error is harmless beyond a reasonable doubt.” State v. Hill, 118 S.W.3d 380, 385 (Tenn.
Crim. App. 2002) (citing State v. Walker, 29 S.W.3d 885, 893-94 (Tenn. Crim. App.
1999)). “Jury instructions must be reviewed in their entirety.” State v. Rimmer, 250
S.W.3d 12, 31 (Tenn. 2008) (citing State v. Guy, 165 S.W.3d 651, 659 (Tenn. Crim. App.
2004)). Whether the trial court properly instructed the jury on a certain offense is a mixed
question of law and fact, which this Court reviews de novo with no presumption of
correctness. State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016) (citing State v. Thorpe,
463 S.W.3d 851, 859 (Tenn. 2015)).
Trial courts have a duty to “instruct the jury on the general principles of law
applicable to the facts of the case,” which includes defining every element of the offense
charged. State v. Clark, 452 S.W.3d 268, 294-95 (Tenn. 2014). “The words defining [an]
offense . . . have a technical meaning and it is the trial court’s duty to give such meaning
to the jury in the charge and not merely to use the language of the statute” listing the
elements of the offense. Teel, 793 S.W.2d at 249. Premeditation is an element of attempted
first degree murder. See T.C.A. §§ 39-12-101, 39-13-202(a)(1); State v. Banks, 271
S.W.3d 90, 138-39 (Tenn. 2008). Premeditation is defined in Tennessee Code Annotated
section 39-13-202(d) as:
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 necessary that the purpose to kill preexist 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.
We conclude that failure to give the jury the definition of premeditation was error.
We must now determine if the error was harmless. “[W]here a reviewing court concludes
beyond a reasonable doubt that the omitted element was uncontested and supported by
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overwhelming evidence, such that the jury verdict would have been the same absent the
error, the erroneous instruction is properly found to be harmless.” Neder v. United States,
527 U.S. 1, 17 (1999). We are required to consider a particular instruction in the context
of the trial court’s charge as a whole. Clark, 452 S.W.3d at 295. “When a challenged
instruction was so erroneous that the instruction alone infected the entire trial and resulted
in a conviction that violates due process, or when the judge’s charge, taken as a whole,
failed to fairly submit the legal issues or misled the jury as to the applicable law, such
deficiencies are prejudicial error that require reversal.” Id. (internal citations omitted). The
proper inquiry is not whether a guilty verdict would surely have been rendered in a trial
without the error, but instead whether the guilty verdict rendered in the trial “was surely
unattributable to error.” State v. Hollis, 342 S.W.3d 43, 52 (Tenn. Crim. App. 2011)
(internal quotations and citations omitted).
For guidance, we consider that this Court has affirmed a conviction where the trial
court gave an additional instruction on premeditation which expanded the instruction rather
than, as here, omitting the definition of premeditation entirely. See State v. Vernon Motley,
No. W2010-01989-CCA-R3-CD, 2012 WL 1080479, at *5-6 (Tenn. Crim. App. Mar. 29,
2012), perm. app. denied (Tenn. Aug. 16, 2012); cf. Hollis, 342 S.W.3d at 52; State v.
Kenneth Spencer, No. W2010-02455-CCA-R3-CD, 2011 WL 6147012, at *13 (Tenn.
Crim .App. Dec. 8, 2011), no perm. app. filed; State v. Elgie Sykes, No. W2009-02296-
CCA-R3-CD, 2011 WL 2732660, at *8 (Tenn. Crim. App. July 14, 2011), no perm. app.
filed (remanding all three cases for a new trial, concluding that although sufficient evidence
of premeditation, error was not harmless beyond a reasonable doubt).
In Vernon Motley, the trial court gave the jury an expanded instruction on
premeditation during which the trial court listed factors that were indicative of
premeditation. Id. at *5. On appeal, this Court determined that the trial court’s instruction
was not only incomplete, but constituted an impermissible comment on the evidence and
was error. Id. This Court concluded that the error was harmless in light of the
“overwhelming” proof of premeditation and that the verdict was “surely unattributable” to
the erroneous instruction. Id.
Under the narrow facts of this case, we determine below in our discussion on
sufficiency of the evidence that there was overwhelming proof of premeditation.
Defendant used a deadly weapon on an unarmed victim, inflicted multiple gunshot wounds,
returned to shoot at victim a second time and failed to render aid to the victim. See State
v. Kiser, 284 S.W.3d 227, 268 (Tenn. 2009); State v. Leach, 148 S.W.3d 42, 53-54 (Tenn.
2004); State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003); State v. Bland, 958 S.W.2d
651, 660 (Tenn. 1997); State v. Larkin, 443 S.W.3d 751, 815-16 (Tenn. Crim. App. 2013).
Because of the overwhelming proof of premeditation, we cannot say that the guilty verdict
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was “surely attributable to the error” of the failure of the trial court to instruct the jury on
the definition of premeditation. Hollis, 342 S.W.3d at 52. Therefore, the error is harmless.
Because we have determined that the error was harmless, consideration of the error
is not necessary to do substantial justice. Because we are reviewing the issue for plain
error, Defendant “bears the burden of persuading the appellate court . . . that the error was
of sufficient magnitude that it probably changed the outcome of the trial.” Martin, 505
S.W.3d at 505. Defendant has failed to do so. As a result, he is not entitled to plain error
relief.
Admissibility of Photographic Lineup
Defendant argues that the trial court abused its discretion in admitting the
photographic lineup into evidence because it was an unauthenticated replica and not the
actual photographic lineup the victim viewed at the hospital. Moreover, Defendant insists
that the error was not harmless because Defendant’s identity was “hotly contested” by the
defense. The State disagrees.
During trial, the victim testified that he met with the police twice after he was shot.
The first time, he told police Defendant’s name. On the second visit, the victim was in
isolation in the ICU but was able to identify Defendant from a photographic lineup. The
victim was shown a copy of the photographic lineup at trial and confirmed that it was
identical to the lineup he was shown at the hospital. He admitted that the writing on the
photographic lineup was not his handwriting but explained that he was unable to write on
the photograph because his “left side [wa]s paralyzed, and [his] right hand [had been]
amputated.”
Similarly, Lieutenant Williams testified that he interviewed the victim at the
hospital. During the first interview, about 40 days after the shooting, the victim identified
Defendant by name. Lieutenant Williams put together a photographic lineup that included
Defendant’s picture and returned to the hospital. Lieutenant Williams explained that
because Defendant was in isolation, visitors had to wear special clothing into the hospital
room and that anything taken into the room had to be destroyed. Because he knew the
photographic lineup taken into the hospital room would be destroyed, Lieutenant Williams
prepared two identical photographic lineups. He presented one to a nurse who stood
outside the door of the isolation unit. He presented the other one to the victim. As the
victim identified the person who shot him as “number three,” the nurse indicated as such
on the copy she held outside the isolation room. At trial, Lieutenant Williams testified that
the photographic lineup was an exact copy of the one viewed by the victim at the hospital.
Counsel for Defendant objected to its admission, but the trial court overruled the objection.
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Tennessee Rule of Evidence 901 provides that “[t]he requirement of authentication
or identification as a condition precedent to admissibility is satisfied by evidence sufficient
to the court to support a finding by the trier of fact that the matter in question is what its
proponent claims.” Tenn. R. Evid. 901(a). “Authentication can be properly established by
the testimony of a witness with knowledge that the ‘matter is what it is claimed to be.’”
State v. Mickens, 123 S.W.3d 355, 376 (Tenn. Crim. App. 2003) (citing Tenn. R. Evid.
901(b)(1)). The trial court is considered the “arbiter of authentication issues,” and, a ruling
on an authentication issue will not be disturbed absent a showing that the court clearly
abused its discretion. See Tenn. R. Evid. 901, Advisory Comm’n Cmts.; Mickens, 123
S.W.3d at 376. A trial court abuses its discretion 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),
overruled on other grounds by State v. Patterson, 564 S.W.3d 423, 433 (Tenn. 2018); see
State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
Defendant argues that because Lieutenant Williams did not write on the
photographic lineup, he could not authenticate the lineup. That is not what the rule
requires. To be sure, Rule 901 provides that authentication may be made by the testimony
of a witness with knowledge that “a matter is what it is claimed to be.” Tenn. R. Evid.
901(b)(1). In this case, Lieutenant Williams importantly testified that he prepared two
identical photographic lineups prior to presenting one lineup to the victim and one lineup
to the nurse who observed the identification and that the photographic lineup being offered
into evidence was identical to the one viewed by Defendant. Moreover, the victim
identified the photographic lineup at trial as the lineup that he viewed at the hospital. In
our view, the photographic lineup admitted into evidence at trial was sufficiently
authenticated to support a finding by the trial court that it was an accurate copy of the
photographic lineup actually viewed by the victim at the hospital. The trial court did not
abuse its discretion. Defendant is not entitled to relief on this issue.
Sufficiency
Defendant challenges the sufficiency of the evidence to support his convictions for
attempted first degree murder with serious bodily injury and employing a firearm during
the commission of a dangerous felony. Specifically, Defendant argues that his identity was
not proven and that the State failed to establish that he acted with premeditation. Again,
the State disagrees.
When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
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443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247,
277 (Tenn. 2002). “A guilty verdict by the jury, approved by the trial court, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the
prosecution’s theory.” Id. (quoting Bland, 958 S.W.2d at 659). Therefore, the prosecution
is entitled to the “strongest legitimate view of the evidence and to all reasonable and
legitimate inferences that may be drawn therefrom.” State v. Goodwin, 143 S.W.3d 771,
775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions
concerning the “credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact.”
State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008)). It is not the role of this Court to reweigh or reevaluate the
evidence, nor to substitute our own inferences for those drawn from the evidence by the
trier of fact. Id. The standard of review is the same whether the conviction is based upon
direct evidence, circumstantial evidence, or a combination of the two. State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
A. Attempted First Degree Murder with Serious Bodily Injury
In order to convict Defendant of attempted first degree murder with serious bodily
injury, the State had to prove that Defendant acted “with the kind of culpability otherwise
required for the offense . . . [and] [a]ct[ed] with intent to cause a result that is an element
of the offense, and believe[d] the conduct w[ould] cause the result without further conduct
on the person’s part[.]” T.C.A. § 39-12-101(a)(2). Relevant to this case, first degree
murder is the unlawful, intentional, and premeditated killing of another. T.C.A. § 39-13-
202(a)(1). While serious bodily injury is not an element of attempted first degree murder,
when a victim of attempted first degree murder suffers serious bodily injury as a result of
the crime, a defendant must serve a minimum of 85% of his sentence. T.C.A. § 40-35-
501(k)(5). “Serious bodily injury” includes bodily injury that involves: (A) a substantial
risk of death; (B) protracted unconsciousness; (C) extreme physical pain; (D) protracted or
obvious disfigurement; (E) protracted loss or substantial impairment of function of a bodily
member, organ or mental faculty . . . . T.C.A. § 39-11-106(a)(36). “Protracted” means
“delayed or prolonged in time.” State v Ronald L. Carroll, No. E2013-01781-CCA-R3-
CD, 2014 WL 1759101, at *5 (Tenn. Crim. App. Apr. 30, 3014), perm. app. denied (Tenn.
Oct. 15, 2014). According to Tennessee Code Annotated section 39-11-106(a)(3) “bodily
injury” includes a “cut, abrasion, bruise, burn or disfigurement, and physical pain or
temporary illness or impairment of the function of a bodily member, organ or mental
faculty.” This Court has held that the subjective nature of pain is a fact to be determined
by the trier of fact. State v. Eric A. Dedmon, No. M2005-00762-CCA-R3-CD, 2006 WL
448653, at *5 (Tenn. Crim. App. Feb. 23, 2006), no perm. app. filed.
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Premeditation is defined as “an act done after the exercise of reflection and
judgment.” T.C.A.§ 39-13-202(d). As noted above in our section on jury instructions, this
section further defines premeditation as follows:
“Premeditation” means that the intent to kill must have been formed prior
to the act itself. It is not 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. The State must establish the element of premeditation beyond a reasonable doubt. See
State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).
Premeditation may be proved by circumstantial evidence. See, e.g., State v. Brown, 836
S.W.2d 530, 541-42 (Tenn. 1992). The existence of premeditation is a question of fact for
the jury and may be inferred from the circumstances surrounding the killing. State v.
Young, 196 S.W.3d 85, 108 (Tenn. 2006); State v. Suttles, 30 S.W.3d 252, 261 (Tenn.
2000). Such circumstances include, but are not limited to, the use of a deadly weapon upon
an unarmed victim, the particular cruelty of the killing, the infliction of multiple wounds,
threats or declarations of an intent to kill, a lack of provocation by the victim, failure to aid
or assist the victim, the procurement of a weapon, preparations before the killing for
concealment of the crime, destruction and secretion of evidence of the killing, and calmness
immediately after the killing. State v. Kiser, 284 S.W.3d 227, 268 (Tenn. 2009); State v.
Leach, 148 S.W.3d 42, 53-54 (Tenn. 2004); State v. Davidson, 121 S.W.3d 600, 615 (Tenn.
2003); Bland, 958 S.W.2d at 660; State v. Larkin, 443 S.W.3d 751, 815-16 (Tenn. Crim.
App. 2013).
Here, the proof at trial, viewed in the light most favorable to the State, indicated that
the victim spent time with Defendant prior to the shooting. After the victim was shot at
his own house, he managed to make it to his neighbor’s house for help. The victim
explained that a car drove up, a car that he recognized as the car Defendant regularly drove,
and Defendant exited the car and shot the victim two more times. The distance from which
these shots were fired is unclear. The victim’s testimony was that the shots were fired from
70-80 feet away, but the body camera footage from the police officer on the scene suggests
that the distance from the neighbor’s porch to the street is significantly less than 70-80 feet.
When the police arrived, Defendant was in obvious pain but was coherent enough to
identify Defendant by name as the shooter. Nevertheless, the jury heard the proof and was
satisfied that Defendant’s identity was proven. As to premeditation, the victim testified
that Defendant shot him twice in the hand and then shot him in the head as he bent over to
protect himself from further attack. Prior to leaving the victim’s house, Defendant shot
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him two more times. The victim made it his neighbor’s house for help, only to be shot two
more times by Defendant as he pulled into a nearby driveway. The victim was unarmed.
The proof supports the jury’s finding of premeditation and supports the conviction for
attempted first degree murder. Defendant is not entitled to relief on this issue.
B. Employing a Firearm During the Commission of a Dangerous Felony
Our review of the record indicates that the State set forth evidence at trial from
which the jury could determine that Defendant employed a firearm during a dangerous
felony. In order to sustain a conviction, the State had to show that Defendants employed a
firearm during the commission of or attempt to commit a dangerous felony. T.C.A. § 39-
17-1324(b)(1), (2). Attempt to commit first degree murder is a dangerous felony. Id. at
(i)(1). The proof at trial showed that Defendant shot the victim multiple times. The
evidence was sufficient. Defendant is not entitled to relief.
Sentencing
Defendant complains about the length of his sentence and the trial court’s
application of various enhancement factors, including Tennessee Code Annotation section
40-35-114(2), (4), (5), (9), (10), and (14). The State, on the other hand, argues that the trial
court sentenced Defendant to a within-range sentence and that even if the trial court erred
in the application of some of the enhancement factors, the trial court did not abuse its
discretion.
When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper application
of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at 707. A trial
court abuses its discretion in sentencing when it “applie[s] an incorrect legal standard, or
reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v.
Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard does not permit an
appellate court to substitute its judgment for that of the trial court. Myint v. Allstate Ins.
Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the burden of proving that
the sentence is improper. T.C.A. § 40-35-101, Sentencing Comm’n Cmts. The weighing
of various enhancement and mitigating factors is within the sound discretion of the trial
court and we will not disturb the sentence even if we had preferred a different result. Bise,
380 S.W.3d at 709-10.
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At the sentencing hearing, the trial court heard testimony from the victim about the
extent of his injuries. The trial court also heard testimony from Defendant’s mother. Ms.
Scurlock testified that Defendant had never been in trouble and was in the Army Reserve
prior to being arrested for these offenses.
The trial court determined that Defendant had no criminal history. The trial court
also determined Defendant’s “risk and needs assessment” indicated the risk associated with
Defendant was “low as compared to others.” The trial court applied enhancement factor
(2), finding Defendant was “a leader in the commission of an offense involving two (2) or
more criminal actors.” T.C.A. § 40-35-114(2). Next, the trial court determined that the
victim was particularly vulnerable because of a physical disability, applying enhancement
factor (4). T.C.A. § 40-35-114(4). The trial court determined that the victim was “rendered
disabled” by Defendant’s first shots before Defendant shot the victim again on the porch
of the neighbor’s house. The trial court also determined that Defendant treated the victim
with “exceptional cruelty,” applying enhancement factor (5). T.C.A. § 40-35-114(5).
Defendant contends that the crime for which he was convicted, attempted first degree
murder, necessarily contemplates the type of injuries suffered by the victim and that the
trial court misapplied this enhancement factor. The trial court also found that Defendant
used a firearm during the commission of the offense and that Defendant had no hesitation
about committing a crime when the risk to human life was high. T.C.A. § 40-345-114(9),
(10). Finally, the trial court determined that Defendant abused a position of trust because
he and the victim were close friends. Id. at (15). The trial court sentenced Defendant to a
within-range sentence of twenty-five years for attempted first degree murder. Even if the
trial court improperly considered enhancement factors, as alleged by Defendant, the
“misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act.” Bise, 380 S.W.3d at
706. The trial court herein followed the proper sentencing procedures before sentencing
Defendant to a within-range sentence. Defendant is not entitled to relief on this issue.
Conclusion
Although the trial court committed error by failing to instruct the jury as to the
technical meaning of premeditation, the error was harmless. The judgments of the trial
court are affirmed.
___________________________
TIMOTHY L. EASTER, JUDGE
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