State of Tennessee v. Brian Jermaine Dodson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 18, 2012
STATE OF TENNESSEE v. BRIAN JERMAINE DODSON
Direct Appeal from the Circuit Court for Maury County
No. 18714 Stella L. Hargrove, Judge
No. M2011-00523-CCA-R3-CD - Filed June 27, 2012
The defendant, Brian Jermaine Dodson, was convicted by a Maury County Circuit Court
jury of first degree premeditated murder, attempted first degree murder, and aggravated
assault and sentenced to an effective term of life imprisonment. On appeal, he argues that:
(1) the trial court erred in allowing the State to amend counts two and three of the indictment
over his objection; (2) the trial court erred in allowing a State witness, Adrian Walker, to
testify concerning gang activity and in failing to grant his motion in limine regarding
Walker’s testimony; (3) the evidence is insufficient to support his convictions; (4) the trial
court erred in failing to instruct the jury on alibi; (5) the trial court erred in allowing the
defendant’s prior convictions to be introduced during trial; (6) newly discovered evidence
could have affected the outcome of the trial; and (7) the State committed prosecutorial
misconduct by using perjured testimony and an improper closing argument, the cumulative
effect of which deprived him of a fair trial. After review, we affirm the judgments of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.
Hershell D. Koger, Pulaski, Tennessee (on appeal); and Stanley K. Pierchoski,
Lawrenceburg, Tennessee (at trial), for the appellant, Brian Jermaine Dodson.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Mike Bottoms, District Attorney General; and Kimberly Cooper, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
According to the State’s proof at trial, cousins Kim Malone and Crystal McKee were
stabbed around 3:30 or 3:45 a.m. on December 14, 2008, in an apartment at Parkview Manor
Apartments in Maury County, Tennessee. As a result, the defendant was indicted for the
first degree premeditated murder of Malone and the attempted first degree murder and
aggravated assault of McKee.
State’s Proof
Officer Michael Brian Gray of the Columbia Police Department testified that he was
on duty on December 13, 2008, when he made a traffic stop of a speeding vehicle around
9:50 p.m. Brook Lee was driving the vehicle, and the defendant was the passenger. The
defendant provided Officer Gray with two identification cards – one showing a Memphis
address and one showing a Columbia address. Officer Gray’s patrol car was equipped with
video equipment, and, accordingly, the traffic stop was recorded.
Officer Gray recalled that the defendant was wearing a “blue and white checkered
flannel jacket” at the time of the stop and then later described it as a “blue and black,
checkered flannel coat.” He noted that the defendant’s clothes appeared to be clean and had
no visible dirt or bloodstains on them. Because the defendant was wearing a toboggan-style
hat, Officer Gray could not see his hair. However, he did see that the defendant had a “small
beard.” Officer Gray ultimately described that the defendant was wearing “a woolen white
checkered jacket with a white or gray-colored undershirt. Black like dickie pants and a
black toboggan[,]” and a blue bandana around his neck. Officer Gray noted that the blue
lights of his patrol car cast a blueish sheen on the color of the clothes on the videotape. The
defendant was searched during the traffic stop, and no knife was found on him.
Officer Sarah Howell with the Columbia Police Department testified that she was on
patrol the night of the offenses and responded to a reported stabbing at Parkview Manor
Apartments around 3:45 a.m. on December 14, 2008. The dispatch information was that a
male and a female had been stabbed. Officer Howell pulled into the apartment complex and
drove to the last building at the end of the drive where she saw a woman standing at the
bottom of the stairs. The woman was slouched over and had blood on her shirt, obviously
bleeding from her chest area. Officer Howell alerted other officers that she had located the
possible victim.
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Officer Howell testified that as she got out of her car and started walking toward the
woman, the woman turned around and walked toward an apartment. Officer Howell
followed the woman to the apartment and initially stood right inside the doorway. The
woman was in the middle of the living room on her knees, having trouble breathing and
“seemed kind of like she was in shock.” The woman also appeared as though she was
“[p]ossibly” under the influence of a narcotic.
Officer Howell testified that the woman identified herself as Crystal McKee and said
that her cousin, Kim Malone, was dead. When Officer Howell asked McKee where Malone
was, McKee said that she was in the kitchen. McKee told Officer Howell that she had been
in the back of the apartment cleaning a bedroom when she heard Malone (“the victim”)
screaming. McKee said that she walked into the living room and saw a black male, whom
she knew as “Lok,” with his hands around the victim. At that point, “Lok” left the victim
alone and approached McKee. He then proceeded to stab her with a long blade. McKee
could not recall what “Lok” was wearing. Officer Howell asked McKee if the stabbing was
related to “a drug deal gone bad,” and McKee answered, “[N]o. It had something to do with
whiskey,” that “Lok” wanted her whiskey.
Officer Howell testified that, once backup officers arrived and cleared the scene, she
walked into the apartment and found the victim lying facedown on the kitchen floor. The
victim’s head was in a pool of blood and there was a large, open laceration on the left side
of her neck. The victim did not have a pulse.
Crystal McKee testified that, in December 2008, the victim was thirty-seven years old
and lived alone at Parkview Manor Apartments. On December 13, 2008, around noon,
McKee went to the victim’s apartment to charge her cell phone. Shortly after arriving at the
victim’s apartment, McKee and the victim took “a couple puffs of crack.” The victim’s
boyfriend, Don, was also at the apartment, and he asked McKee to go Christmas shopping
with the victim later that day. The two left around 2:00 p.m. and then returned to the
apartment when they were finished shopping.
McKee testified that, shortly after returning to the apartment, she went to watch a
movie at William Reece’s home. After the movie, she returned to the victim’s apartment.
Around 3:00 a.m., someone started knocking loudly on the apartment door and calling the
victim’s phone. The two were in the bedroom in the back of the apartment at the time. The
victim answered some of the calls but ignored others. She appeared irritated and rolled her
eyes. Eventually, the victim went to answer the door. On cross-examination, McKee said
that the knock on the door that the victim went to answer occurred sometime between 3:00
and 3:30 a.m.
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McKee testified that eight to ten minutes after the victim went to answer the door, she
heard the victim screaming and went to see what was happening. McKee looked around the
corner and saw a man holding the victim around the waist, repeatedly stabbing her in the
back, smiling the entire time. McKee exclaimed, “Oh, my God. She can’t survive that,” and
the man looked directly at McKee and started “tearing” at the victim’s throat with the knife.
The man laid the victim down on the floor and approached McKee. He began stabbing her,
so she grabbed a nearby fan to try to push him away. She attempted to dial 911, and the man
stabbed her in the back. When he pulled the knife out, she misdialed the emergency number.
McKee testified that she was able to run to the bathroom and lock the door. She then
called 911. She heard what sounded like a cabinet door slamming, looked out of the
bathroom, and saw the chain on the front door swinging. Believing that the man was gone,
McKee exited the bathroom to look for the emergency personnel. McKee waited outside
for what “felt like forever” and then went back inside to be near the victim.
McKee testified that, when the police arrived, she was kneeling down on her knees
in the living room, and she pointed the officer to where the victim was lying. At the time,
McKee felt like she was going into shock and was losing a lot of blood. The officer asked
McKee if she knew who had stabbed the victim, and McKee said, “Lok” and gave a
description of what “Lok” was wearing. McKee said that she immediately recognized the
attacker and said that she knew him as “Lok.” She had seen him at the victim’s apartment
on previous occasions but had never had a conversation with him or known where he lived.
On the night of the stabbing, he was wearing a white cap on top of a “black blue bandana”
and a blue and black flannel coat. McKee identified the defendant in court as the attacker
and the person she knew as “Lok.”
McKee testified that she was transported to the trauma unit at Vanderbilt Hospital
and was in and out of the hospital for three months because hematomas kept building up in
the area under her left chest. McKee talked to Detective Duncan while she was in the
trauma unit, about four or five hours after the stabbing, and told him “Lok” was the person
responsible for the stabbing.
Donald Ray Burkett testified that he dated the victim for eight years and that he was
at her house the day prior to her murder. He recalled that he arrived around 7:30 a.m.,
McKee arrived around 11:00 a.m., and then he left around noon. He said that he did not see
McKee smoke any crack cocaine while he was there. He remembered that the victim’s cell
phone number was 931-286-1569.
Nathan Donovan testified that he worked with the defendant at Southern Glass
Company in Nashville for four months and that the defendant was known as “Lok” there.
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Due to the large size of the job site, Donovan gave the defendant a prepaid cell phone in
order to communicate with him there. Once he gave the defendant the phone, he never saw
it again.
Kimberly Cooper, an employee of AT&T, provided the phone records for telephone
number 615-838-9586, which was assigned to Donovan’s subscriber information. The
records showed that a call was made to the victim’s cell phone at 3:34 a.m. on December 14,
2008, and the length of the call was forty-one seconds. At 3:37 a.m., there was an incoming
call from the victim’s phone number that went to voicemail. Also at 3:37 a.m., there was
a call to the victim’s phone number from Donovan’s number that lasted five seconds.
Again, at 3:37 a.m., there was another incoming call from the victim’s phone number, with
a duration of zero seconds. Lastly, also at 3:37 a.m., Donovan’s number called the victim’s
phone number, and the call lasted fifty-seven seconds.
Adrian Walker, who was presently incarcerated in the Williamson County Jail on a
probation violation for a theft conviction, testified that he was incarcerated with the
defendant in early 2009 in the Maury County Jail. The two shared a cell together, during
which time the defendant told him about a situation where two women who owed him $300
“got cut up . . . reasonably bad” and that it was “messed up.” Walker said that the defendant
told him that he had been preparing to go out of town for his birthday and “basically was
going to collect the money,” but the women did not have it. The defendant told him that he
went to the home of a woman named Lena after the attack and changed his clothes at her
house. The defendant also told him that the State did not have the knife. The defendant
showed him black and white photographs of the murder scene and the two victims.
Walker testified that, on another occasion when he and the defendant were in the
same cell in June 2009, the defendant showed him color photographs of the murder scene
and told him that the State “had dropped the ball . . . because they picked up the dumpster
and . . . [it] went into the trash container instead of . . . driving straight to the detective’s
office.” When showing Walker the photographs, the defendant said that the women “got
really messed up.” The defendant mentioned to him several times that “it was just about 300
dollars.” On cross-examination, Walker testified that he also saw photographs of a dumpster
and a lot of trash but, when presented with the discovery photographs, he was unable to
point to any photograph that showed a dumpster. On redirect examination, Walker testified
that the reason he wrote a letter to the defendant while he was in the Williamson County Jail
was “because [he] had been getting stress from certain groups of Crypt1 individuals in [his]
jail” and was trying “to save [him]self.”
1
We have utilized the spelling found in the transcript, which we presume is phonetic. The correct
spelling may be “Crip,” which is a street gang.
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Officer Andre Martin with the Columbia Police Department testified that he was
instructed to retrieve a dumpster from Parkview Manor Apartments on December 15, 2008,
at 10:00 a.m. because officers believed the defendant had placed a bag inside that dumpster.
Officer Martin went to the apartment complex with a garbage truck and a flatbed truck and
instructed the driver of the garbage truck to pick up the dumpster in front of Building G and
place it on the flatbed truck. Once on the truck, the dumpster was to be taken to the police
department to be searched. Instead of following the instructions, however, the garbage truck
emptied the dumpster into the garbage truck. Officers had to search through the contents
of the garbage truck for a black plastic bag but did not find the bag they were looking for.
Detective Cory Cooper with the Columbia Police Department testified that he
reported to the crime scene around 4:00 a.m. on December 14, 2008, and was responsible
for processing the scene, which included taking photographs and collecting evidence.
Detective Cooper stated that his notes reflected that McKee told him her attacker was
wearing “a blue flannel shirt, tan pants, pj-type[, and a] blue bandana.”
Dr. Amy McMaster, qualified as an expert in the field of forensic pathology, testified
that she performed the autopsy on the victim. Dr. McMaster noted that the victim suffered
sixteen stab or cut wounds to various areas of her body. Dr. McMaster surmised that the
stab wound to the left side of the victim’s chest that injured the left lung and the four stab
wounds to her back that injured her ribs, spine, and spinal cord would have been fatal.
Helen Blackman Hannah testified that she knew the defendant in December 2008,
and he went by the nickname “Lok.” She recalled that the defendant showed up at her house
between 8:00 and 8:30 a.m. on December 14, 2008, and he was not wearing the “toboggan
hat” that he normally wore and had shaved his mustache. She was not sure how much hair
he had previously due to his always wearing a hat, but she observed that he did not have any
hair on his head that morning. Asked if the defendant had any eyebrows that morning,
Hannah said that she “d[id]n’t remember seeing much . . . hair on his face at all that
morning.” She also noted that the defendant often wore a black or blue plaid jacket, and he
was not wearing it that morning.
Detective Jeff Duncan with the Columbia Police Department testified that he was the
lead detective in this case and responded to the scene shortly after 4:00 a.m. on December
14, 2008. Thereafter, he traveled to Vanderbilt Hospital to talk to Crystal McKee, who was
coherent but “appeared to be still in shock.” McKee gave him a description of what had
happened and of her attacker. Detective Duncan learned of a traffic stop that occurred the
night before and watched the videotape of the stop. He also spoke to Nathan Donovan due
to Donovan’s connection to the phone number that had made calls to the victim’s phone.
As a result of the police investigation, the defendant was developed as the suspect. The
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officers located the defendant’s apartment, and Detective Duncan noted that it was
approximately fifty yards from the victim’s apartment. Officers executed a search warrant
on the defendant’s residence but did not discover the items they were looking for. They
were eventually able to locate the defendant, and an examination of him revealed no
evidence of cuts or bleeding. Detective Duncan directed the submission of numerous items
to the lab for testing.
Defendant’s Proof
Agent Hunter Greene, a forensic scientist with the Tennessee Bureau of Investigation
(“TBI”) Crime Laboratory, testified that she examined items of evidence submitted in this
case for latent fingerprints, and her examination failed to reveal the presence of any
identifiable prints.
Cassandra Beavers, a forensic scientist with the TBI Crime Laboratory, testified that
she tested both a white rock substance and a rock substance submitted in this case. Testing
of one of the items did not indicate the presence of any controlled substance, but testing of
the other item revealed the presence of cocaine base.
Agent Charles Hardy, a forensic scientist in the Swab and DNA Unit of the TBI
Crime Laboratory, testified that he tested various samples submitted in this case for the
presence of blood and DNA. Agent Hardy’s testing revealed, among other things, that the
defendant’s DNA was not present in a sample of blood collected from the bathroom sink
drain of his apartment. A sample of blood collected from the sofa in the defendant’s
apartment revealed a mixture of genetic material from at least three individuals, with a
female being the major contributor to the mixture but the victim and McKee were excluded
as the possible contributors. The defendant’s DNA was not found on any blood samples
collected from the victim’s apartment, nor was the victim’s or McKee’s DNA found on any
blood samples collected from the defendant’s apartment. On cross-examination, Agent
Hardy noted that there were three samples, two of which were blood samples, obtained from
the victim’s apartment from which he was unable to generate a DNA profile.
Johnnie Ruth Polk testified that she lived next door to the victim at Parkview Manor
Apartments in December 2008. Polk stated that someone knocked on her door around 3:00
or 3:30 a.m. on December 14, 2008, and, when she answered it, she saw a girl named Crystal
who informed her that the victim was dead. Polk could not tell if Crystal was hurt, and
Crystal did not tell her that she was hurt.
Brook Lee testified that she lived at 320 Roberts Drive in the Parkview Manor
Apartments in December 2008. Lee and the defendant were engaged at the time, and he
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stayed with her “from time to time.” On December 13, she and the defendant left her
apartment around 9:00 p.m. to get something to eat, but they ended up stopping at two
different gas stations. After leaving the second gas station, they were pulled over by a police
officer. Thereafter, sometime around 10:30 or 10:45 p.m., they went to a car wash. They
finally went back to Lee’s apartment around midnight.
Lee testified that, at her apartment, she and the defendant ate and watched a movie,
which ended around 2:00 or 2:15 a.m. At some point, both Lee and the defendant fell
asleep, but Lee was awakened around 3:00 a.m. when she heard the door open and
discovered that the defendant was going outside. He told her that he was going to smoke
and let the dog out, then he returned shortly thereafter. Once the defendant was back inside
the apartment, Lee fell asleep again but woke up when she heard someone knocking on the
door. Looking through the peephole, Lee saw that a woman named “Banks” who lived in
the apartment complex was at the door, but Lee did not open it. The defendant asked who
was at the door, and Lee told him. A few minutes later, the defendant walked outside and
was gone about fifteen minutes. It was approximately 3:30 a.m. at the time.
Lee testified that the defendant looked the same when he returned as he had when he
left. He was wearing dark pants, a flannel shirt, and a jacket. She thought he also had on
his toboggan hat and a do-rag. The defendant was not out of breath or excited and did not
have any blood on him. Once back in the apartment, the defendant sat on the couch for
fifteen minutes and then took a shower. Five minutes later, Lee heard sirens. When the
defendant got out of the shower, Lee got into bed. The defendant put on his work clothes
and joined her. Shortly thereafter, the defendant got up to get ready for work and left around
5:00 a.m. Lee noted that, when the defendant got out of the shower, he had shaved his head.
He explained to her that growing out his hair was “‘just too high maintenance[.]’” The
defendant had also shaved his beard and eyebrows. Lee stated that she did not observe the
defendant talking on the phone the entire time they were together that evening and early
morning, aside from during the traffic stop.
Clifford Bowen, an assistant in counsel’s law office, testified that he filed a request
for discovery in this case on March 2, 2009, and that they would have received the discovery
within a week after the request. He recalled that there were photographs in the discovery.
He sent copies of the photographs to the defendant along with the rest of the discovery
materials. He initially sent the defendant thumbnail-sized black and white photographs and
then later sent him larger-sized color photographs. Bowen said that he was familiar with all
714 photographs and said there was no photograph of a dumpster with trash in it or a
photograph of a garbage truck. On cross-examination, Bowen acknowledged that
information concerning the dumpster was in the State’s file, which he received because of
open file discovery and passed along to the defendant. On redirect, Bowen stated that he did
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not send the defendant any photographs before January 22, 2009, as they had not received
them at that time.
Darius Hawkins testified that he and the defendant were cell mates in the Maury
County Jail from December 2008 until February 2009. Another inmate, Adrian Walker, was
also in the cell with them for a one or two-week period in late January. Hawkins said that
he never heard the defendant talking about his case. He also never saw Walker looking
through the defendant’s paperwork.
Officer Jason Dark with the Columbia Police Department testified that he was on the
surveillance team assigned to observe the defendant’s apartment on December 15, 2008.
Around 7:30 or 8:00 that morning, a black male exited the apartment carrying a black plastic
trash bag, which he placed in the dumpster. Officer Dark said that he was not able to
identify the man.
Officer Paul McCormick with the Columbia Police Department testified that later in
the day of the stabbing, he was in the area around the defendant’s apartment and saw a
“heavy-set dark-haired female,” whom he believed to be the defendant’s girlfriend, holding
a spray bottle of cleaner and a bottle of bleach.
Antonio Turentine testified that he was at the Parkview Manor Apartments in
December 2008, the night before the stabbing incident, to attend a cookout for his cousin’s
birthday. Antonio’s2 cousin lived in the apartment above the defendant and his girlfriend.
The cookout started around 5:00 or 6:00 p.m. and lasted until 2:00 or 2:30 a.m. When
Antonio was leaving the party, he saw the defendant outside with a puppy, either rolling up
the windows of his car or making sure his car was locked.
Randall Turentine testified that he used to “hang out” at Parkview Manor Apartments
and remembered a time he attended a party there with his cousin, Antonio. Randall recalled
that he saw the defendant sometime during that evening when “it was just getting dark”
outside.
The defendant testified that he lived with his girlfriend, Brook Lee, at 320 Roberts
Drive in December 2008. Early in the evening of December 13, 2008, the defendant was
alone at the apartment, so he stopped by a party that was going on in the apartment upstairs
and talked to some people, specifically the “Turentine boys.” Around 7:00 or 8:00 p.m., the
defendant and Lee left the apartment and “rode around . . . contemplating . . . where [they]
2
Two of the witnesses have the same last name and will be referred to by first name only at times
for clarity. We mean no disrespect by this practice.
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wanted to go.” They eventually decided to go to Nashville but were pulled over by the
police before heading in that direction. After the traffic stop, they went to a car wash and
then decided to return to Lee’s apartment because it was around midnight.
The defendant testified that, back at the apartment, he turned up the heat and took off
his flannel jacket and hat. Lee prepared dinner, and the two sat down to watch a movie
around 12:15 or 12:30 a.m. After they finished watching the movie, there was a knock on
the door. Lee went to the door and saw that it was Ms. Banks, who also lived in the
complex, at the door. The defendant explained that Ms. Banks was an elderly lady who
sometimes came over to ask for cigarettes.
The defendant testified that, around 3:10 or 3:15 a.m., he left the apartment to take
his puppy out and go to his car to get his cigarettes and have a smoke. He estimated that he
was outside for about five minutes before he went back in. The defendant explained that it
was not unusual for him to be outside at that hour because he worked for a company in
Nashville and had to be at work at 6:00 a.m. As such, he would typically get up around 3:30
or 4:00 a.m. to get ready for work.
The defendant testified that he went back outside five to ten minutes later, around
3:30 or 3:40 a.m. He let the puppy out again and went to his car to roll up the windows and
lock the door. When he return to the apartment, he sat on the couch and watched television
for fifteen to twenty minutes. After that, he shaved his head, beard, and eyebrows and took
a shower.
The defendant testified that, while he was in the shower, Lee came in and told him
that there had been a stabbing or shooting in the apartment complex. The defendant told her
to stay away from the window in case someone was outside shooting. After his shower, the
defendant dressed in lounge clothes and got into bed. He woke up around 5:00 or 5:30 a.m.,
ate breakfast, and left the apartment.
The defendant testified that he had a cell phone at the time with the number 615-838-
9536, which was the cell phone he was talking on during the traffic stop. However, the
phone was somehow misplaced after the traffic stop, so he did not have it when they
returned to 320 Roberts Drive that night. He speculated that he may have left the phone at
the car wash or at a store they stopped by afterwards.
The defendant testified that he met the victim in the summer of 2008 when she was
having car trouble, and he helped start her car. He knew that the victim lived in an
apartment in the building adjacent to his girlfriend’s building and talked to her on the phone
and visited her apartment occasionally. He had seen Crystal McKee before but had never
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had a conversation with her. The defendant denied going to the victim’s apartment or
calling her on the night of the incident. The defendant said that he had not received any
discovery photographs in January 2009 – the first time he and Adrian Walker were housed
together in the Maury County Jail.
On cross-examination, the defendant recalled that he showed Adrian Walker some
black and white photographs of the crime scene but said that he did not recall showing
Walker any color photographs. However, he said that he did not tell Walker that the women
were stabbed because they owed him $300 for drugs. The defendant admitted that he
received a copy of his case file from counsel and was aware of the situation regarding the
contents of the dumpster being lost, but he denied mentioning anything about that to Walker.
Rebuttal Proof
Brook Lee denied knowing the defendant to be a drug dealer or ever telling Detective
Cooper that the defendant sold crack.
Detective Cooper testified that he interviewed the defendant, and the defendant told
him that “Lok” was not his nickname. The defendant denied making any telephone calls to
the victim within the day or two leading up to her murder. Detective Cooper said that Brook
Lee told him when he interviewed her that the defendant sold crack cocaine.
After the conclusion of the proof, the jury convicted the defendant of the first degree
premeditated murder of Kim Malone and the attempted first degree murder and aggravated
assault of Crystal McKee.
ANALYSIS
I. Amendment of Indictment
The defendant first argues that the trial court erred in allowing the State to amend
counts two and three of the indictment over his objection and after jeopardy attached.
Immediately after the jury was sworn, but prior to the reading of the indictment,
defense counsel moved to dismiss counts two and three of the indictment for lack of
jurisdiction because those counts charged that the respective offenses took place in
Lawrence County, rather than in Maury County where the evidence was going to show the
offenses took place. In response, the State moved to amend counts two and three to allege
that they occurred in Maury County. The defense responded that it did not consent to the
amendment and that its consent was required after the attachment of jeopardy, which
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occurred when the jury was sworn. The court denied the defendant’s motion to dismiss,
stating:
If [venue is] not an element then why is it such a fatal flaw? I mean,
during the course of the proof, clearly the State has the burden to prove by a
preponderance of the evidence . . . . I’m going to deny [the defense motion].
. . . There’s been an open file discovery. I understand your strategy in
bringing this at this time. However, it just seems blatantly unfair to . . .
require the State to dismiss these two [counts] at this time. . . . Certainly . . .
there’s no new offenses raised. His rights, he’s not prejudiced.
Rule 7(b)(2) of the Tennessee Rules of Criminal Procedure provides that, before
jeopardy attaches, a trial court may allow amendment to an indictment without the
defendant’s consent when “no additional or different offense is charged and no substantial
right of the defendant is prejudiced.” Id. 7(b)(2). However, once jeopardy attaches, an
indictment may only be amended by consent of the defendant. Id. 7(b)(1); see State v. Todd,
654 S.W.2d 379, 382 (Tenn. 1983) (Jeopardy attaches in a jury case after the jury is
impaneled and sworn.). The decision to grant or deny a motion to amend an indictment rests
within the sound discretion of the trial court, and this court will not alter that decision absent
an abuse of discretion. See State v. Kennedy, 10 S.W.3d 280, 283 (Tenn. Crim. App. 1999).
Rule 12(b)(2)(B) of the Tennessee Rules of Criminal Procedure provides that a
motion alleging a defect in the indictment, presentment, or information must be raised before
trial, but that “at any time while the case is pending, the court may hear a claim that the
indictment, presentment, or information fails to show jurisdiction in the court or to charge
an offense[.]” Id. “‘Lack of jurisdiction’ refers to subject matter jurisdiction,” State v.
Nixon, 977 S.W.2d 119, 120 (Tenn. Crim. App. 1997), which refers to a court’s authority
to adjudicate a dispute brought before it. Freeman v. CSX Transp., Inc., 359 S.W.3d 171,
176 (Tenn. Ct. App. 2010). “Venue, on the other hand, does not affect the court’s authority
to rule on matters before it[.]” Id. Defects in the indictment that go to form, rather than
substance, must be raised prior to trial or will result in waiver. Nixon, 977 S.W.2d at 121.
Examples of these type of defects include: “failure of the district attorney general to sign the
indictment, the identity of the person charged, the time at which the offense was committed,
and the place of the offense.” Id. (emphasis added). “It is not necessary for the indictment
to allege where the offense was committed, but the proof shall show a state of facts bringing
the offense within the jurisdiction of the county in which the indictment was preferred.”
Tenn. Code Ann. § 40-13-208.
In this case, count one of the indictment correctly alleges that the crime occurred in
Maury County; whereas, counts two and three incorrectly allege that the crimes occurred in
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Lawrence County. This defect is of the type that must be raised prior to trial or result in
waiver. As such, by failing to object prior to trial, the defendant has waived his issue. Tenn.
R. Crim. P. 12(b)(2), 12(f). In any event, even if the court erred in allowing the State to
amend the indictments, such error was harmless because the top of the indictment clearly
indicates it is from Maury County, the defendant knew the crimes were alleged to have
occurred in Maury County, and the indictment in no way misled or misinformed the
defendant of the charges against him.
II. Witness Adrian Walker
The defendant alleges several errors with regard to witness Adrian Walker’s
testimony. Specifically, he asserts that the trial court erred in allowing Walker to testify
concerning gang activity; that the court erred in failing to grant his motion in limine to
prevent Walker from testifying; and that the State violated its duty to provide exculpatory
evidence regarding a TBI interview of Walker.
We review the trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. See State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Tennessee
Rule of Evidence 401, which governs the initial issue of admissibility, requires the trial court
to first determine whether the proffered evidence is relevant. Evidence is 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. Tennessee Rule of Evidence 403 provides that, even if relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.
Before trial, defense counsel had a conversation with the prosecution and the court
concerning the defendant’s association with a gang not being delved into during trial. The
court noted that there needed to be a jury-out hearing prior to anything being mentioned
concerning a gang. Thereafter, during the State’s redirect examination of Walker, the
prosecutor asked Walker why he wrote the letter to the defendant in 2009 that he had been
questioned about on cross-examination, to which Walker responded that he “had been
getting stress from certain groups of Crypt individuals in [the] jail[.]” Defense counsel
objected, and the State responded that the defendant had opened the door by introducing the
letter and that Walker was entitled to explain why he wrote it. The court ruled that it would
allow Walker to explain why he wrote the letter to the defendant.
The defendant also filed a motion in limine to exclude Adrian Walker’s testimony
because Walker’s testimony would reveal to the jury that the defendant was in custody after
his arrest which would “irrevocably harm the [d]efendant’s right to the presumption of
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innocence[.]” The court noted that just because the defendant was in custody at the time of
his conversation with Walker did not give the jury any reason to believe that he was still in
custody at the time of trial. The court agreed with the argument by the State that the
defendant’s wearing street clothes at trial would take away any presumption of guilt that
might arise from knowledge of his post-arrest incarceration. The court offered to give a
limiting instruction, but the defendant declined.
Even though the defendant mentions on appeal these issues concerning Walker’s
testifying about gang activity and being allowed to testify in general, he offers no specific
argument as to why the court erred in allowing Walker to testify on redirect concerning the
reason he wrote the letter to the defendant, aside from asserting that he was “prejudicially
denied the ability to impeach . . . Walker’s credibility regarding his gang-related testimony
due to the State’s failure to provide the defense with exculpatory evidence.” As such, we
conclude that the defendant failed to prove that the trial court abused its discretion in
allowing gang-related testimony, and we will address the exculpatory evidence allegation
below. In addition, the defendant argues on appeal concerning Walker’s being allowed to
testify in general, not that Walker’s testimony revealed to the jury that the defendant was in
custody after his arrest which “irrevocably harm[ed] [his] right to the presumption of
innocence” as he argued in his motion in limine, but, instead, that Walker’s testimony was
“manufactured and/or speculative in nature” and the State “used Walker’s false testimony
to wrongly convict [him].” “It is well-settled that an appellant is bound by the evidentiary
theory set forth at trial, and may not change theories on appeal.” State v. Alder, 71 S.W.3d
299, 303 (Tenn. Crim. App. 2001) (citing State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim.
App. 1993)).
In any event, the defendant points to Walker’s testimony that the defendant had
showed him photographs of a dumpster as being the “false testimony” he complains that the
State used to convict him. However, such testimony was actually elicited by the defense on
cross-examination. On direct, Walker testified that the defendant told him when they were
incarcerated together the second time that the State had “dropped the ball” by emptying the
dumpster into the trash container instead of keeping the contents separate for inspection.
There was no mention of any photographs of a dumpster. Then, on cross-examination,
defense counsel asked Walker if he saw photographs of the dumpster, to which Walker
responded that he did. However, when he was presented with the discovery photographs,
Walker was unable to find any photographs of a dumpster, and the defense thoroughly cross-
examined Walker about the photographs and his knowledge of them. There is simply no
proof that the State used false testimony to convict the defendant.
Tied into these issues, the defendant asserts that the State failed to supply him with
exculpatory evidence concerning Walker, specifically evidence of the TBI’s interview of
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Walker on November 20, 2009. He claims that he would have been able to more fully cross-
examine Walker to impeach his credibility had he been provided the exculpatory evidence.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held
that the prosecution has a duty to furnish to the defendant exculpatory evidence pertaining
either to the accused’s guilt or innocence or to the potential punishment that may be
imposed. The Court explained that “suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. In order
to establish a Brady violation, a defendant must show that he or she requested the
information, the State suppressed the information, the information was favorable to his or
her defense, and the information was material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn.
1995). Evidence is “material” only if there is a reasonable probability that the result of the
proceeding would have been different had the evidence been disclosed to the defense.
United States v. Bagley, 473 U.S. 667, 682 (1985). The burden of proving a Brady violation
rests with the defendant, and the violation must be proven by a preponderance of the
evidence. Edgin, 902 S.W.2d at 389.
At the motion for new trial hearing, the defendant introduced a summary of TBI
Agent Brad Elliott’s November 20, 2009 interview with Adrian Walker concerning Walker’s
interview by an investigator sent by defense counsel the previous day in which Walker was
essentially intimidated. In the summary, the TBI agent detailed that Walker reported, among
other things, that the investigator showed him that she had personal contact information for
Walker’s loved ones that she was going to share with the defendant and that the defendant
considered Walker “a snitch.” The investigator informed Walker that the defendant was
affiliated with a gang and that “the defense had a good case until Walker got involved.”
Walker reported that the investigator asked him if he knew the meaning of the defendant’s
tattoos: one being that the defendant had committed a homicide, one being that he was a
member of the Shotgun Crip gang out of Los Angeles, and one being that he “uses knives
up close and personal and allegedly ha[d] stabbed a prison guard before.” The aspects of
the summary that the defendant alleges as exculpatory are that the investigator asked Walker
“about photographs of a dumpster and Walker stated he had no knowledge of that” and
because Walker failed to mention that he had been threatened by the Crips gang into writing
a letter to the defendant.
Upon review, we question how the TBI summary could be deemed favorable to the
defendant or “material,” i.e., that there is a reasonable probability that the result of the
proceeding would have been different had it been disclosed to the defense, because the
summary, as a whole, casts the defendant in a very egregious light. In any event, even if it
was error for the State to not disclose the summary, such error was harmless because Walker
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was thoroughly cross-examined about his knowledge of the dumpster and the vast majority
of the TBI summary would have been highly damaging to the defense, beyond any minute
benefit that might have been gained in cross-examination.
III. Jury Instructions
The defendant argues that the trial court erred in failing to give the jury an instruction
on alibi when it was fairly raised by the evidence. He asserts that proof of his alibi came by
way of the testimonies of Brook Lee, Antonio Turentine, and himself.
Brook Lee testified that, on the evening of the offenses, she and the defendant
watched a movie at her apartment, which ended around 2:00 or 2:15 a.m. Lee said that she
and the defendant fell asleep, but she was awakened around 3:00 a.m. when she heard the
door open and discovered that the defendant was going outside. He told her that he was
going to smoke and let the dog out, then he returned shortly thereafter. Lee said that the
defendant went outside again around 3:30 a.m. and was gone approximately fifteen minutes.
Antonio Turentine testified that he was attending a party at the Parkview Manor
Apartments the morning of the incident and, when he was leaving around 2:00 or 2:30 a.m.,
he saw the defendant outside with a puppy and either rolling up the windows of his car or
making sure his car was locked.
The defendant testified that, around 3:10 or 3:15 a.m., he left Lee’s apartment to take
his puppy out and go to his car to get his cigarettes and have a smoke. He said that he was
outside for about five minutes and then went back in. The defendant testified that he went
back outside five to ten minutes later, around 3:30 or 3:40 a.m., to let his puppy out again
and roll up his car windows and lock the door.
“It is well-settled in Tennessee that a defendant has a right to a correct and complete
charge of the law so that each issue of fact raised by the evidence will be submitted to the
jury on proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State
v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793 S.W.2d 236, 249 (Tenn.
1990)). Accordingly, trial courts have the duty to give “a complete charge of the law
applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn. Crim.
App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). The trial court
must instruct the jury on the defense of alibi when it is “fairly raised” by the evidence, see
Manning v. State, 500 S.W.2d 913, 915 (Tenn. 1973), regardless of whether the defendant
requests the instruction. See Poe v. State, 370 S.W.2d 488, 491 (Tenn. 1963). Proof of an
alibi sufficient to require an instruction exists where (1) the defendant’s claim that he was
not at the scene of the crime is corroborated by other credible witnesses; (2) the victim has
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been unable to identify the defendant; or (3) the proof against the defendant is wholly
circumstantial. Manning, 500 S.W.2d at 916. The failure to charge the jury with alibi when
it has been fairly raised by credible evidence is reversible error. Moffitt v. State, 29 S.W.3d
51, 57 (Tenn. Crim. App. 1999).
Upon review, we conclude that an instruction on alibi was not warranted in this case
because the defendant’s claim that he was not at the crime scene was not corroborated. In
fact, the defendant’s primary alibi witness, Brook Lee, testified that the defendant left her
apartment twice during those early morning hours, once being around 3:30 a.m. for a period
of fifteen minutes. Lee’s apartment was only fifty yards away from the victim’s apartment,
in the same complex. The evidence at trial showed that police officers responded to the
scene around 3:45 a.m. The defendant’s other alibi witness, Antonio Turentine, could only
vouch for the defendant’s whereabouts at 2:00 or 2:30 a.m., much earlier than the time of
the offenses.
In any event, even if the trial court erred in not instructing the jury on alibi, the error
was harmless beyond a reasonable doubt in light of the overwhelming evidence of the
defendant’s guilt. Crystal McKee, the surviving victim, testified that she saw the defendant
stab the victim multiple times and then proceeded to stab her at close range. She said that
she recognized the defendant immediately as she had seen him at the victim’s apartment on
previous occasions. The description McKee gave of the attacker’s clothing was similar to
what the defendant had been wearing earlier in the evening when he was pulled over by the
police. Moreover, evidence of calls made from the defendant’s cell phone to the victim
corroborated McKee’s testimony of someone calling the victim before the murder.
IV. Sufficiency of the Evidence
The defendant challenges the sufficiency of the convicting evidence, arguing there
is insufficient proof of his identity as the perpetrator of the offenses. When the sufficiency
of the convicting evidence is challenged, the relevant question of the reviewing court is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App.
P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond
a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
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S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts
in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so
that on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
The identification of a defendant as the perpetrator of a crime is a question of fact for
the trier of fact to determine from the evidence presented at trial. See State v. Strickland,
885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). The identification testimony of the victim is
sufficient, alone, to support a conviction. Id.
The reliability of an in-court identification depends on the totality of
the circumstances, “including the opportunity of the witness to view the
offender at the time of the crime, the witness’s degree of attention, the
accuracy of the prior description of the offender, the level of certainty of the
witness at the confrontation, and the length of time between the crime and the
confrontation.”
State v. Lindsey, 208 S.W.3d 432, 444 (Tenn. Crim. App. 2006) (quoting State v. Beal, 614
S.W.2d 77, 82 (Tenn. Crim. App. 1981)).
We conclude that the evidence, when viewed in the light most favorable to the State,
is sufficient to establish the defendant’s identity as the man who stabbed the victim and
Crystal McKee. McKee, the surviving victim, testified that, when she came around the
corner in response to the victim’s screams, she saw a man repeatedly stabbing the victim and
then look directly at her before cutting the victim’s throat with the knife. The attacker laid
the victim down on the floor and moved on to stabbing McKee, who was eventually able to
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get away and call 911. McKee testified that the attacker’s face was uncovered, and she
recognized him as “Lok,” having seen him on previous occasions at the victim’s apartment.
Officer Howell, the first officer to arrive on the scene, recalled that McKee reported to her
that a man named “Lok” was the attacker. McKee identified the defendant in court as the
attacker and person she knew as “Lok.” In addition, other testimony and evidence
established that the defendant was nicknamed “Lok,” that he called the victim in the time
frame leading up to her death, and that he shaved off all his hair and facial hair after
returning to Lee’s apartment the second time that morning. Moreover, Adrian Walker
testified that, when he was incarcerated with the defendant, the defendant told him about a
situation where two women who owed him $300 “got cut up . . . reasonably bad” and that
it was “messed up.” We note that any questions concerning McKee’s ability to identify the
defendant or the credibility of Walker’s or any other witnesses’ testimony were resolved by
the jury as the trier of fact. Based on this evidence, a rational trier of fact could have found
the defendant guilty of first degree premeditated murder, attempted first degree murder, and
aggravated assault.
V. Prior Convictions
The defendant argues that the trial court erred in allowing his two prior aggravated
assault convictions to be introduced at trial. Prior to the defendant’s testifying, the court
ruled that the defendant’s prior convictions could not be used for impeachment but that if
the defendant opened the door concerning his credibility, the court would readdress the
issue. The defendant later testified and, when asked on direct examination if he stabbed
Crystal McKee, responded, “No, I did not. I did not. I’m not that type of person.” When
the issue was revisited prior to the State’s cross-examination of the defendant, the court
ruled that it would allow the convictions to come into evidence, stating:
But I have to go back and weigh . . . the . . . relevance of the impeaching
conviction on the issue of credibility. And I have to find some way to explain
how the impeaching conviction is relevant to his credibility.
And if it is probative of his credibility then I have to go further and
assess the similarity between the crimes on trial and the crimes underlying the
impeaching convictions.
If the crime on trial is substantially similar then there’s always that
danger of propensity. Ah, if he did it then it’s likely he’d do it now. That type
stuff, type issues.
And so . . . now I have to decide, first of all, the relevance. . . . I do
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think that because [the defendant] took the stand that the probative value
certainly is heightened as to his past. . . . [I]t becomes important.
Now, this court let in a conviction of aggravated assault saying it was
probative of his credibility. That case did not go any further than the Court
of Appeals. I do have some difficulty on a conviction of aggravated assault
being probative of credibility with an alibi defense with the same issues at trial
as to prior conviction.
However, . . . this defendant went further . . . when he said “I’m not the
kind of person who would do something like that.” Certainly we have a
similarity. But similarity alone is not the question. We have to go further.
And the court is going to allow the two convictions. They will be
asked simply of [the defendant], whether or not they exist and nothing further.
There are two convictions of aggravated assault. Nothing else will be said
about that. Certainly no details.
The court finds, after weighing the - doing the test here, that the
probative value is not outweighed by the prejudicial effect. I think that [the
defendant] has put this at issue, not only with the alibi but moreover with his
statement “I’m not the kind of person who would do something like that.”
The defendant asserts that the trial court’s analysis was improper and incomplete and
that the court’s recollection of his statement “provided the court a more compelling basis to
allow the convictions tha[n] actually existed.”
A conviction may be used to impeach the testimony of an accused in a criminal
prosecution if the following four conditions are satisfied: (1) the conviction is for a crime
punishable by death or imprisonment in excess of one year, or the conviction is for a
misdemeanor which involved dishonesty or false statement; (2) less than ten years has
elapsed between the date the accused was released from confinement and the
commencement of the subject prosecution; (3) the State gives reasonable pretrial written
notice of the particular conviction or convictions it intends to use as impeachment; and (4)
the trial court concludes that the probative value of the prior conviction on the issue of
credibility outweighs its unfair prejudicial effect on the substantive issues. Tenn. R. Evid.
609; State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999).
Two factors should be considered when deciding whether the probative value of a
prior conviction outweighs its unfair prejudicial effect. Mixon, 983 S.W.2d at 674. First,
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“[a] trial court should . . . analyze the relevance the impeaching conviction has to the issue
of credibility.” Id. (citation omitted). Second, if the trial court finds that the prior conviction
is probative of the defendant’s credibility, then the court should “‘assess the similarity
between the crime on trial and the crime underlying the impeaching conviction.’” Id.
(quoting Neil P. Cohen et al., Tennessee Law of Evidence § 609.9 at 376 (3d ed. 1995)).
The more similar the impeaching conviction is to the offense for which the defendant is on
trial, the greater the risk of a prejudicial effect to the defendant. Id.
This court reviews a trial court’s ruling on the admissibility of prior convictions for
impeachment purposes under an abuse of discretion standard. See State v. Waller, 118
S.W.3d 368, 371 (Tenn. 2003).
The trial court considered the similarity between the charged crimes and the
defendant’s prior convictions of aggravated assault but determined that, while there was
certainly a similarity, the defendant testified that he did not stab McKee because “[he was]
not that type of person.” Thus, the defendant made his credibility and character for violent
crimes against others an issue by asserting that he would not commit such a crime. In State
v. Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim. App. 1996), this court held that
“[i]rrespective of admissibility under Rule 609 [of Tennessee Rules of Evidence], a
conviction may be used to contradict a witness who ‘opens the door’ and testifies on direct
examination that he or she has never been convicted of a crime, or to counter some other
facet of direct testimony.” (internal quotations omitted).
We also note that “[t]he fact that a prior conviction involves the same or similar crime
for which the defendant is being tried does not automatically require its exclusion.” State
v. Welcome, 280 S.W.3d 215, 222 (Tenn. Crim. App. 2007) (citations omitted). Here, the
court concluded that the probative value concerning the defendant’s credibility outweighed
the prejudicial effect potentially due to the similarity of the offenses. Upon review, we
conclude that the trial court did not abuse its discretion in allowing the defendant’s prior
convictions for aggravated assault to be introduced at trial. Moreover, with regard to the
defendant’s assertion that the court’s recollection of his response, “I’m not the kind of
person who would do something like that,” gave the court a more compelling reason to
allow the convictions than actually existed, we note that his actual answer, “I’m not that type
of person,” when in response to the question of whether he stabbed Crystal McKee, is
essentially the same thing. In any event, any possible error in allowing the prior convictions
was harmless in light of the evidence against the defendant.
VI. Newly Discovered Evidence
The defendant argues that newly discovered evidence, consisting of the testimony of
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Kendall Jordan that would have impeached Crystal McKee’s identification of him as the
assailant, entitled him to a new trial. The defendant actually raised the issue simultaneously
in his motion for new trial and in a petition for writ of error coram nobis. We will address
this issue from the denial of the motion for new trial because the writ of error coram nobis
is reserved for matters that were not or could not have been litigated on a motion for a new
trial, and that is clearly not the case here. Tenn. Code Ann. § 40-26-105(b).
As proof of newly discovered evidence, the defendant called Kendall Jordan to testify
at the motion for new trial. Asked whether Crystal McKee ever talked to him about a
situation where she was stabbed and her cousin was killed, Jordan responded, “[S]he didn’t
tell me about how she got stabbed. She just said like . . . she wasn’t familiar because she
was so messed up, she didn’t know who was there or not.” Asked to elaborate on what he
recalled McKee telling him, Jordan said, “She just told me like, she didn’t know who was
. . . like, she didn’t know. Because she was in shock, I guess. It’s been a minute ago. It’s
like, I don’t . . . I forget stuff. It’s like, I don’t know about like that. I don’t know nothing
about that.” Jordan stated that McKee did not mention anyone’s name and then stated that
McKee said she did not know who was responsible for the stabbing. Jordan stated that he
told the defendant what McKee had told him and assumed he had done so after the
defendant’s trial was over because the defendant was incarcerated.
Asked on cross-examination whether his discussion with the defendant could have
been before the defendant’s trial, Jordan responded, “I don’t know. I don’t keep up with
stuff like that because . . . I’ve got my own problems.” However, he said that it could not
have been before March 2010 because he was not in jail prior to that time. Jordan was
unsure of when during the prior year that McKee told him the information about her not
knowing who was in the apartment at the time of the stabbing, and he admitted that they
were all drinking when McKee gave him the information.
To be entitled to a new trial on the basis of newly discovered evidence, a defendant
must show (1) that he or she used reasonable diligence in seeking the newly discovered
evidence; (2) that the new evidence is material; and (3) that the new evidence will likely
change the result of the trial. See State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994). The
trial court is to determine the “‘credibility of newly discovered evidence for which a new
trial is asked,’” and the motion should be denied unless the court is assured that the
testimony would be worthy of belief by the jury. See State v. Walker, 910 S.W.2d 381, 395
(Tenn. 1995) (quoting Rosenthal v. State, 292 S.W.2d 1, 5 (Tenn. 1956)). When the newly
discovered evidence could have no other effect than to “discredit the testimony of a witness
at the original trial, contradict a witness’ statements or impeach a witness,” the trial court
should not order a new trial “unless . . . the evidence impeaching the witness [was] so strong
and convincing that a different result at trial would necessarily follow.” State v. Rogers, 703
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S.W.2d 166, 169 (Tenn. Crim. App. 1985). Whether to grant a new trial on the basis of
newly discovered evidence lies within the sound discretion of the trial court. See State v.
Caldwell, 977 S.W.2d 110, 117 (Tenn. Crim. App. 1997).
Upon review, we cannot conclude that the trial court abused its discretion in denying
the defendant a new trial based on newly discovered evidence. Kendall Jordan’s testimony
at the motion for new trial hearing was very unclear and not specific, particularly with regard
to what McKee allegedly told him. He repeatedly said, “I don’t know” and that he had
forgotten “stuff.” He could not state with any certainty when McKee told him the alleged
information and admitted that they had all been drinking when McKee made the statement.
In light of Jordan’s vague testimony, the trial court acted within its discretion in concluding
that the new evidence would not have likely changed the result of trial.
VII. Prosecutorial Misconduct
The defendant argues that the State committed prosecutorial misconduct by using
perjured testimony in its case-in-chief and by making improper statements during closing
argument.
With regard to the defendant’s contention that the State used the perjured testimony
of Adrian Walker and the “inaccurate and/or speculative testimony” of Crystal McKee to
convict him, we note that the testimonies of Walker and McKee have both been thoroughly
addressed above. The credibility of the witnesses was a determination for the jury. The
defendant is not entitled to relief on this issue.
With regard to the defendant’s allegations of prosecutorial misconduct during closing
argument, the State argues that the defendant waived the issue by failing to make a
contemporaneous objection at trial. In his reply brief, without conceding waiver, the
defendant submits that this court can review the issue under a plain-error analysis. As the
defendant failed to make a contemporaneous objection to any of the allegedly improper
statements at trial, we conclude that he has indeed waived this issue, see State v. Little, 854
S.W.2d 643, 651 (Tenn. Crim. App. 1992) (failure to object to prosecutor’s alleged
misconduct during closing argument waives any later complaint), but we will review for
plain error.
In order for us to find plain error:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
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(c) a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). The presence of all five factors must be established
by the record before we will recognize the existence of plain error, and complete
consideration of all the factors is not necessary when it is clear from the record that at least
one factor cannot be established. Id. at 283.
Tennessee courts “have traditionally provided counsel with a wide latitude of
discretion in the content of their final argument” and trial judges with “wide discretion in
control of the argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995).
A party’s closing argument “must be temperate, predicated on evidence introduced during
the trial, relevant to the issues being tried, and not otherwise improper under the facts or
law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The five generally
recognized areas of prosecutorial misconduct in closing argument occur when the prosecutor
intentionally misstates the evidence or misleads the jury on the inferences it may draw from
the evidence; expresses his or her personal opinion on the evidence or the defendant’s guilt;
uses arguments calculated to inflame the passions or prejudices of the jury; diverts the jury
from its duty to decide the case on the evidence by injecting issues broader than the guilt or
innocence of the accused under the controlling law or by making predictions on the
consequences of the jury’s verdict; and intentionally refers to or argues facts outside the
record, other than those which are matters of common public knowledge. State v. Goltz, 111
S.W.3d 1, 6 (Tenn. Crim. App. 2003).
For a defendant to be entitled to a new trial on the basis of allegedly improper
remarks during the closing argument, they must be shown to have prejudiced the case by
affecting the jury’s verdict. Middlebrooks, 995 S.W.2d at 559. In determining whether this
occurred, we consider the following factors: (1) the conduct viewed in light of the
circumstances and facts in the case; (2) any curative measures taken by the trial court and
the prosecution; (3) the prosecutor’s intent in making the improper statements; (4) the
cumulative effect of the prosecutor’s statements and other errors in the record; and (5) the
relative strength and weakness of the case. Id. at 560.
Here, the defendant argues that the State’s closing argument was improper or
inaccurate in the following ways: stating that the defendant’s bloody clothes were lost in
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the dumpster; stating that the defendant bragged to Adrian Walker that the State had no
proof against him; stating that the defendant talked to some people after he allegedly lost his
phone; interjecting personal opinion regarding Walker’s testimony; stating that the
defendant bragged to Walker; stating that Walker was not happy to hear how the victim was
killed; stating that the defendant put the victim on the floor like a piece of garbage; and
stating that the defense was “‘dragging bloody rags’ across the trails of justice.” However,
we have reviewed the relevant portions of the transcript of the closing argument, as well as
the testimony at trial, and determined that all of the prosecutor’s statements were well within
the bounds of acceptable argument. In particular, we note that the allegedly improper
statement about the defense “‘dragging bloody rags’ across the trails of justice” was not an
impugning of the defense in the case but a statement regarding what “some old lawyers refer
to [as a defense’s effort to mislead the jury with ‘red herrings’].” As such, we conclude that
there was no clear and unequivocal rule of law breached in this case and, accordingly, no
plain error.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
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ALAN E. GLENN, JUDGE
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