State of Tennessee v. Demarcus Stevenson

12/16/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 29, 2020 at Knoxville
STATE OF TENNESSEE v. DEMARCUS STEVENSON
Appeal from the Criminal Court for Shelby County
No. 16-05852 James M. Lammey, Judge
___________________________________
No. W2019-01785-CCA-R3-CD
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A Shelby County jury convicted Defendant, Demarcus Stevenson, of second degree
murder, attempted second degree murder, and employing a firearm during the
commission of a dangerous felony, for which Defendant received an effective sentence of
forty-three years’ incarceration. On appeal, Defendant contends that the trial court erred
by admitting into evidence the prior written statement of a witness, in its entirety, as a
prior inconsistent statement under Tennessee Rule of Evidence 803(26) and by admitting
testimony under Tennessee Rule of Evidence 404(b) regarding Defendant’s prior act of
violence against the murder victim. Defendant also challenges the sufficiency of the
evidence. Following a thorough review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.
Mark Mesler (on appeal) and Jason Matthews (at trial), Memphis, Tennessee, for the
appellant, Demarcus Stevenson.
Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stephanie Johnson
and Ryan Thompson, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
I. Background
This case concerns the shooting death of Frederick Johnson on September 5, 2015,
following an argument between Mr. Johnson and Defendant at the Save-A-Stop Number
Two market in Memphis. At trial, Officer Jonathan Douglas of the Memphis Police
Department (MPD) testified that he responded to the scene of a “shots fired” call near a
residence on Kimball Avenue. Officer Douglas saw an unattended motor scooter lying in
the road along with twelve 9mm shell casings nearby. Officer Douglas searched the area
and found an unresponsive Mr. Johnson, lying face down in a nearby backyard. When
paramedics arrived, they found that Mr. Johnson was deceased.
Officer Lee Walker testified that he worked for the Crime Scene Division of the
MPD. Officer Walker responded to the crime scene, where he photographed potential
evidence and created a crime scene sketch. Officer Walker collected the twelve 9mm
shell casings near the scooter on Kimball Avenue. At a second location further down
Kimball Avenue, he recovered nine .40 caliber shell casings, sixteen .223 caliber casings,
five .357 caliber casings, and one casing of an unknown caliber.
Dr. Paul Benson testified that he was a medical examiner and forensic pathologist
at the West Tennessee Regional Forensic Center in Memphis. Dr. Benson performed an
autopsy on Mr. Johnson. He concluded that the cause of Mr. Johnson’s death was
“gunshot wounds to the chest” and that manner of death was homicide. Dr. Benson’s
examination showed that Mr. Johnson suffered two gunshot wounds. The first gunshot
wound went through the right forearm and then into the chest, causing damage to the
right lung. Dr. Benson recovered the bullet lodged in Mr. Johnson’s back. The second
gunshot wound was to the chest; the bullet entered on the right side of the back, hit the
right lung, and then went to the front of the chest. Dr. Benson stated that Mr. Johnson’s
death would have occurred within minutes of being shot. During his examination of the
body, Dr. Benson also noted that Mr. Johnson had a scar on the left thigh from an old
gunshot wound. An x-ray showed an old bullet present in the left thigh, which showed
signs of corrosion and breakdown of the metal.
MPD Officer Chester Striplin testified that he assisted in the investigation by
attempting to retrieve video surveillance footage from three locations near the crime
scene. He first went to Save-A-Stop but found that the market’s video surveillance
“rewrites itself” every four hours and that, by the time he arrived at the market at 6:30 or
7:00 a.m., the video of the night before had been rewritten. Officer Striplin then spoke to
a homeowner near the crime scene who had surveillance cameras outside his home. The
homeowner gave Officer Striplin permission to review footage from the cameras. Officer
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Striplin found video footage of a person on a scooter and a second person in another
vehicle involved in an altercation. He transferred the video footage to a DVD and
provided it to the lead investigator, Lieutenant James Sewell. Officer Striplin also gave
Lieutenant Sewell relevant video surveillance footage, which he obtained from the third
location—Captain J.J.’s Fish and Chicken Restaurant.
MPD Officer Adam Pickering testified that, on September 15, 2015, he assisted
Lieutenant Sewell in executing a search warrant at an apartment on Orange Leaf Circle,
where Defendant lived with his mother. Officer Pickering recovered a loaded .357 Sig
Sauer magazine on the couch in the living room and a loaded .357 Sig Sauer pistol in the
bottom of a closet underneath some clothes. Under a bed in Defendant’s mother’s
bedroom, officers found a .38 caliber Charter Arms revolver that contained five live
rounds of .38 special ammunition.
MPD Lieutenant James Sewell testified that, on September 5, 2015, he was
working in the department’s Homicide Division and was assigned as the lead investigator
on the case. Following Mr. Johnson’s autopsy, Lieutenant Sewell collected two bullets
that the medical examiner recovered from Mr. Johnson’s chest. After the execution of
the search warrant at the apartment on Orange Leaf Circle, all items of evidence were
turned over to the crime scene unit. Lieutenant Sewell later took the evidence to the
Tennessee Bureau of Investigation (TBI) crime laboratory for testing to determine if any
of the recovered weapons were used to kill Mr. Johnson.
Regarding the video surveillance footage obtained from Captain JJ’s Fish and
Chicken Restaurant, Lieutenant Sewell testified that it showed a black Infinity pull into
the parking lot of Save-A-Stop. Two men got out of the back seat and went inside the
market. Shortly after, two individuals arrived on a scooter, and both men got off the
scooter and entered the market. Minutes later, the two men from the Infinity exited the
market and got back into the car as the passenger from the scooter also exited the market.
The Infinity then drove off, traveling west on Kimball Avenue. The video footage
showed that, less than a minute later, the two men on the scooter left the market heading
in the same direction as the Infinity.
Lieutenant Sewell testified that the video surveillance footage from the house near
the crime scene showed that the Infinity stopped at the curb in front of the house and
turned off its headlights. Someone got out of the car, and seven seconds later, the
scooter’s headlights approached. The video footage also showed that an individual
walked away from the car on the sidewalk; then, the individual turned and ran back to the
car. The Infinity started up again and continued driving west down Kimball Avenue.
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Lieutenant Sewell explained that a second camera at the house captured video
surveillance footage of the event from a different angle. The video footage showed that
the scooter came down the road, changed course, and then crashed. It also showed
muzzle flashes from a gun as the scooter approached. After the scooter crashed, the
scooter passenger “g[o]t into the street” and fired his gun several times.1
Special Agent Kasia Lynch testified that she worked in the Firearms Identification
Unit of the TBI’s Memphis Regional Crime Laboratory. Agent Lynch received firearm
evidence in connection with the case, including a .357 Sig Sauer pistol, five .357 Sig
caliber cartridges, a Charter Arms .38 special revolver, and five .38 special cartridges.
She also received two spent bullets taken from medical examiner’s office. Agent Lynch
tested these items and determined that the five .357 Sig caliber cartridge cases had been
fired in the .357 Sig pistol. Additional testing revealed that the bullets from the medical
examiner’s office had not been fired from the Charter Arms .38 special revolver and that
none of the spent cartridge casing Agent Lynch received had been fired in the revolver.
Agent Lynch found that the bullets recovered from Mr. Johnson’s body were consistent
with .40 caliber bullets, and she determined that they were all fired from the same .40
caliber firearm. Agent Lynch testified that the bullets she received from the medical
examiner “were not fired in [the] .357 Sig Sauer pistol.”
Antonio Robinson testified that he was currently Defendant’s cellmate at the
Shelby County Jail and that he had known Defendant before their incarceration. Mr.
Robinson identified his handwriting on an Advice of Rights form and testified that he
recalled signing the form. He agreed that he identified Defendant and Mr. Johnson in
photographs shown to him by police and that, on September 15, 2015, he gave a
statement to police regarding the shooting. Mr. Robinson testified, “I don’t recall giving
them the full statement. I remember some of it though.” He agreed that he initialed all
five pages of his statement and signed it.
Mr. Robinson testified that he was with Defendant at the Save-A-Stop, located at
the intersection of Kimball, Lamar, and Pendleton, on September 5, 2015. He said that
he had been picked up on Pendleton by Defendant and two other people, whom he
identified as “BK and Chris,” in a “dark Infinity.” They drove to the market, parked out
front, and Mr. Robinson and Defendant went inside. Mr. Robinson was purchasing
Defendant a drink and cigar when he saw Mr. Johnson. Defendant walked up to the
counter where Mr. Robinson stood, and Mr. Johnson said, “[Y]’all n***s still on that
bullsh*t?” Mr. Robinson told Mr. Johnson that he did not know Mr. Johnson, and Mr.
Johnson responded, “[T]hat [Defendant] b*tch *ss knows he shot me.” Mr. Robinson
1
Both the video surveillance footage from the house and from Captain J.J.’s Fish and Chicken
Restaurant were introduced as exhibits to Lieutenant Sewell’s testimony.
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responded that Mr. Johnson was being “petty,” and Mr. Johnson said, “[F]*ck y’all.” Mr.
Robinson and Defendant then exited the market, got back into the Infinity, and proceeded
up Kimball Avenue. BK, the driver of the Infinity, told Mr. Robinson that he was not
going back towards where Mr. Robinson lived, so about halfway up the street, Mr.
Robinson told him to pull over and let him out of the car and that he would walk back to
his residence. Defendant then told BK, “[H]old on that’s my little n****.”
Mr. Robinson denied seeing any guns inside the car and said that he did not recall
if the Infinity turned off its headlights when it pulled over. Mr. Robinson testified that he
could not recall if Defendant and the others inside the Infinity got out at the same time he
did. As he began to walk away, Mr. Robinson heard multiple gunshots coming from the
direction of the scooter. He said that he was “in shock,” and then the gunshots stopped.
Mr. Robinson then ran back to the car. He denied telling police that he saw Defendant,
BK, and Chris running back towards the car. Mr. Robinson testified that he saw BK and
Chris shooting towards the scooter but that he did not recall seeing Defendant with a gun.
Mr. Robinson said that he did not recall telling police that Defendant, Chris, and BK were
responsible for Mr. Johnson’s death.
Mr. Robinson denied telling police that, “as the car was pulling off[,] [Defendant]
was passing Chris the gun[.]” Mr. Robinson said that he did not recall telling the police
that BK turned off the headlights to the car as he was getting out. He said that, when he
got out of the Infinity, BK and Chris were standing beside the car. He denied telling
police that Defendant was out of the car and that he saw Defendant running back to the
car after the gunshots stopped. He denied telling police that Defendant was armed with
“a black, long machine gun.” He denied telling police that he first saw Defendant’s gun
when BK first picked him up on Pendleton. He denied saying that Defendant got out of
the Infinity with the gun and “started shooting” and that Defendant shot his gun towards
the two men on the scooter. He agreed, however, that Chris and BK were shooting at the
men on the scooter. He said that Chris and BK had handguns when they got out of the
car. He agreed that he told police that he heard three distinct gunshots, when the shooting
began. He said that the first shot he heard came from the scooter, but he acknowledged
that this was not what he told police. He denied telling police that he saw Defendant,
BK, and Chris get back into the car with their guns. Mr. Robinson testified that he saw
the passenger on the scooter with a gun and that he believed both the passenger and Mr.
Johnson were armed. He agreed, however, that he never saw Mr. Johnson with a gun.
On cross-examination, Mr. Robinson denied telling police that Defendant shot Mr.
Johnson. He said that Mr. Johnson was “aggressive with his words” inside the market
and that he approached Defendant like he wanted to fight. Mr. Robinson said that he
used marijuana, heroin, and cocaine the day he provided his statement to police, even
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though he told the police that he was not under the influence. He claimed that he did not
say a lot of the things in his statement and that he did not read it before signing.
Lieutenant Sewell was recalled and testified that he took a statement from Mr.
Robinson regarding the shooting on September 5, 2015. He said that he provided Mr.
Robinson his Miranda rights and that Mr. Robinson agreed to waive his rights and talk to
him. Lieutenant Sewell explained that Mr. Robinson’s statement corresponded to the
video surveillance footage collected by police from the surveillance cameras. He said
that he typed up Mr. Robinson’s statement while Mr. Robinson watched. Mr. Robinson
was given the opportunity to review the statement prior to his initialing each page and
signing it.
Lieutenant Sewell explained that Mr. Robinson told him that Defendant, BK, and
Chris were responsible for Mr. Johnson’s death. Mr. Robinson said that he saw
Defendant, BK, and Chris shooting at the two men riding on the scooter. Mr. Robinson
told police that Mr. Johnson confronted Defendant inside the market about Defendant’s
having previously shot Mr. Johnson. Mr. Robinson said that, as the Infinity pulled away
from the market, he saw Defendant pass Chris a gun. When BK asked Defendant what
was going on, Defendant instructed BK to “pull over.” Mr. Robinson explained that,
after BK pulled over, BK turned off the headlights, and they all got out of the car. Mr.
Robinson said, “I was getting ready to walk off and heard a number of gunshots. I was in
shock for like [thirty] seconds, and then I heard the gunshots stop. [Defendant] and them
was running back to the car.” Mr. Robinson said that he then heard gunshots coming
from the area of the scooter. Mr. Robinson stated, “I heard three different guns at first,
then I heard other gunshots from . . . down towards the scooter coming down our way.”
Mr. Robinson told Lieutenant Sewell that Defendant was armed with what looked like a
“long black machine gun.” He said that he first saw Defendant’s gun when he got into
the Infinity on Pendleton.
Lieutenant Sewell testified that Mr. Robinson did not appear to be under the
influence and that Mr. Robinson denied being under the influence during the interview.
He recalled that Mr. Robinson was cooperative and that Mr. Robinson made several
corrections to the statement as Lieutenant Sewell typed. Lieutenant Sewell agreed that
Mr. Robinson gave three different versions of the events of the night of September 5 but
stated that the last version was the one supported by other evidence. He testified that Mr.
Robinson initially said that he got out of the Infinity and never went back, but Lieutenant
Sewell confronted Mr. Robinson with the video surveillance footage showing that Mr.
Robinson returned to the car. Mr. Robinson then admitted getting back into the car but
denied seeing anyone with a gun. Lieutenant Sewell explained that, as he was leaving the
interview room after Mr. Robinson’s second statement, Mr. Robinson stopped him and
said that he had not told the truth. Mr. Robinson said that he did not want to “snitch” on
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Defendant. He then told Lieutenant Sewell the final version of his statement, in which he
said that he saw Defendant, BK, and Chris with guns and that they were all shooting at
Mr. Johnson and the other man on the scooter.
Deangelo Walker’s testimony
During a jury-out hearing, Deangelo Walker testified that on October 21, 2012, he
was with Mr. Johnson and Mr. Johnson’s son at the corner at Wooddale and Barwood
when some “guys” began shooting at them. Mr. Walker was hit by a bullet in his lower
left leg. Mr. Johnson was also hit by a bullet in the leg. Mr. Walker identified Defendant
as one of the individuals who shot at them. Mr. Walker stated that he did not know why
Defendant shot at him and that he believed Mr. Johnson was Defendant’s intended target.
Mr. Walker said that Defendant was charged in juvenile court in relation to the shooting
and that he and Mr. Johnson testified against Defendant in juvenile court regarding this
prior shooting.2
At the close of the Rule 404(b) hearing, the State argued that Mr. Walker’s
testimony was not being offered as character evidence but to establish a motive for
Defendant’s shooting of Mr. Johnson on September 5, 2015. The State noted that his
testimony explained a confrontation between Defendant and Mr. Johnson at the market
just prior to the shooting, arguing that it provided context to the argument. Additionally,
the State asserted that the evidence went to Defendant’s identity, noting that the defense
raised questions during cross-examination about the quality of the video footage collected
by police and whether it was actually Defendant who shot at Mr. Johnson. In response,
defense counsel argued that the evidence did not establish a motive for the instant
shooting. Counsel argued that Defendant was fifteen years old at the time of the 2012
shooting and that it would be “unfair for this to come and be used against him in this
situation.”
In admitting Mr. Walker’s testimony under Rule 404(b), the trial court stated:
So, looking at 404(b), evidence of other crimes, wrongs, or acts is
not admissible to prove the character of the person nor show action in
conformity with that character trait. It may, however, be admissible for
other purposes. The conditions which must be satisfied before allowing
such evidence are one, the Court, upon request, . . . must hold a hearing
outside the jury’s presence.
2
The record reflects that, following the hearing in juvenile court, Defendant was found to have
committed aggravated assault against Mr. Johnson and Mr. Walker and was adjudicated delinquent.
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Okay. So that’s what we’re doing now. And we’ll make note again
that the State did give notice of this, and that’s not necessarily required
under the rule, but nevertheless they did, ample notice to do that. And . . .
the Court must determine that a material issue exists other than the conduct
conforming with a character trait. It must upon request state on the record
the material issue, ruling, the reasons for admitting the evidence. Okay. So
I’ll get back to that. The Court must find proof of the other crime, wrong,
or act to be clear and convincing. I find that to be more than clear and
convincing.
....
[T]here is a bullet that was in [Mr. Johnson’s] leg. Now I find out
that that bullet was more than likely placed there by [D]efendant.
....
I guess you’re probably right [about the identity issue] as well. But
it -- as far as the context of this conversation, who it was between now it’s
more clear, because of this prior incident where Mr. Johnson says . . .
basically you’re the one that shot me and they had words, which is, I guess
understandable, I guess. But I still don’t know the motive or why
[Defendant] shot Mr. Johnson years before. I think it perhaps -- the motive
on this particular evening would have been as like a preemptive strike, I
guess or thinking that well, I guess since he saw me. He knows I’m around,
maybe he’s going to come looking for me.
The trial court determined that the prior shooting showed that Defendant had a
settled purpose to harm Mr. Johnson. The court stated:
This also is highly relevant to that, that [D]efendant had a [settled]
purpose to harm . . . Mr. Johnson. Now, if it were just that and . . . there
weren’t any other things like the context which I -- I find it’s definitely
relevant to put this in context and it’d explain the bullet and there’s other
things that I think it’s admissible for as well as the [settled] purpose to harm
and the identity. Because until this, I had no idea -- I was like, well, I don’t
know if he was out there shooting or not. But now . . . it’s pretty clear that
the jury would be justified in believing that either [Defendant] was shooting
or he was having other people shoot under criminal responsibility.
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So . . . I find there are ample reasons for admitting the evidence.
The Court must exclude the evidence if its probative value is merely
outweighed by the danger of unfair prejudice. . . . I think because of the
[settled] purpose to harm, a motive to commit the homicide on this
particular night, it’s relevant to that, to explain the bullet being present in
Mr. Johnson’s leg and where it came from, to explain the argument, the
context of this and the identity. I think . . . that the probative value far, far,
far outweighs the danger of unfair prejudice.
Following the trial court’s ruling, Mr. Walker testified before the jury consistently
with his testimony at the hearing.
Martieus Thomas’s testimony
Martieus Thomas testified that he rode on the scooter with Mr. Johnson on
September 5, 2015, and that went out to “get some weed” and cigars. When asked if Mr.
Johnson got into an altercation with someone inside Save-A-Stop, Mr. Thomas stated, “I
really don’t just remember, because I was under the influence[.]” Mr. Thomas said that,
as he and Mr. Johnson left the market on the scooter, they were shot at, and then they
both fell off the scooter. Mr. Thomas hid behind a car, and Mr. Johnson ran through a
yard and jumped over a gate. Mr. Thomas explained that he pulled out his Ruger 9mm
and began “shooting back.” When asked who was shooting at him, Mr. Thomas stated,
“I couldn’t see who it was, but I just seen like three or four people like all the way down
the street shooting.” Mr. Thomas said that he jumped over a gate and ran back to Mr.
Johnson’s residence, but Mr. Johnson was not there. He got rid of his gun and obtained
another from Mr. Johnson’s residence. Mr. Thomas testified that Mr. Johnson did not
have a gun at the time of the shooting. When Mr. Thomas returned to the scene, he found
that police and emergency services were there, so he returned to Mr. Johnson’s residence.
He testified that police came to the door about six or seven in the morning and informed
those at the residence of Mr. Johnson’s death. The police took Mr. Thomas into custody
at that time.
Mr. Thomas identified an Advice of Rights form that he signed at 9:30 a.m. Mr.
Thomas agreed that he spoke to police and told them what he remembered about the
events of the previous night. He agreed that he viewed a photographic lineup and
identified a man he knew as “Duke,” as having been inside the market that night. He
identified his signature on the photographic lineup and read what was written on the
form. The form stated, “[T]his one of the dudes that shot at me and killed [Mr.
Johnson].” He agreed that “Duke’s” photograph was circled on the photographic lineup
but claimed that he did not remember circling it. Mr. Thomas explained, “I was under
the influence. I don’t even remember nothing but getting shot at to be honest.”
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Mr. Thomas said that a written statement was prepared by an officer based on his
answers to questions asked by the officer about what happened. Mr. Thomas identified a
written statement as being the one presented to him by the officer, and he identified his
initials and signature on the statement. He agreed that he had a chance to review the
statement before he signed it. The following exchange then occurred:
[THE STATE]: Do you remember giving this statement to the
police?
[MR. THOMAS]: Naw, I don’t remember all that. Naw, I don’t
remember all that.
....
[THE STATE]: Do you recall telling the officers that, “we came to
the store, Save-A-Stop on Kimball and Lamar and we went inside.” Do
you remember telling the officers that?
[MR. THOMAS]: Yeah.
[THE STATE]: Okay. Do you remember telling them that [Mr.
Johnson] saw the person that shot him like a year ago?
[MR. THOMAS]: No. I don’t remember telling them all of that.
[THE STATE]: Okay. Do you remember telling them that they
started passing words and one thing led to another?
[MR. THOMAS]: Naw, I don’t remember that.
Mr. Thomas stated that he did not recall giving those answers to police during
questioning. Instead, he claimed that the police “switched [his answers] to they [sic] own
stuff.” When Mr. Thomas continued to testify that he did not remember telling the
officer what was in the written statement, the State requested a jury out hearing.
During a jury-out hearing, the State sought to introduce into evidence the written
statement as a prior inconsistent statement under Rule 803(26) of the Tennessee Rules of
Evidence. In response, defense counsel argued that the hearsay exception did not apply,
stating:
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[W]e’ve already heard testimony that it’s not reliable though. [Mr.
Thomas] has said, first of all, that they asked him questions. He gave
answers, and then they switched it. He’s testified to that already. We heard
him say that in open court in front of the jury.
The trial court responded, “Well, let me state for the record, to everyone that’s in
this courtroom it is totally obvious that [Mr. Thomas] is purposely being evasive and
difficult. I want to get that on the record.” The court continued:
[I]t’s obvious to everyone here, not just me, . . . [Mr. Thomas] is
deliberately being deceptive. And so I -- you know, as far as his not -- I
don’t really know if I believe that he doesn’t remember. But that’s neither
here nor there. If he says he doesn’t remember, then this -- this hearsay
exception seems like it would apply.
Defense counsel argued that Mr. Thomas testified that he was under the influence
at the time he gave the statement, but the trial court concluded that this would “go to the
weight” of the evidence. The State noted that Mr. Thomas testified that he remembered
some of the interview but not “the relevant parts” and argued that the parts of the
interview Mr. Thomas claimed not to recall should “come in as substantive evidence.”
The trial court responded that, based on Mr. Thomas’s testimony, it did not appear
that Mr. Thomas remembered “giving the statement at all.” The trial court explained that
the written statement was a typed statement by a police investigator that was witnessed
by additional officers, after Mr. Thomas was read an Advice of Rights and Advice of
Witness Viewing a Photographic Display form, both of which Mr. Thomas signed. The
trial court ruled that Mr. Thomas’s written statement was admissible, finding that the
written statement was created under “reliable circumstances” and that it was “made under
circumstances indicating trustworthiness.”
When the jury returned to the courtroom, Mr. Thomas testified that he did not
remember giving the statement to police. Mr. Thomas then identified Defendant as the
man he knew as “Duke” and agreed that he circled Defendant’s picture in the
photographic lineup.
On cross-examination, Mr. Thomas testified that he was “on bars and weed and
sh*t” at the time he was interviewed by police. He said that the handwriting on the
photographic lineup was not his handwriting. He claimed that officers told him to circle
someone he knew, so he circled Defendant’s photograph. He said that he did not
remember signing the document containing the photographic lineup but agreed that his
signature was on it. Regarding his written statement, Mr. Thomas testified, “I think [the
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officers were] writing a fictional account, because I don’t remember seeing them typing
nothing. I just remember them showing me some papers to sign, and I just wanted to get
up out of there.” He claimed that he did not read the statement before he signed it. He
stated that he never saw the person who shot at him and Mr. Johnson.
On redirect, Mr. Thomas acknowledged that he had previously testified under oath
about the shooting at a preliminary hearing in juvenile court in February 2016. He said
that he did not recall identifying Defendant as the shooter at the preliminary hearing. Mr.
Thomas testified that he listened to the audio recording of the preliminary hearing and
agreed that he was on the recording. He stated, however, that he did “[n]ot really”
remember giving that testimony in juvenile court.
The State then sought to play the recording of Mr. Thomas’s preliminary hearing
testimony, and defense counsel objected. The State argued that Defendant was wanting
to argue that Mr. Thomas’s statement was crafted by police but explained that it was “a
statement that [Mr. Thomas has] given twice now, one under oath, almost verbatim.”
The following exchange occurred:
[THE STATE]: The police didn’t make him come into court and say
that . . .
THE COURT: What did he say in the juvenile court hearing?
[THE STATE]: Exactly what’s in that [written] statement.
Defense counsel objected to the introduction of the audio recording of Mr.
Thomas’s preliminary hearing testimony, but the trial court stated that defense counsel
“clearly opened the door to all of it. I mean, suggesting to the jury that they just
fabricated all of this . . . .” The trial court allowed the State to play the audio recording of
Mr. Thomas’s testimony at the preliminary hearing.
The State then recalled Lieutenant Sewell a second time. Lieutenant Sewell
testified that he interviewed Mr. Thomas on September 5, 2015, and took a written
statement from him. Lieutenant Sewell explained that Mr. Thomas had been identified as
the passenger on the scooter with Mr. Johnson and that police had evidence that Mr.
Thomas had shot back at the assailants. Lieutenant Sewell read Mr. Thomas his Miranda
rights, and Mr. Thomas agreed to waive those rights and speak to him. Lieutenant Sewell
sat at his desktop computer, with Mr. Thomas beside him, and typed Mr. Thomas’s
statement. He made the font large enough that Mr. Thomas could see it, and he requested
that Mr. Thomas correct him if there were mistakes in the statement. After he finished
typing the statement, Lieutenant Sewell printed it, and Mr. Thomas initialed each page
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and signed the statement. Then, both Lieutenant Sewell and another officer signed the
document as witnesses.
The State then introduced Mr. Thomas’s statement, over Defendant’s objection.
In the statement, Mr. Thomas recalled the events leading up to the shooting:
[W]e was [sic] at my house and we left to go get some cigars. We
came to the store, Save-A-Stop on Kimball at Lamar. We went inside.
[Mr. Johnson] saw the person that shot him like a year ago. They started
passing words, and one thing led to another. We ended up pulling off on
the scooter after they had left.
Mr. Thomas explained:
Before we even got to the end of the street[,] shots were fired by the
two dudes in the store and some others.
Both of us fell off the scooter when the first shots was [sic] fired.
We started [crawling] for cover trying to get cover behind a car in the
driveway. When they started slowing down[,] I only heard about one
shooter. I decided to get in the street and start shooting back. They started
pulling off.
They pulled off. I looked for [Mr. Johnson] . . . and didn’t see him.
So I thought he ran home. I ran to his house. When I got there[,] he wasn’t
there. I told his family what happened. I got the .30 and went back out to
go look for [Mr. Johnson].
Mr. Thomas told Lieutenant Sewell that Mr. Johnson called one of the assailants
“Duke,” and Mr. Thomas provided a description of Duke. He said that Duke and a
second assailant left the market first and got into their car. Mr. Thomas continued:
[Mr. Johnson] said y’all shot me and this and that. They was [sic]
getting into a black Infinity that had two in the front seat already. The guys
in the front seat were talking to Duke, and the chubby guy as they were
getting in. The dude in the driver’s seat handed Duke a handgun. I seen
[sic] that with my own eyes. When I seen [sic] that, I pulled my gun out
because I thought they was fixing to start shooting, but they pulled off
instead.
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Mr. Thomas said that he and Mr. Johnson waited a minute and then drove off in
the same direction as the Infinity. Mr. Thomas said that the Infinity stopped at the corner
of Kimball and Labelle and turned off its headlights. He said that all four men got out of
the car as he and Mr. Johnson rode towards them. Mr. Thomas stated, “I told [Mr.
Johnson] to turn around and let me off the [scooter]. He didn’t get a chance. They
started shooting[,] and we crashed.” Mr. Thomas said that he thought all four men were
shooting at them. He saw two of the guns; he said, “One of them was a .30, because I
seen [sic] that long magazine. I think one had a shotgun because it sounded like it.” He
said that he heard the gunfire and saw bullets hitting the ground and going by his head.
Mr. Thomas explained that he had a black Ruger 9mm, which he threw into a nearby yard
after shooting back at the four men. He said that Mr. Johnson did not have a weapon. He
said that he had met Defendant one time “at juvenile.” Mr. Thomas denied that he was
under the influence of alcohol or drugs at the time of his statement.
Lieutenant Sewell said that Mr. Thomas did not appear to be under the influence.
Lieutenant Sewell allowed Mr. Thomas time to review the statement before he signed it.
Lieutenant Sewell stated that he interviewed Mr. Thomas eight to nine hours after the
shooting. Lieutenant Sewell agreed that a portion of the video surveillance footage
showed that several people got out of the Infinity. Lieutenant Sewell identified an
Advice of Witness Viewing Photographic Display form that he provided to Mr. Thomas.
He said that Mr. Thomas indicated that he understood the form and then signed and dated
it. Mr. Thomas picked Defendant out of the photographic lineup and identified
Defendant as one of the men shooting at him and Mr. Johnson.
Following deliberations, the jury convicted Defendant of second degree murder,
attempted second degree murder, and employing a firearm during the commission of a
dangerous felony. Following a sentencing hearing, the trial court sentenced Defendant,
as a Range I standard offender, to consecutive sentences of twenty-five years for second
degree murder, twelve years for attempted second degree murder, and six years for
employing a firearm in the commission of a dangerous felony, for a total effective
sentence of forty-three years to serve in the Tennessee Department of Correction.
Defendant filed a timely motion for new trial, which the trial court denied in a
written order after a hearing. This timely appeal follows.
II. Analysis
A. Mr. Thomas’s prior written statement to police
Defendant contends that the trial court erred in allowing the State to introduce the
entire written statement of Mr. Thomas under Rule 803(26) of the Tennessee Rules of
- 14 -
Evidence. He argues that Mr. Thomas acknowledged that he gave a statement to police,
that he signed and initialed the statement, and that he remembered telling police certain
parts of the statement. Defendant asserts that, during the jury-out hearing, the trial court
should have allowed the State to review each question and answer in Mr. Thomas’s
written statement to determine which portions of the statement were consistent with his
trial testimony and that the trial court should have excluded or redacted the consistent
portions of Mr. Thomas’s statement. The State responds that the trial court properly
exercised its discretion in admitting the entire written statement of Mr. Thomas as
substantive evidence.
A trial court’s factual findings and credibility determinations relative to a hearsay
issue are binding upon an appellate court unless the evidence preponderates against them.
Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The determination of whether the
statement in question is hearsay and whether a hearsay exception applies are questions of
law that are reviewed de novo. Id.Hearsay “is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Hearsay is inadmissible unless it qualifies as an exception. Id. at 802.
One such exception pertains to prior inconsistent statements of a testifying witness.
Tennessee Rule of Evidence 803(26) provides that a witness’s prior statement is
admissible as substantive evidence if it is otherwise admissible under Rule 613(b) and if
all the following conditions are satisfied:
(A) The declarant must testify at the trial or hearing and be subject to
cross-examination concerning the statement.
(B) The statement must be an audio or video recorded statement, a
written statement signed by the witness, or a statement under oath.
(C) The judge must conduct a hearing outside the presence of the
jury to determine by a preponderance of the evidence that the prior
statement was made under circumstances indicating trustworthiness.
Tenn. R. Evid. 803(26). Tennessee Rule of Evidence 613(b) provides in pertinent part
that “[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible
unless and until the witness is afforded an opportunity to explain or deny the same and
the opposite party is afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require.”
- 15 -
Our supreme court has determined that “a prior statement about events that a
witness claims at trial to be unable to remember is ‘inconsistent’ with the witness’ trial
testimony,” regardless of whether the memory loss is genuine, feigned, or exaggerated.
State v. Davis, 466 S.W.3d 49, 64 (Tenn. 2015). The supreme court noted in Davis that
its holding was:
in accord with decisions construing the meaning of “inconsistent” in
Tennessee Rule of Evidence 613(b), which, under certain circumstances,
allows a party to impeach a witness with extrinsic evidence of prior
inconsistent statements. See, e.g., State v. Martin, 964 S.W.2d 564, 567
(Tenn. 1998) (indicating that a prior statement is inconsistent for the
purposes of Rule 613(b) when the witness at trial denies or equivocates
about having made the statement); see also State v. Kendricks, 947 S.W.2d
875, 882 (Tenn. Crim. App. 1996) (stating that, if a witness does not recall
making a statement, the prior statement can be used to impeach the
witness); [Neil P. Cohen, et al., Tennessee Law of Evidence] § 6.13[3] [6th
ed. 2011] (noting that “evasive answers at trial may make an earlier
statement inconsistent with the trial testimony”).
Id.
This court has previously stated that, “when a witness’s prior statement contains
both consistent and inconsistent portions, the consistent portions are not admissible
pursuant to Tennessee Rule of Evidence 803(26).” State v. Kerry Granderson, No.
W2016-01687-CCA-R3-CD, 2017 WL 2875499, at *5 (Tenn. Crim. App. July 5, 2017),
perm. app. denied (Tenn. Nov. 20, 2017). In such cases, the prior statement should be
redacted. See id. (citing State v. Nathan Bernard Lalone, No. E2016-00439-CCA-R3-
CD, 2017 WL 2297653, at *19 (Tenn. Crim. App. May 25, 2017), no perm. app. filed;
State v. Robert Allen Zaloba, No. M2011-00855-CCA-R3-CD, 2012 WL 6690027, at
*20-21 (Tenn. Crim. App. Dec. 26, 2012), perm. app. denied (Tenn. Apr. 10, 2013); State
v. Charles Jackson and Willis Holloway, No. W2010-01133-CCA-R3-CD, 2012 WL
543047, at *10 (Tenn. Crim. App. Feb. 17, 2012), perm. app. denied (Tenn. June 22,
2012)).
In this case, the trial court did not abuse its discretion by admitting into evidence
Mr. Thomas’s prior written statement in its entirety. Mr. Thomas testified at trial and
was subject to cross-examination concerning the statement. The statement at issue was a
written statement signed by Mr. Thomas during his interview with police, the morning
after the shooting, after having been advised of his rights under Miranda. The trial court
conducted a jury-out hearing and determined that the prior written statement was made
under circumstances indicating trustworthiness. See Tenn. R. Evid. 803(26). Moreover,
- 16 -
Mr. Thomas was afforded the opportunity to explain or deny his prior written statement,
during which he claimed that most of his statement was created by the officers
conducting the interview. Thus, the requirements of Rule 613(b) were satisfied.
Mr. Thomas’s prior written statement concerned events that he claimed he was
unable to remember at trial. When asked if Mr. Johnson got into an altercation with
someone inside Save-A-Stop, Mr. Thomas stated, “I really don’t just remember, because
I was under the influence[.]” He agreed that he viewed a photographic lineup and
identified someone he knew as “Duke” as having been inside the market that night, but he
claimed that he did not remember circling Duke’s photograph. Mr. Thomas then stated,
“I was under the influence. I don’t even remember nothing but getting shot at to be
honest.” When asked if he remembered giving a statement to police, Mr. Thomas
responded, “Naw, I don’t remember all that. Naw, I don’t remember all that.” The
following exchange then occurred:
[THE STATE]: Do you recall telling the officers that, “we came to
the store, Save-A-Stop on Kimball and Lamar and we went inside.” Do
you remember telling the officers that?
[MR. THOMAS]: Yeah.
[THE STATE]: Okay. Do you remember telling them that [Mr.
Johnson] saw the person that shot him like a year ago?
[MR. THOMAS]: No. I don’t remember telling them all of that.
[THE STATE]: Okay. Do you remember telling them that they
started passing words and one thing led to another?
[MR. THOMAS]: Naw, I don’t remember that.
Mr. Thomas testified that he did not recall giving those answers to police
questioning and claimed that the officers conducting the interview “switched [his
answers] to they [sic] own stuff.” Following the jury-out hearing, when Mr. Thomas
returned to the stand, he testified that he did not remember giving the prior written
statement to police. On cross-examination, Mr. Thomas said that he was “on bars and
weed and sh*t” at the time he was interviewed by police. Thus, the trial court’s
determination that Mr. Thomas did not remember “giving the statement at all” was
certainly a fair characterization of Mr. Thomas’s testimony.
- 17 -
Defendant attempts to distinguish this case from Davis by arguing that Mr.
Thomas “clearly” testified that he remembered giving parts of his written statement.
However, Defendant has failed to identify substantive portions of Mr. Thomas’s prior
statement that were consistent with his trial testimony. Contrary to Defendant’s
assertions, Mr. Thomas’s trial testimony was not clear; as found by the trial court, he was
purposely “evasive and difficult” and “deliberately [] deceptive” in his testimony. The
trial court properly recognized, however, that whether Mr. Thomas’s memory loss was
genuine was irrelevant; his testimony that he did not recall the contents of his statement
to police the morning after the shooting—presumably due to his being under the
influence and “on bars and weed and sh*t”—was inconsistent with his written statement.
See Davis, 466 S.W.3d at 64. The written statement was admissible as a prior
inconsistent statement under Rule 803(26).
Moreover, we conclude that any possible error in the admission of Mr. Thomas’s
written statement under Rule 803(26) would be harmless. See Tenn. R. App. P. 36(b).
The State also introduced Mr. Thomas’s preliminary hearing testimony, during which Mr.
Thomas testified consistently with his written statement to police, and Defendant does
not challenge the introduction of the preliminary hearing testimony on appeal. Thus,
even if the trial court had not admitted Mr. Thomas’s written statement in its entirety, the
substance of the entire written statement was before the jury in the form of Mr. Thomas’s
preliminary hearing testimony. Moreover, as noted by the State, Mr. Thomas’s prior
written statement would also be properly admitted as a recorded recollection under
Tennessee Rule of Evidence 803(5), which states that “[a] memorandum or record
concerning a matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately, shown to have been
made or adopted by the witness when the matter was fresh in the witness’s memory and
to reflect that knowledge correctly.” Tenn. R. Evid. 803(5).3
The trial court followed the mandates of Tennessee Rule of Evidence 803(26), and
the record supports the trial court’s determinations. Therefore, we conclude that the trial
court did not abuse its discretion by admitting Mr. Thomas’s entire prior written
statement as substantive evidence. Defendant is not entitled to relief on this claim.
B. Mr. Walker’s testimony regarding the prior shooting
Defendant asserts that the trial court abused its discretion by allowing the State to
introduce, pursuant to Rule 404(b) of the Tennessee Rules of Evidence, the testimony of
3
We note that, if admitted under Rule 803(5), Mr. Thomas’s written statement could be read into
evidence, but the statement itself could not be received as an exhibit “unless offered by an adverse party.”
Tenn. R. Evid. 803(5).
- 18 -
Mr. Walker about Defendant’s prior shooting of Mr. Johnson. He argues that the trial
court “allowed the jury to hear testimony from a witness to an almost identical crime,
wherein Defendant played an identical role, and where Defendant targeted the same
victim[.]” Defendant contends that no material issue existed other than conduct
conforming to a character trait and that the probative value was outweighed by the danger
of unfair prejudice. The State responds that the trial court properly exercised its
discretion in admitting Mr. Walker’s testimony under Rule 404(b) because it was offered
for purposes other than showing Defendant’s propensity for violence, and the probative
value of Mr. Walker’s testimony outweighed the danger of unfair prejudice.
Generally, this court reviews a trial court’s decision to admit evidence based upon
its relevancy under an abuse of discretion standard. State v. DuBose, 953 S.W.2d 649,
652 (Tenn. 1997). Likewise, when such evidence is offered under Tennessee Rule of
Evidence 404(b) and the trial court has “substantially complied” with the procedural
requirements in that rule, we review the trial court’s decision under an abuse of discretion
standard. Id. We will reverse the trial court’s decision “only when the court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that
caused an injustice to the party complaining.” State v. Gilliland, 22 S.W.3d 266, 270
(Tenn. 2000) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)) (internal
quotation marks omitted).
Rule 404(b) of the Tennessee Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity with the
character trait. It may, however, be admissible for other purposes. The
conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or
act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.
- 19 -
Tenn. R. Evid. 404(b); see also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005);
State v. Parton, 694 S.W.2d 299, 302 (Tenn. 1985). Rule 404(b) is generally one of
exclusion, but exceptions to the rule may occur when the evidence of the otherwise
inadmissible conduct is offered to prove the defendant’s motive, identity, or intent; the
absence of mistake or accident; opportunity; or a common scheme or plan. State v.
Toliver, 117 S.W.3d 216, 230 (Tenn. 2003); State v. McCary, 119 S.W.3d 226, 243
(Tenn. Crim. App. 2003).
Before admitting Mr. Walker’s testimony, the trial court held a jury-out hearing
and found that a material issue other than conduct conforming with a character trait
existed. See Tenn. R. Evid. 404(b). Specifically, the trial court concluded that Mr.
Walker’s testimony was admissible because it related to Defendant’s motive to commit
the homicide on the night of the offense, showed Defendant’s settled purpose to harm Mr.
Johnson, provided contextual background to the confrontation between Mr. Johnson and
Defendant inside the market prior to the shooting, and explained the presence of the
bullet in Mr. Johnson’s leg. The trial court found that the proof of the prior bad act was
clear and convincing and that the probative value of the evidence was not outweighed by
the danger of unfair prejudice. See id. Because the trial court substantially complied
with the procedural requirements of Rule 404(b), we will review the trial court’s
determination for an abuse of discretion. Thacker, 164 S.W.3d at 240 (citing DuBose,
953 S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1990)). “A
trial court abuses its discretion when it applies an incorrect legal standard, reaches an
illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence,
or employs reasoning that causes an injustice to the complaining party.” Davis, 466
S.W.3d at 61.
Our supreme court has determined that evidence of a defendant’s prior acts of
violence against the victim in a murder case is admissible under Tennessee Rule of
Evidence 404(b) because the acts are relevant to showing the defendant’s hostility toward
the victim, the settled purpose to harm the victim, and the intent and motive for the
killing. State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993); see also State v. Gilley, 297
S.W.3d 739, 758 (Tenn. Crim. App. 2008); State v. Turnbill, 640 S.W.2d 40, 46-47
(Tenn. Crim. App. 1982). Additionally, “contextual background evidence, which
contains proof of other crimes, wrongs, or acts, may be offered as an ‘other purpose’
under Rule 404(b) when exclusion of that evidence would create a chronological or
conceptual void in the presentation of the case and that void would likely result in
significant jury confusion concerning the material issues or evidence in the case.”
Gilliland, 22 S.W.3d at 272.
We conclude that evidence of Defendant’s prior shooting of Mr. Johnson was
properly admitted. The evidence was relevant because it established the relationship
- 20 -
between the parties and showed Defendant’s hostility toward the victim, malice, intent,4
and a settled purpose to harm the victim. See id. Not only did the State offer proof of
Defendant’s prior violent act against Mr. Johnson but also that Mr. Johnson subsequently
testified against Defendant in juvenile court, leading to Defendant’s delinquency
adjudication. The evidence of Defendant’s prior violence towards Mr. Johnson was
admitted not to prove that Defendant acted in accord with this character trait but as part
of the proof establishing Defendant’s motive for killing Mr. Johnson.
Furthermore, the probative value of the testimony was not outweighed by the
danger of unfair prejudice. When there is a “lack of forensic evidence” linking a
defendant to a crime, “the probative value of evidence tending to prove why the
defendant committed the crime [is] high.” State v. Jones, 15 S.W.3d 880, 895 (Tenn.
Crim. App. 1999) (emphasis added). Here, the State relied heavily on the written
statements of Mr. Thomas and Mr. Robinson, who identified Defendant as directing and
participating in the shooting. The State also relied on Mr. Walker’s testimony about the
prior shooting to establish Defendant’s motive and intent, his settled purpose to harm Mr.
Johnson, and to provide context for the confrontation with Mr. Johnson inside the market
immediately before the shooting. Because Mr. Walker’s testimony about the prior
shooting was highly probative of these material issues, we conclude that the similarity of
the prior shooting to the charged offense, although prejudicial, was not unfairly
prejudicial. State v. Mallard, 40 S.W.3d 473, 488 (Tenn. 2001) (citing DuBose, 953
S.W.2d at 655; State v. Nesbit, 978 S.W.2d 872, 893 (Tenn. 1998); State v. Hall, 958
S.W.2d 679, 708 (Tenn. 1997)) (“[W]hen evidence of prior acts is highly probative of a
material issue at trial, the chance of unfair prejudice to the defendant is correspondingly
diminished.”) (emphasis in original).
Relying on State v. Jones, 450 S.W.3d 866, 894 (Tenn. 2014), Defendant argues
that the danger of unfair prejudice posed by Mr. Walker’s testimony outweighed its
probative value because Defendant’s prior shooting of Mr. Johnson was substantially
similar to the charged offense but was not so distinctively similar as to establish
Defendant’s identity. See id. at 894-99. In Jones, our supreme court held that, when the
material issue at trial is the identity of the defendant,
[t]he probative value of evidence of other crimes . . . depends upon the
extent to which it raises an inference that the perpetrator of the prior
4
We note that Defendant was only indicted for second degree murder, which is a knowing
killing. See Tenn. Code Ann. § 39-13-210(a)(1) (2015). However, a finding that a defendant acted
intentionally necessarily establishes that the defendant acted knowingly. See Tenn. Code Ann. § 39-11-
301(a)(2) (2015). Therefore, the State could use the prior bad act evidence to prove that Defendant acted
intentionally on the night of Mr. Johnson’s murder. See e.g., State v. Jimmie Martin, No. W2013-00889-
CCA-R3-CD, 2014 WL 2566490, at *16 (Tenn. Crim. App. June 5, 2014).
- 21 -
offenses was the perpetrator of the offense in issue. Both the existence and
the strength of an inference proceeds through an evaluation of the
similarities between the prior offense and the charged crime. Thus, if the
characteristics of both the prior offense and the charged offense are not in
any way distinctive, but are similar to numerous other crimes committed by
persons other than the defendant, no inference of identity can arise. An
inference of identity from prior crimes can only arise when the elements of
the prior offense and the charged offense, singly or together, are
sufficiently distinctive to warrant an inference that the person who
committed the prior offense[ ] also committed the offense on trial[.]
Id. at 895 (quoting Bunch v. State, 605 S.W.2d 227, 230 (Tenn. 1980)) (emphasis in
original). We agree with Defendant that the prior shooting and the instant offense were
not so distinctively similar as to establish Defendant’s identity, and thus, Mr. Walker’s
testimony about the prior shooting should not have been admitted for this purpose under
Rule 404(b). However, as previously explained, the trial court properly admitted
evidence of the prior shooting to show Defendant’s hostility toward the victim, malice,
intent, and a settled purpose to harm the victim. Defendant is not entitled to relief.
C. Sufficiency of the evidence
Defendant contends that the evidence adduced at trial was insufficient to sustain
his convictions. He argues that the two eyewitnesses testified that they did not see
Defendant with a weapon or fire a weapon, that it was not possible to identify the shooter
on the surveillance videos introduced at trial, and that the guns found in Defendant’s
apartment were found not to be the weapon that killed Mr. Johnson. The State responds
that the evidence is sufficient for any rational trier of fact to find Defendant guilty of
second degree murder, attempted second degree murder, and employing a firearm during
the commission of a dangerous felony beyond a reasonable doubt.
Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).
- 22 -
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
As relevant here, second degree murder is “[a] knowing killing of another[.]”
Tenn. Code Ann. § 39-13-210(a)(1) (2015). Second degree murder is a “result of
conduct” offense. See State v. Brown, 311 S.W.3d 422, 431-32 (Tenn. 2010); State v.
Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Accordingly, the appropriate statutory
definition of “knowing” in the context of second degree murder is as follows: “A person
acts knowingly with respect to the result of the person’s conduct when the person is
aware that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-
11-302(b) (2015); see Brown, 311 S.W.3d at 431. “A person commits criminal attempt
who, acting with the kind of culpability otherwise required for the offense . . . [a]cts with
intent to complete a course of action or cause a result that would constitute the offense,
under the circumstances surrounding the conduct as the person believes them to be, and
the conduct constitutes a substantial step toward the commission of the offense.” Tenn.
Code Ann. § 39-12-101(a)(3) (2015).
“It is an offense to employ a firearm during the . . . [c]omission of a dangerous
felony[.]” Tenn. Code. Ann. § 39-17-1324(b)(1) (2015). Attempt to commit second
degree murder is a “dangerous felony.” Tenn. Code Ann. § 39-17-1324(i)(1)(B) (2015).
The term “employ” means “to make use of.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn.
2014).
Although jury instructions were not included in the appellate record, the trial court
indicated in a discussion on the jury instructions that it intended to charge the jury on
criminal responsibility, and the State referenced a jury instruction on criminal
responsibility during its closing argument. “A person is criminally responsible as a party
to an offense, if the offense is committed by the person’s own conduct, by the conduct of
another for which the person is criminally responsible, or by both.” Tenn. Code Ann. §
39-11-401(a) (2015). As pertinent here, “[a] person is criminally responsible for an
offense committed by the conduct of another, if[,] . . . [a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the
offense[.]” Tenn. Code Ann. § 39-11-402(2) (2015).
- 23 -
Criminal responsibility is not a separate crime but instead a theory by which the
State may prove the defendant’s guilt based upon another person’s conduct. State v.
Osborne, 251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v. Mickens, 123
S.W.3d 355, 389-90 (Tenn. Crim. App. 2003)). “[U]nder the theory of criminal
responsibility, presence and companionship with the perpetrator of a felony before and
after the commission of the crime are circumstances from which an individual’s
participation may be inferred.” State v. Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App.
2001). In order to be convicted of the crime, the evidence must establish that the
defendant in some way knowingly and voluntarily shared in the criminal intent of the
crime and promoted its commission. State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.
App. 1994); State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
Viewed in the light most favorable to the State, the evidence is sufficient to
support Defendant’s convictions under a theory of direct criminal liability or a theory of
criminal responsibility. Mr. Thomas testified that he rode with Mr. Johnson to the Save-
A-Stop market on September 5, 2015. He said that, while inside the market, Mr. Johnson
saw Defendant. Mr. Thomas testified that Defendant had shot Mr. Johnson previously
and that Mr. Johnson and Defendant began “passing words, and one thing led to another.”
Mr. Thomas testified that he and Mr. Johnson left the market on a scooter after Defendant
and his friends pulled away. Mr. Thomas stated that, before he and Mr. Johnson got to
the end of Kimball Avenue, they were shot at and that both he and Mr. Johnson fell off
the scooter.
Mr. Thomas told Lieutenant Sewell that he saw the man in the driver’s seat of the
Infinity hand Defendant a gun before the Infinity pulled away from the market. Mr.
Thomas said that the Infinity stopped at the corner of Kimball and Labelle and turned off
its headlights. He said that all four men got out of the car as he and Mr. Johnson were
riding towards them. Mr. Thomas stated, “I told [Mr. Johnson] to turn around and let me
off the [scooter]. He didn’t get a chance. They started shooting[,] and we crashed.” Mr.
Thomas said that he thought all four men were shooting at them. Lieutenant Sewell
testified that Mr. Thomas picked Defendant out of a photographic lineup and identified
Defendant as one of the men who shot at him and Mr. Johnson.
Mr. Robinson testified that he was with Defendant inside the market when Mr.
Johnson confronted Defendant and became verbally aggressive about the prior shooting.
Mr. Robinson said that he and Defendant got back into the Infinity with two of their
friends, Chris and BK, and proceeded up Kimball Avenue. Mr. Robinson told Lieutenant
Sewell that, as the Infinity pulled away from the market, he saw Defendant pass Chris a
gun. About halfway up the street, Defendant directed BK to “pull over,” telling him,
“[H]old on. That’s my little n****.” Mr. Robinson explained that BK pulled over and
turned off the headlights and that they all got out of the car. Mr. Robinson told
- 24 -
Lieutenant Sewell that Defendant was armed with what looked like a “long black
machine gun.” Mr. Robinson said that, as he began to walk away from the Infinity, he
“heard three different guns at first” and then “heard other gunshots from . . . down
towards the scooter coming down our way.” Mr. Robinson said that Defendant, BK, and
Chris had guns and were all shooting at Mr. Johnson and Mr. Thomas as they rode
towards them on the scooter. Lieutenant Sewell testified that video surveillance footage
from multiple vantage points confirmed the sequence of events as described by Mr.
Robinson in his written statement.
Officer Douglas testified that, by the time that paramedics arrived at the scene, Mr.
Johnson was deceased. Dr. Benson testified that the cause of Mr. Johnson’s death was
two gunshot wounds to the chest and that manner of death was homicide. Although the
gun used to kill Mr. Johnson was not located, officers recovered nine .40 caliber shell
casings on Kimball Avenue where the Infinity had pulled over. At the same location,
they also recovered sixteen .223 caliber casings, five .357 caliber casings, and one casing
of an unknown caliber. When police executed a search warrant at Defendant’s apartment
weeks later, they found a fully loaded .357 Sig Sauer pistol, and testing by the TBI
confirmed that the pistol was used to fire the five .357 caliber casings found on Kimball
Avenue.
We conclude that the foregoing evidence is more than sufficient to support a
finding that Defendant is guilty of second degree murder of Mr. Johnson, attempted
second degree murder of Mr. Thomas, and employing a firearm during the commission of
a dangerous felony beyond a reasonable doubt. This issue is without merit.
III. Conclusion
Based on the foregoing reasons, we affirm the judgments of the trial court.
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ROBERT L. HOLLOWAY, JR., JUDGE
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