State of Tennessee v. Jabriel Linzy, Alias ( 2017 )

08/18/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 23, 2017 Session
STATE OF TENNESSEE v. JABRIEL LINZY, ALIAS
Appeal from the Criminal Court for Knox County
No. 104488 G. Scott Green, Judge
No. E2016-01052-CCA-R3-CD
The Defendant, Jabriel Linzy, alias, appeals as of right from his convictions for first
degree murder, attempted first degree murder, and employment of a firearm during the
commission of a dangerous felony. The Defendant argues (1) that there was insufficient
evidence to support his convictions, and (2) that evidence from social media posts was
improperly admitted. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Christopher M. Rodgers, Knoxville, Tennessee, for the Defendant, Jabriel Linzy, alias.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Charme P. Allen, District Attorney General; and TaKisha M. Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case arose after a shooting occurred at Walter P. Taylor Homes apartment
complex (Walter P.) on October 3, 2014, resulting in the death of the victim, Dominique
Johnson. Devonte Blair was sitting next to the victim on an apartment porch when a
vehicle stopped in front of the apartment, and a man began firing a gun at the two men.
The Knox County Grand Jury charged the Defendant with one count of first degree
murder, one count of attempted first degree murder, and one count of employing a
firearm during the commission of a dangerous felony. See Tenn. Code Ann. §§ 39-12-
101(a)(3), -13-202, & -17-1324(b). The case proceeded to a jury trial on October 26,
2015.
I. Pre-Trial Motion
In a pre-trial motion, the defense explained that the State planned to introduce
evidence of “some kind of beef or argument on Twitter or Facebook” between the
Defendant and the victim. The Defendant argued that it was not possible to authenticate
comments on Facebook or Twitter.1 Specifically, the Defendant argued, “Even if you
had someone from Twitter or Facebook here to associate that particular account with an
email, you would have to associate that email with the individual and that still doesn’t”
lay the proper foundation. To stress the difficulty of authenticating a Facebook or
Twitter comment, defense counsel presented the following hypothetical:
[I]f I left my [cellular] phone lying here or this computer lying here and the
device keeps me logged in to Facebook, any employee in this city-county
building could come up here and post as me on Facebook. Don’t tell
anybody that, but that could happen because it recognizes devices. If
someone borrows someone else’s phone and goes on Facebook and logs in
and doesn’t log out, they stay logged in, so when that person has the phone,
anybody could be posting as that person. I just don’t see how you can
possibly authenticate a post on Facebook and link it to any particular
individual.
Counsel for the State responded that she believed she could lay the proper foundation for
the Facebook and Twitter comments. She claimed that she would call witnesses to
introduce the Twitter records and to authenticate the Twitter and Facebook comments.
The trial court reserved judgment on the issue in order to determine “what kind of
foundation” the State would lay.
II. Trial
At trial, the following testimony took place outside the presence of the jury to
determine whether testimony regarding the evidence obtained through social media
should be admitted. Devonte Blair testified that prior to October 3, 2014, he was familiar
with the victim and that he was aware that the victim was a member of a gang called the
“Four Hundred.” Mr. Blair testified that prior to October 3, 2014, he was aware that the
1
The Defendant also argued that the evidence from Twitter or Facebook would be hearsay; however, he
does not raise this issue on appeal and concedes in his brief that the comments were not hearsay.
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Defendant was a member of the “Crips” gang, but he was unsure to which “set” the
Defendant belonged.
Mr. Blair affirmed that he was aware of the relationship between the victim and
the Defendant and described it as follows: “I mean, they had a beef going on.” When
asked how “the beef” was communicated, he responded that it was through
communications between the victim and the Defendant “on Facebook and Twitter.” Mr.
Blair explained that he did not know the nature of the conflict between the victim and the
Defendant and that he had not seen the posts on Facebook and Twitter himself. He stated
that he found out about “the beef” because “a friend” took a “screen-shot” of the posts
and sent it to him via a message on his phone. Mr. Blair testified that he was able to
identify both the victim’s and the Defendant’s individual Facebook and Twitter accounts
by the “profile picture” associated with each account. Furthermore, he explained that he
was aware that the victim’s Twitter name was “DOMO_400” and that the Defendant’s
Twitter name was “RG_LOCO.”
On cross-examination, Mr. Blair explained that the posts contained “little
animosity stuff,” such as “stuff like trying to fight.” Mr. Blair confirmed that the posts
appeared to contain an “argument” between the victim and the Defendant and that there
were “threats.”
Following Mr. Blair’s testimony, the trial court asked defense counsel to reiterate
the basis for objecting to this testimony regarding the screenshots. Counsel for the
Defendant responded that the posts were impossible to authenticate:
It’s a [social media] post possibly by someone that can’t authenticate
who the person is that posted to – just because someone’s picture is on it
doesn’t mean that they’re the one who is posting it or that it’s actually their
account, and we go one step farther in that we’re not watching a live feed
where they’re posting back and forth. Somebody took a screenshot of a
supposed argument between somebody and then messaged it to somebody
else. I just don’t see how there’s any foundation for reliability of who those
accounts belonged to and who posted it, outside of the profile picture.
Defense counsel emphasized that anyone “can create an account with somebody else’s
name” and “find a picture online and post it.” The trial court ruled that the evidence
being presented before the court was admissible and reasoned as follows:
Obviously it’s a question of weight that’s to be given [to the evidence], and
[defense counsel] can effectively cross-examine and/or argue how anybody
can create a screenshot. But if there is a picture of [the Defendant] with
some derogatory or threatening comment associated with the victim in the
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case for which he is on trial for homicide, that is relevant [and] admissible
and it’s coming in.
The jury was brought back into the courtroom, and Devonte Blair testified that he
had known the victim from attending the same middle school and growing up in the
Walter P. neighborhood in East Knoxville. Mr. Blair viewed and identified a photograph
of the victim’s body on the ground in front of an apartment. Mr. Blair confirmed that the
victim was known by the nickname “Domo.”
Mr. Blair testified that he remembered the morning of October 3, 2014. Mr. Blair
explained that he called the victim that morning to tell him that he was “fixing to walk to
[his] mama’s house,” who lived at Walter P. According to Mr. Blair, the victim indicated
that he wished to accompany Mr. Blair. Mr. Blair stated that he met the victim at the
victim’s “granny’s” house. Mr. Blair said that after meeting the victim, the two decided
to walk to Mr. Blair’s home. While the two were at Mr. Blair’s home, Mr. Blair received
a call from a friend named “D” who invited Mr. Blair and the victim to come to his
apartment. Later testimony revealed that “D” was a nickname for Adarius Fugate.
Mr. Blair testified that he and the victim arrived at Mr. Fugate’s apartment and
that Mr. Fugate went inside to use the bathroom while Mr. Blair sat in a chair and the
victim sat on the porch. Mr. Blair testified,
[T]wo or three minutes later, a car rolled down the block, I think it was a
silver Acura, and started shooting. I braced myself. I tried to kick the chair
back, and I turned around and [the victim] was already gone.
Mr. Blair explained that he heard “six gunshots.” The vehicle was an “older model
Acura” and was a “silver/beige” color. Mr. Blair claimed that he first noticed the car as
“it was creeping up from [his] peripheral, like . . . a split second before it finally like
approached [them] coming up the block.” Mr. Blair said that the car was driving slowly
as it went by at approximately “fifteen . . . miles per hour.” Mr. Blair testified that there
was a single person in the car, the Defendant. When asked what he saw the Defendant
doing, Mr. Blair replied, “He just stopped and looked at us, mugged us, and he started
shooting.” Mr. Blair said that he “couldn’t really see a gun” and that he and the victim
were simply “trying to get out of the way.”
Mr. Blair testified that prior to the incident on October 3, 2014, he had seen the
Defendant. Mr. Blair explained that he “grew up with” the Defendant. Mr. Blair also
testified that he was aware that the Defendant had a Twitter account and that the
Defendant’s Twitter name was RG_LOCO. Mr. Blair said that he knew that the account
associated with the name RG_LOCO belonged to the Defendant because it contained a
profile picture of the Defendant and “people [were] saying” that the Twitter account
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belonged to the Defendant. Mr. Blair also stated that he was aware that the Defendant
was a member of the Crips gang, but he was not sure to which set or branch the
Defendant belonged.
Mr. Blair testified that prior to the incident on October 3, 2014, he knew that the
victim had a Twitter account. He explained that he knew this because the victim had
logged into the victim’s Twitter account on Mr. Blair’s phone. He also explained that the
victim’s Twitter account was under the name of DOMO_400 and that the profile picture
on that account was a picture of the victim. Mr. Blair stated that he was aware that the
victim was a member of the Four Hundred gang and that this was a branch of the Tree
Top Piru gang.
Mr. Blair testified that prior to October 3, 2014, he was not aware of the
relationship between the Defendant and the victim. However, he conceded that he was
aware that “they didn’t like each other” and that he had seen “screenshots of their
conversations” on social media that indicated the Defendant and the victim had some sort
of conflict. Mr. Blair further described the relationship between the Defendant and
victim as follows: “It’s just basically I don’t like you, you don’t like me, if I do see you,
it’s on site, whatever.” Mr. Blair said that the term “on site” meant a “fight or anything”
and that he could not remember whether the Defendant or the victim posted this phrase
on social media.
Counsel for the State showed Mr. Blair a document containing a photograph
lineup. Mr. Blair agreed that he circled a picture of the Defendant and signed the
photograph. Mr. Blair explained that he identified the Defendant as the shooter at the
police department on October 4, 2014.
On cross-examination, Mr. Blair agreed that the shooting occurred in front of the
apartment of his friend, Mr. Fugate. Mr. Blair confirmed that on the morning of October
3, 2014, he and the victim went to Mr. Fugate’s apartment. Mr. Blair explained that
when they arrived, Mr. Fugate went inside the apartment and locked the door, and a few
minutes later a car drove by and the shooting began. Mr. Blair confirmed that after the
shooting, he called 9-1-1. Mr. Blair admitted that he told the 9-1-1 operator twice that he
did not know who the shooter was and claimed that this was “[b]ecause [he] was busy
trying to tend to” the victim. Mr. Blair agreed that on October 3, 2014, he accompanied
police officers to the station to be questioned about the shooting. Mr. Blair affirmed that
he informed the police officers that he saw a “silver Acura” and that it “rolled up and
somebody reached out and started shooting.” Mr. Blair also agreed that he told the police
that he did not know who the shooter was and that the shooting “happened real fast like
in a couple of seconds[.]” When asked why he did not tell the police who the shooter
was during the initial interview, Mr. Blair responded, “Because I was busy worrying
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about my friend dying, . . . and I was still processing stuff in my brain.” Mr. Blair
confirmed that he went to the police station for a second interview on October 4, 2014.
Michael Allen Mays testified that he was employed as the keeper of the records
for Knox County 9-1-1. Mr. Mays explained that 9-1-1 calls were recorded and
downloaded on a disc. He said that any call could be produced at any time and that each
call had a time and date stamp. Mr. Mays confirmed that he provided the Knoxville
Police Department with 9-1-1 calls concerning “the shooting incident on October 3[],
2014, at the Walter P. Taylor Homes.” A disc containing three 9-1-1 phone calls was
entered into evidence. During one of these calls reporting the shooting at Walter P., Mr.
Blair informed the 9-1-1 operator that the shooting occurred on Bethel Avenue. He
explained that someone drove by, stopped the car, and shot at him and the victim. The
operator asked him twice if he knew who the shooter was, and he said no.
Daesha Johnson testified that she knew the victim because she attended the same
high school as the victim and that she was familiar with his family. Ms. Johnson
identified the Defendant in the courtroom and testified that prior to October 3, 2014, she
knew the Defendant because he had previously dated one of her friends. Ms. Johnson
said that she was aware that the victim had a Facebook account and that she knew a
specific account belonged to him “[b]ecause [the victim] would post videos when he
woke, you know, just videos or pictures of him where he graduated, things of that
matter.” Ms. Johnson testified that she knew the Defendant had a Facebook account
“through a friend and then when [she] first [saw] where [the Defendant] directed
something towards [the victim].” She confirmed that there were “selfies” of the
Defendant on that Facebook account. Ms. Johnson testified that she was aware the
Defendant was a member of the Crips gang, but she did not know if the victim had been a
member of a gang.
Ms. Johnson offered additional testimony regarding the photographs posted on the
Defendant’s and victim’s Facebook pages. Ms. Johnson explained that the Defendant
and the victim were associated with different neighborhoods and that there were
“photographs being taken in each other’s neighborhoods.” She testified that she had
viewed a photograph on the Defendant’s Facebook page of the Defendant “in front of the
sign” at Walter P. Ms. Johnson said that the Defendant appeared to be “set tripping” and
that set tripping was “a Blood and a Crip thing.” Ms. Johnson stated that she was not
aware of the relationship between the Defendant and the victim.
Ms. Johnson testified that she was at Walter P. on October 3, 2014. She claimed
that she saw the Defendant “in the area, Walter P., with a gun.” She explained that she
was located in “Parking Lot L” when she saw the Defendant with a gun. She said that he
was “carry[ing] a pistol” and was walking “[t]owards [the victim].” Ms. Johnson said
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that a few minutes after she observed the Defendant walking, she heard “[g]unfire,
shots.” She said that when she heard the gunfire, she was leaving Walter P. and saw “a
gray Acura, four door” that was “flying down Bethel” Avenue. Ms. Johnson testified that
she did not see the gunfire, but she could tell that it was coming from the direction of
Bethel Avenue. Ms. Johnson confirmed that she did not see the Defendant shoot a gun
and that after she saw the Defendant with a gun, she did not know where he went. Ms.
Johnson testified that after hearing the gunshots and seeing the vehicle, she called
someone to determine what had happened and learned that the victim had been shot.
On cross-examination, Ms. Johnson agreed that she went to the police station on
October 12, 2014, to discuss the incident at Walter P. on October 3, 2014. She confirmed
that when she attempted to identify the Defendant in a line-up at the police station, she
was not sure if the Defendant was the man she saw on October 3, 2014. However, during
the trial, Ms. Johnson identified the Defendant as the man she saw that day and testified
that he was wearing “a dark-colored hoody” without a hat. She explained that she told
the police she “wasn’t sure” because she “didn’t want to be a part of anything” and
because she “didn’t witness [the Defendant] shoot [the victim].” Ms. Johnson also stated
that she did not want to be involved in this case because the Defendant was a gang
member. Ms. Johnson confirmed that she saw the Defendant walking toward the victim
with a gun in “a neighborhood where [the Defendant did not] belong.” Ms. Johnson
stated that she did not speak to the police on the day of the shooting because she was
unaware that “there was an argument” between the victim and the Defendant. She
explained that she originally believed the Defendant had his gun in hand “because he was
walking through a neighborhood that wasn’t his.”
Ulysses Cameron testified that he was from Knoxville and that he was familiar
with the Defendant. Mr. Cameron said that on October 3, 2014, he and his uncle drove
by Walter P. on their way home and noticed that “there were police everywhere.” When
asked what happened after that, Mr. Cameron responded,
I got on Facebook and . . . [there] was a lot of talk on Facebook, so you
know. That’s – [the Defendant], that’s a friend of mine. You know, he ran
with my little brother. You know, he cool. So you know, when they got . .
. [the Defendant’s] name out there, . . . I called him, so me and another
homie went and picked him up. You know, we was talking to [the
Defendant] and just trying to see what was going on, but I mean, . . . he
didn’t never say that he did nothing. He never said that he killed nobody.
He never showed us no gun. No – nothing like that, you know what I’m
saying. The whole time when we was talking to him, we was just sitting in
the car. You know, he was sitting there beside me. So we rode around for
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about fifteen minutes and dropped him off around the corner of my house
off Riverside.
Mr. Cameron admitted that he was a member of the Crips gang and affirmed that
the Defendant “made representations to [him] that [the Defendant] was with the Crips.”
Mr. Cameron also confirmed that there were “multiple [tele]phone calls back and forth
between [Mr. Cameron] and [the Defendant]” on October 3, 2014. Mr. Cameron testified
that he picked up the Defendant at the Defendant’s “grandmother’s house in South
Knoxville” and that while riding in the car with the Defendant he “was trying to figure
out what was going on.” Mr. Cameron testified that the Defendant revealed to him that
“he rode through” Walter P. and that the Defendant said, “some n-----s act[ed] like they
wanted to get it crackin’.” Mr. Cameron confirmed that the Defendant also made a
comment about a gun. Mr. Cameron said,
[B]eing an older guy, you know, you’ve got to give them the good side and
the bad side, you know what I’m saying. This is what’s going to happen,
this is what’s not, you know what I’m saying. So like I told him, you know
what I’m saying, if you didn’t, you ain’t got nothing to worry about. If
that’s what happened, you need to get rid of that, you know. So in the
midst of that, the question came of how to get rid of the pistol of how do I
get rid of a pistol. So with that being said, I told him he should throw it in
the river. That’s what I would have done.
On cross-examination, Mr. Cameron agreed that he had never seen the Defendant
drive a silver Acura nor had he ever known the Defendant to drive a silver Acura.
Timothy Spears testified that he went to high school at Austin-East and that he
knew the victim through school. Mr. Spears identified the Defendant and said that he
“knew of him.” Mr. Spears said that he was aware of the relationship between the victim
and the Defendant “[t]hrough Twitter accounts and stuff, and . . . recent conversations
with [the victim].” Mr. Spears recalled an incident that occurred at a fair one month
before the shooting:
It was a small incident, nothing severe. I mean, it was pretty
harmless. I guess it was a look or two exchanged from each other and at
least a sentence. [The victim] had said, what’s up, to [the Defendant]. [The
Defendant] had said, you know, what’s up, back to him, you know. And
they both left, parted ways.
Mr. Spears explained that after this exchange, the victim “seemed pretty bothered by
what [the Defendant] had said to him. I guess it was the way [the Defendant] had said
what’s up back to him. It made him feel a little bit shaken.”
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Regarding information he had gathered through Twitter, Mr. Spears testified that
the victim used Mr. Spears’s cell phone to log on to the victim’s Twitter account. Mr.
Spears said that this was how he became aware that the Defendant also had a Twitter
account. Mr. Spears stated that he never saw any photographs on either of these Twitter
accounts. When asked to describe the relationship between the victim and the Defendant
based on viewing these social media accounts, Mr. Spears said, “From me reading
different posts and stuff before they got deleted, it was pretty apparent to me that they
didn’t really like each other all that much.” He said that he specifically recalled “one day
on Twitter, [the victim was] talking about his little brother, and [the victim] had told [Mr.
Spears] that [the Defendant] had said something about his brother and it made [the
victim] mad.” Mr. Spears explained that he looked at Twitter and was only able to read
the victim’s post.
Russ Whitfield testified that he was employed in the forensic unit of the Knoxville
City Police Department. He explained that he primarily worked crime scenes and
recalled receiving a service call “to go to Walter P.” on October 3, 2014. Officer
Whitfield explained that after arriving at the scene, he discussed the case with the
responding patrol officers. Officer Whitfield observed that someone had covered the
victim’s body with a blue sheet and noticed that there were spent shell casings on the
ground, which he “marked with yellow placards” and then “photographed the general
area.” After photographing the scene, Officer Whitfield returned to the Knoxville Police
Department and contacted the “maintenance shop for the vehicles” where “spent bullets”
were recovered “from a red Volkswagen” located near the apartment porch where the
victim was shot. Officer Whitfield said that he went to the UT Forensic Center where he
“picked up a spent bullet that was recovered during the autopsy” of the victim. The
prosecutor then showed Officer Whitfield multiple photographs of the crime scene at
Walter P., which were then entered into evidence. The photographs included images of a
silver Nissan van though which a bullet had passed, a red Volkswagen with a bullet hole
on “the left rear passenger door[,]” spent shell casings, the victim covered with a blue
sheet, the victim uncovered, and photographs of the apartment and general area of the
crime scene.
Patricia M. Resig stated that she was employed with the Knoxville Police
Department as a firearms examiner assigned to the forensic unit and testified as an expert
in firearms. She explained that a firearms examiner “examines guns, bullets, and
cartridge cases, and other ammunition components that have been involved in a crime.”
Ms. Resig testified that she examined cartridge cases found at the scene and after
analyzing them, concluded that “these six cartridge cases were fired from the same
unknown gun” and that the type of gun would have been “a 40 Smith and Wesson
caliber.”
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Jeremy Maupin testified that he was employed as an investigator in the violent
crimes unit for the Knoxville Police Department. He stated that he was working on
October 3, 2014, and that he received a call to respond to Walter P. Investigator Maupin
explained that after arriving at Walter P., he observed that “the crime lab had already
responded and was already putting placards out and processing the scene.” Investigator
Maupin also observed “the victim, . . . deceased on the front porch.” He explained that
he was selected to lead the investigation and that he “started trying to gather”
information.
Investigator Maupin ascertained that Mr. Blair and Mr. Fugate were on the scene
during the shooting and that he “had them transported to the police department so [he]
could interview them later.” Investigator Maupin stated that while he continued to
investigate the crime scene, he sent two of his partners, Investigator Riddle and
Investigator Wardlaw, to “go ahead and proceed trying to get as much information” from
Mr. Blair and Mr. Fugate. Investigator Maupin said that he returned to the police station
and that the investigators had obtained the name of the Defendant by interviewing Mr.
Blair and Mr. Fugate. Investigator Maupin explained that they “started gathering up
information on [the Defendant] and pulling his photograph and any and all addresses, any
and all vehicles that attached to him, and all his family members.” He testified that he
also searched for a silver Acura but was unsuccessful in locating one.
Investigator Maupin returned to the crime scene for further investigation to “try to
talk to some neighbors trying to find out any information.” Investigator Maupin said that
after speaking with family members and neighbors at the crime scene, he “got some tips,
call-ins, some anonymous tips c[a]me in [regarding] who might have been involved.” He
said that through this investigation, the Defendant and another individual were named as
potential suspects.
Investigator Maupin testified that on October 4, 2014, he brought Mr. Blair back
to the police station for another interview. He stated that he presented Mr. Blair with a
photograph lineup and that Mr. Blair “immediately picked out” the Defendant.
Investigator Maupin also talked with the Defendant after the Defendant’s mother
contacted Investigator Maupin and brought the Defendant to the police station to be
interviewed. When asked what type of information he was trying to obtain from the
Defendant in this interview, Investigator Maupin responded that he “wanted to nail down
an alibi” for the Defendant. Investigator Maupin asked the Defendant whether he had a
cell phone and that the Defendant denied having a cell phone. Investigator Maupin said
that the Defendant told him that he “knew of [the victim] . . . but that was it[.]”
Furthermore, Investigator Maupin said that the Defendant denied having any conflict
with the victim or having problems with the victim “on any social media, Facebook, [or]
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Twitter[.]” The State introduced a video of this police interview with the Defendant and
played a portion of it for the jury.
Following this interview with the Defendant, Investigator Maupin attempted to
corroborate the Defendant’s statement. Investigator Maupin “followed up with all the
places that [the Defendant] said he went, who saw him at those locations, also verified if
he had a phone or not and started interviewing those individuals.” Investigator Maupin
said that he was able to “strongly discount [the Defendant’s] alibi.” Investigator Maupin
determined that the Defendant did have a cell phone and obtained cell phone records for
that phone. Investigator Maupin confirmed that during the interview, the Defendant
“invite[d] him to look at his Facebook account” and denied owning a gun. Investigator
Maupin also testified that he subpoenaed records from Twitter regarding the Defendant’s
account.
In a jury-out hearing, the Defendant objected to allowing the introduction of these
records, arguing that it was not possible to establish the authenticity of the records.
Defense counsel did not dispute that the records presented were records from Twitter, but
he argued that these records could not be “authentically tied to” the Defendant.
Additionally, defense counsel argued that Investigator Maupin was “not qualified to
decipher” the Twitter records. The trial court ruled that the State was permitted “to
introduce [the Twitter] records” through Investigator Maupin but that “he [was] not to
interpret the records.”
Investigator Maupin testified that during his investigation, he learned that the
Defendant had a Twitter account. He stated that an account with the name RG_LOCO
belonged to the Defendant and that an account with the name DOMO_400 belonged to
the victim. Investigator Maupin identified Twitter records associated with the two
accounts, and he testified that on RG_LOCO’s account there were references to the
victim. When asked to read from the Defendant’s Twitter records, Investigator Maupin
read the following statements:
- “I lied to @DOMO_400, haha.”
- “Domo n Kip r weenies, dey dnt got s--t on me n chaos. We put in real
wax. Dey get treated lik lil n------z by they homies, nun but respect
dis way.”
- “@DOMO_400: @raakiaa sound like a set-up.”
- “@DOMO_400: @raaakiaa rakia u cNx C xrussed no more.”
- “@DOMO_400” and a link to a website
- “@DOMO_yolo_Gray” and a link to a website
- “I think I might have to beat on Domo if still here during class change,
IDGAF, I’ve got some s—t I need to get off my chest.”
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- “Dis 40 cal gunna fold you.”
- “400 say they going to kill me, but if they waiting on me to die too die,
they going to see me waiting for a minute.”
- “Renegade loc da 1 minute army, #10toesdown.”
- “I’m going to the East Side. Who going to c in Walter C.??????”
- “St8, straight, drop dis in zip locc dat right on my waistline is where I
kept dat strap.”
The Prosecutor also asked Investigator Maupin about his knowledge regarding
gang activity in Knoxville. He responded that the Tree Top Pirus gang was a “set under
the East Side or Blood Nation” and that there were a number of Tree Top Pirus members
“in the Walter P. area” of East Knoxville. He said that another name for this gang was
the “Tree Tops 400.” Investigator Maupin also explained that there were “a whole lot of
different sets of Crips” located in South Knoxville. Investigator Maupin was able to view
photographs related to the Defendant’s Twitter account and that in one photograph “it
appear[ed] to be [the Defendant] wearing a baby blue North Carolina hat doing what
[Investigator Maupin knew] to be a gang sign.”
On cross-examination, Investigator Maupin stressed that he thoroughly
investigated this case. He recalled that Mr. Fugate told him that he was inside using the
bathroom during the shooting. Investigator Maupin admitted that “it did sound odd at
first, but when [he] found out that there w[ere] actually feces in the toilet right after the
shooting, it made [him] believe that [Mr. Fugate] really did go in to use the bathroom.”
Dr. Christopher Lochmuller stated that he was the chief deputy medical examiner
at the Knox County Regional Forensic Center and testified as an expert in forensic
pathology. Dr. Lochmuller said that he performed an autopsy on the victim and
determined that the victim’s cause of death was “a gunshot wound to the chest” and that
the manner of the victim’s death was homicide.
At the conclusion of the trial, the jury convicted the Defendant of first degree
murder, attempted first degree murder, and employing a firearm during the commission
of a dangerous felony. The Defendant was sentenced to life in prison for the first degree
murder conviction. He was sentenced to fifteen years’ incarceration for the attempted
first degree murder conviction and six years’ incarceration for the conviction of
employing a firearm during the commission of a dangerous felony, which sentences were
to be served consecutively to one another but concurrently with his life sentence. The
trial court denied the Defendant’s motion for a new trial, and he filed a timely appeal
with this court.
ANALYSIS
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I. Sufficiency
On appeal, the Defendant argues that the evidence was insufficient to support his
convictions. Specifically, he argues that the testimony of “Devonte Blair and Daesha
Johnson was not sufficiently credible for a reasonable jury to find the [Defendant] guilty
beyond a reasonable doubt.” Furthermore, the Defendant argues that the evidence was
insufficient to “establish premeditation beyond a reasonable doubt with regard to either”
the victim or Mr. Blair. According to the Defendant, if he had been at Walter P. on the
morning of the shooting, then “he would still not have a basis to know exactly where [the
victim] and [Mr.] Blair would happen to be at 10:30 in the morning.” The Defendant also
contends that none of the social media evidence provides “a basis for why either [Mr.]
Blair or [the victim] would be targeted by the [Defendant] for a murder.” The State
responds that the evidence was sufficient for the jury to find that the Defendant was
guilty of first degree murder and attempted first degree murder. Specifically, the State
argues that a “jury’s verdict . . . resolves all conflicts in favor of the State, and this [c]ourt
has repeatedly held that it will not usurp the jury’s credibility determinations.” We agree
with the State.
An appellate court’s standard of review when the Defendant questions the
sufficiency of the evidence on appeal is “whether, in 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). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty
verdict “removes the presumption of innocence and replaces it with a presumption of
guilt, and [on appeal] the defendant has the burden of illustrating why the evidence is
insufficient to support the jury’s verdict.” Id., State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). “This [standard] applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
“Direct and circumstantial evidence should be treated the same when weighing the
sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
The reason for this is because with both direct and circumstantial evidence, “a jury is
asked to weigh the chances that the evidence correctly points to guilt against the
possibility of inaccuracy or ambiguous inference[.]” Id. at 380 (quoting Holland v.
United States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal
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of a conviction is not to contemplate all plausible inferences in the [d]efendant’s favor,
but to draw all reasonable inferences from the evidence in favor of the State.” State v.
Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).
As relevant here, “[f]irst degree murder is . . . a premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a). Premeditation is
an act done after the exercise of reflection and judgment. “Premeditation”
means that the intent to kill must have been formed prior to the act itself. It
is not necessary that the purpose to kill preexist in the mind of the accused
for any definite period of time. The mental state of the accused at the time
the accused allegedly decided to kill must be carefully considered in order
to determine whether the accused was sufficiently free from excitement and
passion as to be capable of premeditation.
Tenn. Code Ann. § 39-13-202(d).
The element of premeditation is a factual question to be decided by a jury from all
the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614
(Tenn. 2003). Although a jury may not engage in speculation, it may infer premeditation
from the manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our
supreme court has held that factors demonstrating the existence of premeditation include,
but are not limited to, the following: the declaration of the intent to kill, the procurement
of a weapon, the use of a deadly weapon upon an unarmed victim, the fact that the killing
was particularly cruel, the infliction of multiple wounds, the making of preparations
before the killing for the purpose of concealing the crime, the destruction or secretion of
evidence, and calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401,
409 (Tenn. 2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additional factors
cited by this court from which a jury may infer premeditation include lack of provocation
by the victim and the defendant’s failure to render aid to the victim. See State v. Lewis,
36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Further, “[e]stablishment of a motive for the
killing is a factor from which the jury may infer premeditation.” State v. Leach, 148
S.W.3d 42, 54 (Tenn. 2004).
“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 otherwise 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). Furthermore, “[i]t is an offense to employ a firearm during the [c]ommission
of a dangerous felony.” Tenn. Code Ann. § 39-17-1324(b). “Dangerous felony means
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[a]ttempt to commit first degree murder, as defined in §§ 39-12-101 and 39-13-202.” Id.
§ (i)(1)(A).
The identity of the perpetrator is an essential element of any crime. State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975)). The State has the burden of proving “the identity of the defendant as the
perpetrator beyond a reasonable doubt.” State v. Sneed, 908 S.W.2d 408, 410 (Tenn.
Crim. App. 1995)). The identity of the defendant as the perpetrator may be established
by direct evidence, circumstantial evidence, or a combination of the two. Thompson, 519
S.W.2d at 793. The identification of the defendant as the perpetrator is a question of fact
for the jury after considering all the relevant proof. State v. Strickland, 885 S.W.2d 85,
87 (Tenn. Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim.
App. 1982)).
Here, there is sufficient proof to support the Defendant’s convictions for first
degree murder and attempted first degree murder. Mr. Blair identified the Defendant as
the man who shot at him and who killed the victim. Ms. Johnson testified that shortly
before the shooting, she observed the Defendant walking through a parking lot at Walter
P. carrying a gun, a neighborhood to which she claimed that he did not belong. Mr.
Cameron testified that soon after the shooting, he picked up the Defendant in his vehicle,
and the Defendant asked him how to get rid of a gun. When Investigator Maupin
attempted to verify the Defendant’s alibi for the morning of October 3, 2014, he was able
to “strongly discount it.” Additionally, Investigator Maupin discovered that the
Defendant owned a cell phone, despite his denying having one. The medical examiner
determined that the victim died because of a gunshot wound, and the firearms examiner
testified that the type of gun was “a 40 Smith and Wesson caliber.” One of the
Defendant’s Twitter posts said, “Dis 40 cal gunna fold you.”
Furthermore, there is sufficient evidence that the Defendant acted with
premeditation with regards to the victim and Mr. Blair. The Defendant shot at both men
from a car while the victim and Mr. Blair were seated on an apartment porch. Both the
victim and Mr. Blair were unarmed. Mr. Blair testified that the Defendant drove by in a
silver Acura, “stopped and looked at [the victim and Mr. Blair], mugged [them], and he
started shooting.” The Defendant shot at both men multiple times, as evidenced by the
spent shell casings found at the scene near the porch on which the victim and Mr. Blair
were sitting.
Moreover, Mr. Blair and Mr. Spears testified that there was some sort of conflict
between the Defendant and the victim. Also, Investigator Maupin testified that the
Defendant’s Twitter records revealed references to a conflict between the Defendant and
the victim. In one such post, the Defendant wrote that he “might have to beat on
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Domo[,]” which was a nickname for the victim. Furthermore, several witnesses testified
that the Defendant and the victim were members of separate gangs. This included
Investigator Maupin, who testified that the Defendant and the victim were members of
different gangs and that he discovered evidence of conflict between the two men.
The proof is also sufficient to support the Defendant’s conviction for employing a
firearm during the commission of a dangerous felony. As previously discussed, there is
ample evidence to establish that the Defendant committed attempted first degree murder
of Mr. Blair. Furthermore, there is sufficient evidence that the Defendant used a firearm
during the attempted first degree murder. Mr. Blair testified that the Defendant shot at
him, and Ms. Johnson saw the Defendant with a gun near the scene of the crime shortly
before the shooting. Also, there was testimony regarding spent shell casings found at the
scene.
There is sufficient evidence to identify the Defendant as the perpetrator of first
degree murder, attempted first degree murder, and employing a firearm during the
commission of a dangerous felony. Furthermore, the proof established that the Defendant
acted intentionally and with premeditation when he shot at both the victim and Mr. Blair.
Thus, the Defendant is not entitled to relief on this issue.
II. Authentication
The Defendant argues that the trial court should have excluded witnesses’
testimony regarding what they learned from viewing social media content.2 Specifically,
the Defendant argues that the social media comments cannot conclusively be attributed to
the Defendant. Furthermore, the Defendant contends that this case is distinguishable
from the facts of State v. Vermaine M. Burns, No. M2914-00357-CCA-R3-CD, 2015
WL 2105543 (Tenn. Crim. App. May 5, 2015) (holding that there was sufficient
circumstantial evidence to authenticate Facebook chats and email). The State responds
that there was sufficient evidence to authenticate the social media posts and attribute
them to the Defendant. We agree with the State.
Tennessee Rule of Evidence 901(a) provides that “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to the court to support a finding by the trier of fact that the matter in
question is what its proponent claims.” Evidence may be authenticated through
“[t]estimony that a matter is what it is claimed to be” or “[a]ppearance, contents,
2
The Defendant separates the witnesses’ testimony regarding social media and the Twitter records into
two separate issues, but we will address the admissibility of this evidence together.
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substance, internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances.” Tenn. R. Evid. 901(b)(1), (4).
In Melissa L. Bright Dockery v. Kevin Carl Dockery, Sr., No. E2009-01059-
COA-R3-CV, 2009 WL 3486662 (Tenn. Ct. App. Oct. 29, 2009), the Court of Appeals
held that MySpace messages were properly admitted at trial when the messages were sent
from the defendant to his friend, Ms. Lowe, and she had subsequently printed out their
conversation. Ms. Lowe testified that she printed the messages directly from her
computer and stated that the “printouts showed exactly what [the defendant] said, as well
as what she said.” Dockery, 2009 WL 3486662, at *6.
Furthermore, a panel of this court has addressed the issue of authenticating
evidence found on social media websites. See Burns, 2015 WL 2105543. In that case,
the defendant argued that Facebook chats and emails containing a photo of a penis were
not properly authenticated “because the State failed to exclude the possibility that
someone else authored the messages.” Id. at *10. In analyzing the issue, the Burns court
considered cases from several other jurisdictions, who dealt with similar authentication
issues regarding social media. Id. at *11-12.
For example, in Griffin v. State, 19 A.3d 415 (Md. 2011), the Court of Appeals of
Maryland recognized the difficulties regarding authenticating evidence from social media
when analyzing whether the prosecution had authenticated printouts from the defendant’s
girlfriend’s MySpace profile, which allegedly contained a threat to one of the State’s
witnesses: “The concern arises because anyone can create a fictitious account and
masquerade under another person’s name or can gain access to another’s account by
obtaining the username and password.” Id. at 421. The Court of Appeals of Maryland
held that the “picture of [the defendant’s girlfriend], coupled with her birth date and
location, were not sufficient ‘distinctive characteristics’ on a MySpace profile to
authenticate its printout, given the prospect that someone other than [the Defendant’s
girlfriend] could have not only created the site, but also posted the [purported threat].”
Id. at 424. The Court of Appeals of Maryland offered the following example as a
possible manner by which such evidence could be authenticated: “search the computer of
the person who allegedly created the profile and posting and examine the computer’s
internet history and hard drive to determine whether that computer was used to originate
the social network profile and posting in question.” Id. at 427.
Determining whether social media evidence has been authenticated requires fact
specific analysis. The Burns court noted several other cases from other jurisdictions that
held that evidence from social media and emails was authenticated when the prosecution
offered corroborating circumstantial evidence. See In re F.P., 878 A.2d 91 (Pa. 2005)
(holding that transcripts of instant messages between the defendant and the victim were
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properly authenticated after considering the following facts: the defendant identified
himself by first name and threatened physical violence against the victim in the
transcripts, the victim reported the threats to school authorities, staff at the school met
with the defendant regarding the threats, the defendant sent another instant message
regarding that school meeting, and the defendant’s brother testified that he saw the
defendant assault the victim); Commonwealth v. Purdy, 945 N.E.2d 372 (Mass. 2011)
(holding that email exchanges initiated from the defendant’s email account, containing
the defendant’s name, found on the hard drive of the defendant’s computer were properly
authenticated); People v. Clevenstine, 891 N.Y.S.2d 511, 514 (N.Y. App. Div. 2009)
(holding that sexually explicit MySpace instant message communications between the
defendant and the victims were properly authenticated when both victims testified they
had discussed sexually explicit topics via MySpace with the defendant, police recovered
copies of these conversations from the hard drive of one of the victim’s computers, the
defendant’s wife testified that she found such conversations on the defendant’s MySpace
account, and a representative from MySpace testified that the accounts in question were
created by the victims and the defendant); Tienda v. State, 358 S.W.3d 633, 642-45 (Tex.
Crim. App. 2012) (holding circumstantial evidence was sufficient to authenticate
evidence from MySpace postings). Additionally, in Tienda, the Texas Court of Criminal
Appeals responded to the defendant’s argument that the prosecution was unable to
authenticate that the MySpace postings were tied to the defendant:
Conceivably some unknown malefactors somehow stole the
appellant’s numerous self-portrait photographs, concocted boastful
messages about David Valadez’s murder and the circumstances of that
shooting, was aware of the music played at Valadez’s funeral, knew when
the appellant was released on pretrial bond with electronic monitoring and
referenced to that year-long event along with stealing the photograph of the
grinning appellant lounging in his chair while wearing his ankle monitor.
But that is an alternate scenario whose likelihood and weight the jury was
entitled to assess once the State had produced prima facie showing that it
was the appellant, not some unidentified conspirators or fraud artists, who
created and maintained these MySpace pages.
Id. at 646.
In Burns, this court compared the facts of that case to the facts of these cases from
other jurisdictions and concluded that there was “sufficient circumstantial evidence to
authenticate the Facebook chats and emails in question.” Id. at *12. In its analysis, this
court considered the following facts: “[t]he [d]efendant admitted that the Facebook
account used to send the chats belonged to him”; the investigating detective
“independently verified that the Facebook account belonged to the [d]efendant by
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comparing the Facebook profile picture, user ID number, and associated email address
with those of the Facebook account that sent chats to [the victim]”; and “[t]ranscripts of
the ‘exact’ same chats were found on both the [d]efendant’s and the victim’s computer
hard drives.” Id. Furthermore,
[w]ith regard to the emailed photographs, the [d]efendant admitted
that the Hotmail account belonged to him and that the password to the
account was not “remembered,” requiring someone to enter a password
each time they logged into the account. Further, it was the same email
address to which the sender instructed [the victim] to send photos. The
Hotmail email address was also associated with the [d]efendant’s Facebook
account and tied to the T-Mobile Blackberry. Additionally, the same
Hotmail account was open when police executed the search warrant, and
the Hotmail email address was listed on the [d]efendant’s résumé. Photos
sent via email by [the victim] were found on the [d]efendant’s computer,
and the photo of a black man’s penis was found on the [d]efendant’s
Blackberry, as well as [the victim’s] computer hard drive. The time-date
stamps of the photos matched the times the chats were sent to their
respective recipients.
Id.
The court in Burns held that “[t]o the extent that the [d]efendant argues that the
State was required to affirmatively prove that the [d]efendant was the author of the
message, we agree with reasoning from other jurisdictions that such challenge goes to the
weight of the evidence, not its admissibility.” Id. (citing Tienda, 358 S.W.3d at 646;
Purdy, 945 N.E.2d at 381-82; Clevenstine, 891 N.Y.S.2d at 514).
Here, multiple witnesses testified that the evidence obtained from social media
was clearly tied to the Defendant. Mr. Blair testified that he knew the Defendant had a
Twitter account and that he knew this account to be under the name of RG_LOCO
because the account had a profile picture of the Defendant and others had told him that
this account belonged to the Defendant. Mr. Blair also testified that he knew the victim
had a Twitter account under the name of DOMO_400 because the victim had used Mr.
Blair’s phone to log on to Twitter the morning of the shooting. Mr. Blair was also
confident that this account belonged to the victim because he knew the victim to be a
member of the Tree Top 400 gang. Also, Mr. Blair saw a screenshot of a social media
posts indicating that the Defendant and the victim possessed animosity towards each
other. Ms. Johnson testified that based upon posts and self-photographs she had seen on
Facebook, she knew that both the Defendant and the victim had active Facebook
accounts. Specifically, she testified that she saw a picture of the Defendant posed in front
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of the Walter P. sign posted on his Facebook page. Mr. Cameron testified that on the
morning of the shooting, he looked on Facebook and discovered that the Defendant might
have been in the Walter P. area. It was after Mr. Cameron discovered this information on
Facebook that he called the Defendant and asked if he needed a ride.
Mr. Spears testified that he was aware of the conflict between the Defendant and
the victim through “Twitter and stuff” and “recent conversations” with the victim. Mr.
Spears said that the victim used Mr. Spears phone to log on to Twitter, and that after this,
Mr. Spears knew that the victim had a Twitter account. Mr. Spears stated that he also
saw Twitter posts from the Defendant. Additionally, he recalled an incident about one
month prior to the shooting in which the Defendant and the victim encountered each
other at a fair, and the victim appeared to be “shaken” after the altercation.
Finally, Investigator Maupin testified that during his investigation, he learned that
the Defendant had a Twitter account under the username RG_LOCO and that the victim
had a Twitter account using the name DOMO_400. Investigator Maupin subpoenaed
Twitter records associated with these accounts and found multiple posts by RG_LOCO
corroborating the evidence that the Defendant and the victim were each members of rival
gangs and that there was hostility between them. The Defendant had an opportunity to
cross-examine each of these witnesses, and counsel for the defense argued that due to the
nature of electronics and social media, someone other than the Defendant could have
made these social media posts. However, we agree with the Burns court and hold that
this is a matter of the weight of the evidence. Accordingly, we conclude that there was
circumstantial evidence to authenticate the Twitter records and the witnesses’ testimony
regarding Facebook and Twitter accounts.
III. Admissibility
Additionally, the Defendant argues that the Twitter records and testimony
regarding what witnesses observed on social media were inadmissible under Tennessee
Rule of Evidence 403. The State responds that the evidence obtained from social media
was not substantially outweighed by the danger of unfair prejudice. We agree with the
State.
The general admissibility of evidence is governed by Tennessee Rules of Evidence
401 and 403. Under these rules, the trial court must determine, first, whether the
evidence offered is relevant. Tenn. R. Evid. 401. Evidence is deemed 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. Although relevant evidence is generally admissible, see
Tennessee Rule of Evidence 402, it “may be excluded if its probative value is
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substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence[.]” See Tenn. R. Evid. 403; State v. Banks, 564
S.W.2d 947, 950-51 (Tenn. 1978).
The term “unfair prejudice” has been defined as “[a]n undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional one.”
Banks, 564 S.W.2d at 950-51. This court has also stated that “[p]rejudice becomes unfair
when the primary purpose of the evidence at issue is to elicit emotions of ‘bias,
sympathy, hatred, contempt, retribution, or horror.’” State v. Collins, 986 S.W.2d 13, 20
(Tenn. Crim. App. 1998) (quoting M. Graham, Handbook of Federal Evidence, 182-83
(2d ed. 1986)).
Here, the trial court determined that this evidence was relevant and not unduly
prejudicial. While evidence that the Defendant had a conflict with the victim in his
homicide trial is damaging to the Defendant, it is not unduly prejudicial. Such evidence
established the relationship between the Defendant and the victim and premeditation. We
conclude that the trial court cannot be said to have abused its discretion by admitting the
Twitter records and social media testimony into evidence. We agree that the probative
value of this evidence was not substantially outweighed by its danger of unfair prejudice.
Accordingly, the Defendant is denied any relief on this issue.
CONCLUSION
Based upon consideration of the foregoing and the record as a whole, we affirm
the judgments of the trial court.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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