State of Tennessee v. Angela Ayers ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 3, 2015 Session
STATE OF TENNESSEE v. ANGELA AYERS
Appeal from the Criminal Court for Shelby County
No. 12-03161 J. Robert Carter, Jr., Judge
No. W2014-00781-CCA-R3-CD - Filed July 16, 2015
The Defendant, Angela Ayers, was found guilty by a Shelby County Criminal Court jury of
voluntary manslaughter, false report, and employing a firearm during the commission of a
dangerous felony, Class C felonies. See T.C.A. §§ 39-13-211 (2014), 39-16-502 (2014), 39-
17-1324 (2010) (amended 2012). The trial court sentenced the Defendant as a Range I,
standard offender to six years for the manslaughter conviction, which was to be suspended
to probation after two years’ confinement, to four years for the false report conviction, which
was to be suspended to probation after two years’ confinement, and to six years’ confinement
at 100% service for the firearm conviction. The court ordered the six-year sentence for the
firearm conviction to be served consecutively to the other sentences, for an effective twelve-
year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to
support her convictions for voluntary manslaughter and false report, (2) the indictment
relative to the firearm conviction is insufficient, (3) the trial court erred by excluding proof
of the victim’s abusing the Defendant and her son, (4) the trial court erred relative to expert
medical testimony, and (5) the trial court erred by refusing to provide the jury with a self-
defense instruction. We affirm the judgments of the trial court relative to the voluntary
manslaughter and false report convictions, but we reverse the judgment, vacate the
conviction, and dismiss the charge for employing a firearm during the commission of a
dangerous felony.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part; Reversed in Part; Vacated and Dismissed in Part; Case Remanded
R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and T IMOTHY L. E ASTER, JJ., joined.
M. Haden Lawyer (on appeal and at trial) and Andrew Plunk (at trial), Memphis, Tennessee,
for the appellant, Angela Ayers.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Patience Branham and Kenya
Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case relates to a domestic disturbance in which the victim, Tario Graham, died
from a single gunshot wound to the head. Angelica Mitchell, the victim’s sister, testified that
the Defendant was the mother of the victim’s younger son, who was five years old at the time
of the trial. She said the Defendant and the victim’s relationship spanned about ten years.
She never saw the Defendant and the victim argue and thought they had a good relationship.
She said the victim was tall, slim, and had stomach problems, although she did not know any
details.
Earl Jones, the victim’s cousin, testified that on February 23, 2012, he picked up the
victim at home early that morning. The men went to the lumberyard to buy materials for the
victim’s house. The men returned to the victim’s house around 10:00 a.m., and Mr. Jones
said the Defendant, her and the victim’s son, and her sister were there. The Defendant and
the victim began arguing. Mr. Jones walked outside, and the Defendant’s sister left. Mr.
Jones said the argument was about women. He heard the Defendant say she wanted the
victim out of the house and the victim say that he did not want to argue. Mr. Jones sat on the
hood of a car parked in the driveway and waited for the victim. The argument lasted about
three minutes, and Mr. Jones saw the victim leave the house and run toward the back of the
house. The victim returned to the front of the house about fifteen to twenty minutes later.
Mr. Jones testified that after the victim ran toward the back of the house, he heard a
gunshot from inside the house. He told the victim that the Defendant had fired a gun, and
the victim told Mr. Jones that the Defendant was not going to do anything. The victim began
walking down the sidewalk toward a convenience store and told Mr. Jones to join him. Mr.
Jones said the victim was walking in front of him when the Defendant came out of the house,
walked behind them, yelled, cursed the victim, and accused the victim of knocking out her
tooth. Mr. Jones said the Defendant yelled, “You, B----, you knocked my teeth out of my
mouth,” “You want to fight now,” “Why you running now,” and “Come on back and fight.”
Mr. Jones saw the Defendant holding a gun. The Defendant told Mr. Jones to move, and the
Defendant attempted to fire the gun, but it misfired. Mr. Jones said the Defendant fired the
gun again, and the victim fell to the ground. Although he did not know where the victim had
been shot, he assumed the Defendant shot the victim in the back of the head because the
victim had not been facing the Defendant.
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Mr. Jones testified that when the victim fell, the Defendant ran to the victim, talked
about what she had done, returned home, changed her clothes, and returned to the scene.
While the Defendant was gone, someone driving a truck stopped next to the victim, who was
lying in the street, to prevent drivers from running over him. The Defendant talked to the
first responders at the scene, and Mr. Jones heard the Defendant tell them that the victim had
been hit by a car. The Defendant did not have the gun at that time.
Mr. Jones identified the clothing the Defendant wore at the time of the shooting and
testified that the Defendant did not have any visible blood on her clothes before the shooting.
Mr. Jones did not see the victim hit the Defendant. He said the victim was short, weighed
about 120 pounds, and suffered from stomach ulcers. Mr. Jones said the victim did not have
a gun that day and denied ever seeing the victim carry a gun. He said that the day of the
shooting was the first time he had seen the Defendant carry a gun.
On cross-examination, Mr. Jones testified that although he left the house when the
victim and the Defendant began to argue, he heard the argument from outside the house. He
heard what he thought was a physical altercation, but he denied hearing them argue about
anything other than the victim’s cheating. He heard tussling and wrestling from inside the
house. He said the Defendant did not have any injuries when he and the victim returned from
the lumberyard. He said that the Defendant “was talking crazy” and screaming when she left
the house with the gun. On redirect examination, he clarified that he looked at the Defendant
when he saw the gun, that he saw the Defendant pull the trigger twice, and that after the gun
fired, he looked at the victim, who fell.
Terrell Randle testified that on February 23, 2012, he lived across the street from the
Defendant and the victim. He knew the victim but was never introduced to the Defendant.
He said that before the shooting, he was working on his car. He said he saw Mr. Jones and
the victim walking down the street, and the Defendant was following them. He heard the
Defendant yell, “M.F. it’s your last time hitting me. You ain’t going to do it no more[.]” He
said the victim and Mr. Jones did nothing in response to the Defendant’s yelling and
continued walking down the street. He said the Defendant was a couple feet behind them,
and she did not appear to have any injuries.
Mr. Randle testified that the Defendant had a small object in her hand when she left
the house. He said that the victim and Mr. Jones walked out of his sight and that he heard
a gunshot. Mr. Randle walked to the victim’s location, and he said the Defendant ran past
him and toward her house. He noticed the Defendant wore sweat pants and a shirt. When
Mr. Randle arrived at the victim’s location, he saw the victim lying in the street and said the
victim did not respond when he called out the victim’s name. He said the Defendant
returned, was frantic and shocked, and said someone hit the victim with a car. He noticed
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the Defendant had changed her clothes and was wearing camouflage shorts. The Defendant
did not have a gun when she returned, but he noticed the Defendant had “a bloodstain on her
lip.”
On cross-examination, Mr. Randle testified that he did not know what occurred after
the victim and Mr. Jones walked out of his sight but before he heard the gunshot. He and the
Defendant did not speak. He said that when the Defendant returned to where the victim was
lying in the street, she seemed disturbed and emotional.
Edwin Boswell testified that on the day of the shooting, he was at “the candy lady’s
house” located across the street from the Defendant and the victim’s house. Mr. Boswell and
the victim were good friends, and he met the Defendant through the victim. He did not
witness the shooting. On cross-examination, Mr. Boswell testified that he had spent
considerable time at the Defendant and the victim’s house and that he never saw them fight.
He did not recall providing a statement to the police or telling the police he saw the
Defendant and the victim running down the street.
Darren Turner testified that he was working outside at the time of the shooting. He
saw the victim walk down the street and the Defendant walk behind the victim. He heard a
gunshot and ran to the victim’s location. He said the Defendant told him to call the police
and ran to her house. The Defendant returned to the scene, and Mr. Turner said she had a
“receiver” in her hand and said, “Come on, Tario. I’m sorry. I’m sorry, Baby.” He said that
when he first saw the Defendant, she was wearing camouflage shorts but was wearing
jogging pants when she returned. On cross-examination, Mr. Turner testified that the
Defendant was upset and yelling when she returned to the scene.
Josea Franklin, Sr., testified that on the day of the shooting, he was across the street
from the Defendant and the victim’s house visiting his cousin, Sherry Talbert. He arrived
at Ms. Talbert’s house between 11:00 a.m. and 12:00 p.m. and said he saw the victim and
another man walking down the street about five minutes later. Mr. Franklin saw a woman,
whom he did not know, follow the men. He said the woman yelled and cursed that “she was
tired of B.S. and that’s the last time you put your hands on me.” He said the victim and the
other man continued walking down the street as the woman yelled. He recalled the men did
not turn and look at the woman. He did not witness the shooting, but he saw the woman run
toward and enter the victim’s house and return to the scene. He said that when the woman
returned to the scene, she had changed clothes and that she said the victim was hit by a car
and asked those present which car hit the victim. He recalled the woman wore jogging pants
before the shooting and shorts afterward. He was unable to identify the woman because he
had never seen her at close range before that day.
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On cross-examination, Mr. Franklin testified that the woman was upset and agitated
when he saw her following the men down the street. He recalled the woman said, “I’m tired
of you hitting me. This is the last time hitting me.” He did not witness the shooting or hear
the gunshot. He saw people running down the street and followed them.
Memphis Police Communications Supervisor Pamela Rowlett identified two recorded
9-1-1 calls that the police received relative to the shooting. In the first recording, a woman
requested the police and an ambulance respond to the scene. The caller reported that a
woman had shot a man, who was lying in the street. The woman said the shooter was
African-American, was wearing black pants and a yellow shirt, and ran into a house nearby.
In the second recording, a male caller reported that someone had been shot and that the
victim looked deceased. The caller did not witness the shooting.
Memphis Fireman and Paramedic Steve Pecaitis, Jr., testified that he responded to the
scene of the shooting after being flagged down by a passerby. He and his partner were only
told that the victim was lying in the street. He initially thought the victim had been hit by a
car because no obvious signs of injury were visible. After the victim was placed inside the
ambulance, Mr. Pecaitis found a large laceration on the forehead. Upon cleaning the wound,
he found signs of possible entrance and exit gunshot wounds to the right and left brow areas,
which were connected by the laceration. The victim was breathing at that time but was non-
responsive. Mr. Pecaitis saw a skull fragment and brain matter and slightly compressed the
wound to control the bleeding. The victim’s condition worsened en route to the hospital, and
he stopped breathing before arriving at the hospital. Mr. Pecaitis said, though, the victim
was alive when they arrived.
Memphis Police Officer Shane Evans testified that he responded to the shots-fired call
and that he was told the responsible person was at a house nearby. When he arrived, the
Defendant ran down the street and screamed, “He got hit by a car. He got hit by a car.” He
said the Defendant looked frantic but was not crying or upset. He recalled the Defendant
wore a yellow shirt. Officer Evans drove his police car to the scene of the shooting and
found the paramedics treating the victim.
Officer Evans testified that he spoke to several witnesses at the scene who provided
statements that were inconsistent with the victim’s being hit by a car. Officer Evans said he
spoke to the Defendant again and asked her what occurred. He noted the Defendant’s calm
demeanor and said she admitted shooting the victim. The Defendant told the officer that her
younger son and the gun she used to shoot the victim were inside her house. The Defendant
told the officer that she and the victim argued and that the victim hit her. Although Officer
Evans did not notice initially any injuries to the Defendant, he saw facial swelling where the
Defendant said the victim struck her.
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On cross-examination, Officer Evans testified that he told the paramedics that the
victim had been hit by a car based on the Defendant’s statement. On redirect examination,
he said that the Defendant’s statement caused confusion. He said that when he arrived at the
victim’s location, a car was parked a few feet away and that he thought a pedestrian might
have been struck by the car. He said shootings were less common than a car striking a
pedestrian.
Memphis Police Officer Sondra Wicks testified that she responded to the scene to
assist other officers. Although Officer Wicks did not speak to the Defendant, she saw the
Defendant from a distance. She recalled the Defendant wore extremely short shorts and a
small t-shirt. While standing outside the Defendant and the victim’s house, she saw a young
boy crying and standing just inside the front door. When she learned the boy was inside the
house alone, she unsuccessfully attempted to enter. Officer Wicks said the Defendant’s
mother came to the house and was able to instruct the boy how to unlock the door. Officer
Wicks did not allow the boy and grandmother to enter the house, but she entered to obtain
a coat for the boy and pants for the Defendant because it was cold that day. When Officer
Wicks learned the Defendant had been wearing the pants earlier that day, she returned the
pants to the living room where she found them. She said that when she grabbed the pants
from the sofa, a pair of red underwear fell from them. Officer Wicks did not touch the
underwear.
Memphis Police Officer Brandon Westrich testified that he detained the Defendant
after he arrived at the scene. He identified the Defendant’s cell phone and blue hooded
sweatshirt. He transported the Defendant to the police station and said she appeared calm
and quiet and did not speak to him.
On cross-examination, Officer Westrich testified that the Defendant was inside a
police cruiser when he arrived at the scene. He identified photographs of the Defendant’s
forehead, elbow, left side of her body, mouth, and clothes she wore at the time of her arrest.
The photographs showed a cut to her forehead, a possible injury to her elbow, dried blood
on her mouth, and swollen lips.
Memphis Crime Scene Officer Tristan Brown testified that he processed the scene,
the victim, and the victim and the Defendant’s house. He found an empty gun holster in a
bedroom and a .22-caliber Smith & Wesson revolver inside a toilet tank in a bathroom. He
identified an envelope containing six live .22-caliber rounds and one fired .22-caliber
cartridge casing found inside the house. He identified red underwear, white tennis shoes, and
a black telephone recovered from the victim and the Defendant’s house.
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On cross-examination, Officer Brown clarified that the tennis shoes were recovered
from a driveway next door to the Defendant and the victim’s house. He did not know who
owned the shoes but said a police officer at the scene thought the shoes might have belonged
to the Defendant and might have had blood on them. Relative to the firearm found in the
toilet tank, he said that the toilet tank lid was broken before he arrived and that the revolver
was in plain view.
Dr. Miguel Laboy, Shelby County Assistant Medical Examiner and expert in forensic
pathology, testified that Dr. Caruso performed the victim’s autopsy before Dr. Caruso was
hired as the Chief Medical Examiner in Denver, Colorado. Dr. Laboy reviewed the autopsy
and toxicology reports and photographs taken during Dr. Caruso’s autopsy of the victim,
which were received as exhibits. After reviewing the reports and photographs, Dr. Laboy
concluded that the cause of death was a gunshot wound to the head. He agreed with Dr.
Caruso’s conclusion that the manner of death was homicide.
Dr. Laboy identified photographs of the entry wound and testified that the bullet
entered above the right eye and traveled slightly from right to left. He said that the bullet
perforated the brain and that the orbital bones around the eyes and the base of the skull were
fractured. He noted the bullet was recovered from the left rear side of the head. He said the
autopsy report noted that the victim had a laceration on the side of the eye and abrasions on
the right arm, left elbow, and left leg. The victim’s toxicology analysis showed the presence
of marijuana and isopropyl alcohol.
On cross-examination, Dr. Laboy testified that he could not perform an autopsy
without examining a body and that he was not present during the victim’s autopsy. He
became involved in this case days before the trial and said he reviewed Dr. Caruso’s file the
morning of his testimony. He said that before the victim arrived at the medical examiner’s
office, his heart, lungs, kidneys, liver, adrenal glands, pancreas, and a portion of his small
intestines were removed for organ donation. He did not believe that an evaluation of those
organs would have indicated a different cause of death because the organs had to be viable
to be transplanted. He agreed, though, he did not review any documentation relative to the
organs’ conditions at the time of harvest.
Dr. Laboy testified that no exit wound was documented in the autopsy report or in the
photographs. He concluded that the victim was not shot in the back of the head. He said that
the report showed no soot or stippling, but he was not comfortable giving an opinion about
the distance between the victim and the gun at the time of the shooting. He said the alcohol
present in the victim’s blood was consistent with his receiving medical treatment.
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On redirect examination, Dr. Laboy testified that regardless of the condition of the
organs harvested for transplant, the cause of death was the gunshot wound to the head. He
said that it was unlikely someone would have survived such an injury and that if someone
had survived, he or she would have been in a vegetative state.
Tennessee Bureau of Investigation (TBI) Special Agent Cervinia Braswell, an expert
in firearms identification, testified that she analyzed a .22-caliber Smith & Wesson revolver,
two fired cartridge casings, six unfired live bullets, and the fired bullet recovered during the
victim’s autopsy. She test-fired the revolver to make comparisons. She concluded that the
bullet recovered during the autopsy had been fired from the revolver. She also concluded
that the fired cartridge casings submitted for analysis had the same class characteristics and
some of the same individual characteristics and that the casings could have been fired from
the revolver, although she could not make a conclusive determination.
Arianne Stewart testified for the defense that she and the Defendant were coworkers
and that she had purchased narcotics from the victim. On February 23, 2012, Ms. Stewart
arrived at the Defendant and the victim’s house between 12:00 and 1:00 p.m. While Ms.
Stewart was there, the Defendant and the victim argued about the garbage and something the
Defendant found on the victim’s cell phone. Ms. Stewart heard the Defendant ask the victim
to take out the garbage before he left, and the victim refused. Ms. Stewart was in the kitchen
when the argument began in the bedroom. She saw the victim leave the house and return
immediately and said the victim began hitting the Defendant, called her “b----” and “w----,”
and called her older son “slow.” Ms. Stewart said the physical altercation began in the living
room near the kitchen area. She saw the victim pull the Defendant’s hair, put the Defendant
on the floor, and kick and hit the Defendant while she was on the floor. Ms. Stewart said the
Defendant was bleeding and had a “busted” lip after the altercation. The Defendant and the
victim’s son was also present during the altercation.
Ms. Stewart testified that she did not intervene during the altercation because she
feared the victim, who was possessive and controlling. She stayed in the kitchen during the
incident and said the Defendant did not hit the victim. After the incident, the victim left the
house, and the Defendant went to the bathroom to clean her face. Ms. Stewart waited a few
minutes and left without speaking to the Defendant. She returned to the area after the
shooting. She stated that the Defendant did not own a firearm.
On cross-examination, Ms. Stewart testified that she left the house around 1:00 p.m.,
after waiting five to ten minutes. She was worried but said the Defendant did not call the
police. She said the Defendant and the victim’s son was on the couch when the Defendant
went to the bathroom. Ms. Stewart saw the victim and his cousin standing beside a car when
she left.
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The Defendant testified that on February 23, 2012, she awoke and took her older child
to school. After she returned, the victim and her younger son awoke. The victim smoked
marijuana and told the Defendant he was going to his grandparents’ house to stay with his
grandmother while his grandfather ran an errand. While the victim was gone, he called the
Defendant and told her that his cousin was coming to the house to purchase heroin.
Although the Defendant told the victim that she would handle it, the Defendant told the
cousin that the victim took the drugs with him. The Defendant said she lied because she did
not want to sell drugs. The Defendant said the victim was mad when he returned, obtained
the drugs, and left again.
The Defendant testified that Ms. Stewart arrived around 12:00 p.m., that they talked
for a while, and that Ms. Stewart entered the kitchen about the time the victim returned. The
Defendant said that they were in the process of renovating their house and that the victim
complained the work to the house would not be completed if he had to come home every
time someone wanted to buy drugs. The Defendant said that the conversation became heated
and that she told the victim too much activity occurred at their house. She said the victim
became angry, and she mentioned the victim’s refusing to take out the garbage. The victim
told her to have her older son take out the trash. The Defendant said the victim called her son
“stupid,” which angered her. She said that “this [was] not the first time that [the victim had]
done this . . . . He’s hit my son before.” The Defendant was hurt and embarrassed by the
victim’s comment about her son. She said, “F--- you,” to the victim, who began hitting her.
The Defendant said she saw the victim’s rage, which she had seen throughout their
relationship. She said the victim hit her in the mouth and head with his fist, knocking her to
the floor. The victim kicked her after she fell. Afterward, the victim left the house, and the
Defendant got up from the floor. The Defendant said that her head hurt and that she was
humiliated and angry. She picked up the victim’s gun from the bedroom and left the house.
The Defendant testified that after she left the house, she saw the victim and his cousin
walking down the street. The Defendant said she was angry because she had endured the
victim’s abuse for about seven years and because the victim had also abused her son. She
said the victim did not allow her to have friends, did not allow her mother at their house, and
disrespected her family. The Defendant said she was also hurt and humiliated because the
victim had hit her and insulted her son on the day of the shooting, although the victim had
said he would no longer do those things.
The Defendant testified that she did not know what she was going to do with the gun.
Although she was angry and hurt, she said she loved the victim. She said she gave the victim
everything and did whatever he asked. She said that three weeks before the shooting, they
fought when she told the victim she wanted to leave. She said the victim told their son to go
to his room because “your mama about to get her a-- beat tonight.” The Defendant told the
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victim that she did not want to sell drugs for him anymore and wanted the victim to change.
The victim told the Defendant, “I’m going to change . . . don’t leave. When we get your
taxes, we’re going to fix up the house. It’s going to work.” The Defendant said she thought
of all these things as she walked down the street behind the victim.
The Defendant testified that she yelled at the victim as she walked behind him. She
asked him why he hit her yet again and in front of their child. She said she only wanted to
know why he had hit her, although he had said he would not place his hands on her again.
She followed the victim to the corner of the street and continued to yell at him. She said she
usually did not disrespect the victim because she knew the consequences. She knew people
were outside watching and said it must have angered the victim, who did not tolerate
disrespect. She said “grown men” feared the victim. As the Defendant continued yelling,
the victim stopped and turned. She said she pulled out the gun, closed her eyes, and fired the
gun when she saw the victim coming toward her. She said she fired the gun because the
victim was coming toward her, which scared her. She denied wanting to kill him and said
she was not thinking clearly or about what would happen when she fired the gun.
The Defendant testified that she could not believe she had shot the victim and that she
ran to him, called his name, and repeatedly said, “Baby, baby, what have I done[?] What
have I done?” She said that although the victim was abusive, she loved him and would never
have hurt him. The victim was the father of one of her children, and their relationship
spanned many years. She said she put the victim’s needs before anyone else’s needs. She
said that after she realized the victim had been shot in the head, she urinated on herself.
After she yelled for someone to call for an ambulance, she ran home and lost one of her shoes
on the way. Once she arrived home, she called 9-1-1, reported that the victim had been hit
by a car because a bystander said the victim had probably been hit by a car, changed her
underwear and pants, and placed the gun in the toilet tank. She said she placed the gun in
the toilet tank because she was scared and did not want the gun in her possession. She said
she was frantic and in disbelief of the events.
The Defendant testified that she returned to the scene and that she told the paramedics
to help the victim. After the victim was transported to the hospital, she told the police he was
hit by a car because she was scared of what she had done. She did not speak to the officers
again, and she was arrested that day. She consented to a search of her home after the police
threatened not to release her children to her family. She identified photographs of injuries
to her mouth from the victim’s hitting her and to her elbow from falling to the floor after the
victim hit her. The Defendant stated that at the time she pulled out the gun, she thought of
all the times the victim hit and hurt her, the embarrassment she felt from other people
witnessing the abuse, and the anger she felt from the victim’s calling her son stupid and
hitting her son with an extension cord. She said that she was hurt, angry, and humiliated and
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that the same things occurred repeatedly with the victim. She said that she “saw stars” and
“was seeing red” and that she was not thinking clearly and did not intend to kill the victim.
On cross-examination, the Defendant testified that her relationship with the victim
lasted six years. When questioned about the lack of police reports relative to previous
incidents of domestic assault, the Defendant stated that the victim “jumped on” her when she
was pregnant and that she told the police the victim had an open warrant for domestic
violence for jumping on a previous girlfriend. She agreed she did not call the police on the
day of the shooting after the victim hit her and said she was too scared to call the police most
of the time.
The Defendant testified that the house contained drugs and many guns at the time the
police searched it. The gun she used was kept in the bedroom, and she knew it was loaded.
She agreed her younger son was inside the house when the victim struck her and said
afterward she was not thinking clearly when she obtained the gun from the bedroom. She
admitted she did not know what her son was doing at that time. She denied, though, wanting
to kill the victim. She recalled placing the gun inside her pants. She agreed the victim was
not inside the house when she obtained the gun but said she was always in fear of the victim
and did not know if he was still nearby. She agreed she walked outside with the gun and
followed the victim down the street. She denied telling Mr. Jones to get out of the way.
Although she agreed the gun misfired once, she denied thinking about killing the victim. She
said that she felt as though she experienced déjà vu because the victim hit her three weeks
before the shooting. She discussed the cycle of violence, including the victim’s apologizing
and making promises, which were ultimately always broken. She said she had endured
enough.
The Defendant testified that she and the victim did not argue about the victim’s dating
other women. She denied she looked through the victim’s cell phone and said, “You don’t
touch [the victim’s] phone.” She said Ms. Stewart was in the kitchen when the victim struck
her, and Mr. Jones was outside the house. She said that as she walked behind the victim and
Mr. Jones, she cried and yelled at the victim. She admitted she placed the gun in the toilet
tank to hide it.
Memphis Police Sergeant Thomas Mote testified in rebuttal that he obtained and
executed the search warrant at the Defendant and the victim’s house. He said a pair of red
underwear, a gun holster, a Smith & Wesson .22-caliber revolver, and a residential cordless
telephone were seized during the search. He said no drugs or additional firearms were found.
On cross-examination, he stated that he did not participate in the search but that he oversaw
the operation. He agreed that it was possible the officers missed something and that the
search warrant specified the police were looking for only one gun.
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Memphis Police Sergeant Daniel Cordero testified that he spoke to Candice Ayers,
the Defendant’s sister, at the scene and that Ms. Ayers was upset and had been crying. He
identified photographs of Ms. Ayers’s cell phone, which showed an outgoing call to the
Defendant at 11:21 a.m. and an incoming call from the Defendant at 1:05 p.m. on the day of
the shooting.
Candice Ayers testified that she spoke with the Defendant twice on the day of the
shooting. Ms. Ayers called the Defendant during Ms. Ayers’s morning drive to work, and
she received a call from the Defendant later that afternoon. During the first conversation, the
Defendant discussed her children and her relationship with the victim. The Defendant was
upset and told Ms. Ayers that she and the victim had argued the previous night and the
morning of the shooting, although the Defendant did not state the subject of the argument.
Ms. Ayers said the Defendant admitted during their second conversation that she shot the
victim.
On cross-examination, Ms. Ayers testified that during the first conversation, the
Defendant did not mention any violence from the victim. She said that during the second
conversation, the Defendant mentioned the physical altercation with the victim.
Upon this evidence, the Defendant was convicted of voluntary manslaughter, false
report, and employing a firearm during the commission of a dangerous felony. This appeal
followed.
I
Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support her convictions
for voluntary manslaughter and false report to a police officer. She does not challenge her
firearm conviction on this basis. The State argues that the evidence is sufficient. We agree
with the State.
In determining the sufficiency of the evidence, the standard of review is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier
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of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The 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)).
Voluntary manslaughter is defined as “the intentional or knowing killing of another
in a state of passion produced by adequate provocation sufficient to lead a reasonable person
to act in an irrational manner.” T.C.A. § 39-13-211(a). Whether an act is committed under
adequate provocation is a question of fact for the jury. State v. Johnson, 909 S.W.2d 461,
464 (Tenn. Crim. App. 1995). As relevant here, a person acts intentionally “when it is the
person’s conscious objective or desire to engage in the conduct or cause the result.” T.C.A.
§ 39-11-302(a) (2014). A person acts knowingly “when the person is aware that the conduct
is reasonably certain to cause the result.” Id. § 39-11-302(b). In the context of voluntary
manslaughter, intent is shown if the defendant has the desire to cause the victim’s death or
acts with an awareness that her conduct is reasonably certain to cause the victim’s death. See
State v. Page, 81 S.W.3d 781, 790-93 (Tenn. Crim. App. 2002).
It is a crime, in relevant part, “for any person to [i]nitiate a report or statement to a law
enforcement officer concerning an offense or incident within the officer’s concern knowing
that [t]he offense or incident reported did not occur[.]” T.C.A. § 39-16-502(a)(1)(A). A
statement is defined as “any representation of fact.” Id. § 39-16-501(2) (2014). The statute
“encompasses not only reports volunteered or initiated by individuals to law enforcement .
. . , but also false statements made in response to ‘a legitimate inquiry’ by a law enforcement
officer.” State v. Walter Lee Hicks, Jr., No. M2013-01410-CCA-R3-CD, 2014 WL 2902277,
at *7 n.3 (Tenn. Crim. App. June 26, 2014), perm. app. denied (Tenn. Oct. 22, 2014).
In the light most favorable to the State, the record reflects that at the trial, the
Defendant admitted fatally shooting the victim after a physical altercation. The Defendant
and the victim argued about her reluctance to sell drugs for the victim and the victim’s
refusal to take out the garbage. The victim insulted the Defendant’s older son, and Ms.
Stewart testified that the victim called the Defendant degrading names. The verbal argument
escalated into a physical altercation in which the victim hit the Defendant in the mouth and
the head, knocking the Defendant to the floor, and kicked her after she fell. Photographs of
the Defendant taken on the day of the shooting provide corroboration of the physical
altercation, and Mr. Jones and Ms. Stewart testified that the Defendant and the victim
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engaged in a physical altercation minutes before the shooting. Likewise, Ms. Stewart
testified that the Defendant’s lip was bleeding after the assault.
After the physical altercation, the Defendant testified that she felt humiliated, hurt,
and angry and that she picked up the victim’s loaded gun from the bedroom. The Defendant
said that she was not thinking clearly after the assault because she could only think about the
abuse she and her older son had endured from the victim during their seven-year relationship.
The Defendant thought of the victim’s controlling behavior, which included preventing her
from having friends and family visit her home. Furthermore, the Defendant thought of the
victim’s broken promises of never laying his hands on her again. She recalled that three
weeks before the shooting, the victim told their son to go to his room because the Defendant
was going “to get her a-- beat tonight.”
As the Defendant walked down the street behind the victim and Mr. Jones and while
carrying a gun, she yelled at the victim. Mr. Jones testified that the Defendant acted “crazy”
and yelled at the victim that he had knocked out her tooth. Mr. Randle and Mr. Franklin
testified that the Defendant screamed at the victim that he had hit her for the last time and
that the Defendant was upset and agitated. The Defendant testified that as she walked behind
the victim, she thought about how much she loved the victim and her anger that she had been
physically abused again and in front of their child. The Defendant said that she only wanted
to know why the victim had broken his promise not to hit her again and that she realized she
had endured enough abuse. She stated that when she pulled out the gun, she was thinking
of all the times the victim physically abused her, the embarrassment she felt because other
people had witnessed the abuse, and the anger she felt from the victim’s verbally and
physically abusing her older son. The Defendant said that she saw red and stars when she
pulled out the gun, that she was not thinking clearly, and that she did not intend to kill the
victim.
We conclude that the evidence is sufficient to support the jury’s verdict. The
Defendant intentionally engaged in the conduct leading to the victim’s fatal injury. The
Defendant’s grabbing a gun, following the victim down the street, and firing the gun after
it misfired shows her conscious objective to engage in the conduct that caused the victim’s
death. Further, the evidence also reflects that the Defendant was aware her use of the gun
was reasonably certain to cause the victim’s death. She knew the gun was loaded, pointed
it at the victim, and fired it. Other notable factors that evidence an intent to cause the
victim’s death include the Defendant’s arming herself with a gun after the victim left the
house, seeking the unarmed victim who had removed himself from the house where the
physical altercation occurred, telling Mr. Jones to move out of the way before shooting the
victim, and pulling the trigger a second time after the gun misfired. Likewise, the victim’s
physically abusing the Defendant and her emotional reaction to the physical altercation
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before the shooting provides sufficient evidence for the jury to have found that the Defendant
acted pursuant to adequate provocation to act in an irrational manner in killing the victim.
The Defendant is not entitled to relief on this basis.
Relative to the false report conviction, the record reflects that when Officer Evans
arrived at the scene, the Defendant ran down the street and screamed the victim had been hit
by a car. The Defendant testified that she told the police that the victim had been hit by a car
because she was scared of what she had done. Her statements were unsolicited by Officer
Evans. Officer Evans spoke to witnesses at the scene, and they provided statements
inconsistent with the victim’s being hit by a car. When Officer Evans later questioned the
Defendant, she admitted shooting the victim and told the officer where the gun was located.
We conclude that the evidence is sufficient to support the Defendant’s false report
conviction. Our supreme court has concluded after reviewing the legislative history of
subsection (a)(1)(A), the basis for the Defendant’s conviction, that the intent was to
“proscribe[] the initiation of a false statement or report to a law enforcement officer[.]” State
v. Smith, 436 S.W.3d 751, 770 (Tenn. 2014); see T.C.A. § 39-16-502(a)(1)(A). Although the
Defendant argues that the evidence is insufficient because her statement that the victim had
been hit by a car was not made in response to a legitimate inquiry by a police officer, the
Defendant was not indicted or convicted pursuant to subsection (a)(2), which would have
required the State to prove beyond a reasonable doubt that the Defendant’s false statement
was made in response to a legitimate law enforcement inquiry. Instead the Defendant was
indicted pursuant to subsection (a)(1)(A), which required proof that the Defendant initiated
a false statement to a police officer when she knew the incident she reported did not occur.
See Walter Lee Hicks, Jr., 2014 WL 2902277, at *7. The evidence reflects that the
Defendant told Officer Evans that the victim had been struck by a car. The Defendant knew
this was false because she shot the victim, ran home, disposed of the revolver, changed her
clothes, and returned to the scene. The Defendant is not entitled to relief on this basis.
II
Sufficiency of the Indictment Relative to the Firearm Conviction
The Defendant contends that her conviction for employing a firearm during the
commission of a dangerous felony should be dismissed because the indictment did not
specify the alleged underlying dangerous felony and because she was not indicted for any
dangerous felony specified in Tennessee Code Annotated section 39-17-1324(i)(1). The
State responds that the Defendant was provided sufficient notice of the underlying dangerous
felony because voluntary manslaughter is the only lesser included offense of first degree
murder that is an enumerated dangerous felony.
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Our federal and state constitutions require a criminal defendant be provided
information of “the nature and cause of the accusation.” U.S. Const. amend. VI; Tenn.
Const. art. I, § 9. Generally, an indictment is valid if it contains adequate information “(1)
to enable the accused to know the accusation to which answer is required, (2) to furnish the
court adequate basis for the entry of a proper judgment, and (3) to protect the accused from
double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citing State v. Byrd, 820
S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim. App.
1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)). Furthermore,
Tennessee Code Annotated section 40-13-202 requires an indictment to “state the facts
constituting the offense in ordinary and concise language . . . in a manner so as to enable a
person of common understanding to know what is intended and with that degree of certainty
which will enable the court, on conviction, to pronounce the proper judgment.” T.C.A. § 40-
13-202 (2014). “However, this [c]ourt has recognized that an indictment that cites Tennessee
Code Annotated section 39-17-1324, but does not name the specific predicate felony, may
not be sufficient to provide notice of the crime charged because of the multiple possible
predicate felonies listed in the statute.” State v. Willie Duncan, No. W2013-02554-CCA-R3-
CD, 2014 WL 4243746, at *6 (Tenn. Crim. App. Aug. 27, 2014) (citing State v. Demeko
Gerard Duckworth, No. M2012-01234-CCA-R3-CD, 2013 WL 1933085, at *21 (Tenn.
Crim. App. May 10, 2013), perm. app. denied (Tenn. Oct. 17, 2013)), perm. app. granted
(Tenn. Feb. 13, 2015).1
It is a crime “to employ a firearm during the [c]ommission of a dangerous felony[.]”
T.C.A. § 39-17-1324(b)(1). Dangerous felonies are delineated by our statutes and at the time
of the shooting, the felonies included attempt to commit first degree murder, attempt to
commit second degree murder, voluntary manslaughter, carjacking, especially aggravated
kidnapping, aggravated kidnapping, especially aggravated burglary, aggravated burglary,
especially aggravated stalking, aggravated stalking, initiating the process to manufacture
methamphetamine, the sale, manufacture, distribution, or possession with the intent to sell,
manufacture, or distribute a controlled substance, and any attempt to commit a dangerous
felony. Id. § (i)(1)(A)-(M) (2010). Although the statute requires that a charge of violating
subsection (b) “be pled in a separate count of the indictment . . . and tried before the same
jury and at the same time as the dangerous felony,” the statute is silent relative to whether the
underlying dangerous felony must be identified in the indictment. Id. § (d); see Demeko
Gerard Duckworth, 2013 WL 1933085, at *21. In the context of sufficiency of an
indictment, the appellate courts, however, are not permitted to examine the evidence at the
1
The Tennessee Supreme Court has granted the State’s application for permission to appeal,
which focuses, in relevant part, on whether the State must specify an enumerated felony in an
indictment count charging a violation of Code section 39-17-1324. See State v. Willie Duncan, No.
W2013-02554-SC-R11-CD (Tenn. Feb. 3, 2015) (order).
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“trial to determine which felonies may be disqualified under section 1324(c).” Willie
Duncan, 2014 WL 4243746, at *9.
In Demeko Gerard Duckworth, the defendant was indicted for two counts 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 alleged to have occurred in July 2010.
The indictment count relative to the firearm violation did not specify an underlying
dangerous felony. This court stated, “Generally, an indictment for a violation of Code
section 39-17-1324 that does not name the underlying dangerous felony does not provide the
defendant with adequate notice of the crime charged. This is so even when the indictment
. . . tracks the statutory language of Code section 39-17-1324 and names the statute[.]”
Demeko Gerard Duckworth, 2013 WL 1933085, at *21. This court explained that failure to
identify the underlying dangerous felony provided inadequate notice because Code section
39-17-1324 identifies multiple dangerous felonies. Id. This court concluded that the
indictment count alleging a violation of employing a firearm during the commission of a
dangerous felony, viewed in isolation, was invalid because it failed to identify the underlying
dangerous felony from Code section 39-17-1324. Id. However, this court concluded that the
indictment count was “saved” because only one of the three remaining counts in the
indictment, attempted first degree murder, charged an offense that qualified as a dangerous
felony for purposes of the statute. Id.; see T.C.A. § 39-17-1324(i)(1)(A) (2010) (showing
attempted first degree murder was a dangerous felony at the time of the offense).
Likewise, this court reached a similar conclusion in State v. Rhakim Martin, No.
W2013-02013-CCA-R3-CD, 2015 WL 555470, at *7-8 (Tenn. Crim. App. Feb. 10, 2015),
perm. app. granted (Tenn. May 15, 2015).2 In the two-count indictment, the defendant was
charged with carjacking and employing a firearm during the commission of a dangerous
felony. This court concluded that although a dangerous felony might not be named in the
count charging employing a firearm during the commission of a dangerous felony, a
defendant is provided adequate notice of the applicable dangerous felony when the remaining
counts in the indictment charge only one underlying dangerous felony as specified in Code
section 39-17-1324(i). Id. at *8; see T.C.A. § 39-17-1324(i)(1)(D) (2010) (showing that
carjacking was a dangerous felony at the time of the offense).
2
The order granting the defendant’s application for permission to appeal states that our
supreme court is “particularly interested” in “whether the failure to name the predicate felony of the
firearm offense voids” the respective count in the indictment. See State v. Rhakim Martin, No.
W2013-02013-SC-R11-CD (Tenn. May 15, 2015) (order).
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In State v. Eric Williams, No. W2013-01593-CCA-R3-CD, 2015 WL 1453389 (Tenn.
Crim. App. Mar. 27, 2015), no perm app. filed, the two-count indictment charged the
defendant with first degree premeditated murder and employing a firearm during the
commission of a dangerous felony. Although the jury acquitted the defendant of the firearm
charge and no issue was raised on appeal, this court noted that the prosecution failed to name
an underlying dangerous felony in the indictment relative to the firearm violation and that
first degree murder was not an enumerated felony in Code section 39-17-1324(i)(1). Id. at
*1 n.1. The trial court charged the jury that it could find the defendant guilty of the firearm
violation only if it found him guilty of voluntary manslaughter as a lesser included offense
of first degree murder. Although this court noted that voluntary manslaughter was an
enumerated dangerous felony, it concluded that the indictment count relative to the firearm
violation was void for lack of notice because it failed to provide the defendant with adequate
notice of the charge against him. Id. (citing Demeko Gerard Duckworth, 2013 WL 1933085,
at *19-22); see T.C.A. § 39-17-1324(i)(1) (Supp. 2009) (reflecting that first degree murder
was not a dangerous felony at the time of the offense in December 2009).
By contrast, in State v. Alvin Brewer and Patrick Boyland, Nos. W2012-02281-CCA-
R3-CD and W2012-02282-CCA-R3-CD, 2014 WL 1669807, at *28 (Tenn. Crim. App. Apr.
24, 2014), perm. app. denied (Tenn. Sept. 18, 2014), this court concluded that the defendants
were not provided adequate notice of the underlying dangerous felony relative to the
employing a firearm during the commission of a dangerous felony violation because the
indictment did not identify the dangerous felony and because the defendants were also
indicted for especially aggravated kidnapping and aggravated burglary, both of which were
enumerated dangerous felonies at the time of the offenses in late 2010. See T.C.A. § 39-17-
1324(i)(1)(E), (H) (2010). As a result, when the prosecution fails to identify the underlying
dangerous felony in an indictment relative to a violation of Code section 39-17-1324 and
when a defendant is indicted for multiple offenses that are also dangerous felonies as defined
in Code section 39-17-1324, the indictment count relative to the firearm violation is
insufficient because it fails to provide notice of which offense the State is relying upon as the
dangerous felony. Alvin Brewer and Patrick Boyland, 2014 WL 1669807, at *28 (citing
State v. Larry Jereller Alston, et al., No. E2012-00431-CCA-R3-CD, 2013 WL 2382589
(Tenn. Crim. App. May 30, 2013)); see Willie Duncan, 2014 WL 4243746, at *8 (concluding
that the defendant was not provided adequate notice of the dangerous felony when the
indictment failed to identify the dangerous felony and when the indictment also charged the
defendant with aggravated burglary and especially aggravated kidnapping, both of which
were dangerous felonies at the time of the offense in December 2011). This court noted that
its holding was not based on the premise that a defendant might have to prepare defenses to
multiple offenses but that the rationale stemmed from the notion an indictment that fails “to
fully state a crime,” renders all subsequent proceedings void. Alvin Brewer and Patrick
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Boyland, 2014 WL 1669807, at *29 (citing State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim.
App. 1992)).
In the present case, the State argues that because voluntary manslaughter is a lesser
included offense of first degree murder and is an enumerated dangerous felony in Code
section 39-17-1324, the Defendant received adequate notice of the underlying dangerous
felony. See T.C.A. § 40-18-110(g)(2) (2012) (stating voluntary manslaughter is a lesser
included offense of first degree murder). The State correctly argues that generally, a
defendant receives adequate notice that he or she might be convicted of a lesser included
offense of the indicted offense. See State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001) (stating
that a defendant is not entitled to distinct notice that she might be convicted of a lesser
included offense). We agree that the Defendant was provided adequate notice that she might
face conviction for voluntary manslaughter as a lesser included offense of the indicted first
degree murder charge based on the evidence presented at the trial. We note, though, that the
issue in the present appeal is framed in the context of sufficiency of the indictment for
employing a firearm during the commission of a dangerous felony, not sufficiency of the
evidence. The State’s argument is in stark contrast to the notion that an indictment which
fails to state a criminal violation fully renders all subsequent proceedings void. See Alvin
Brewer and Patrick Boyland, 2014 WL 1669807, at *29 (citing Perkinson, 867 S.W.2d at
5).
In State v. Shawn Thompson, No. M2013-01274-CCA-R3-CD, 2014 WL 2609535,
at *5 (Tenn. Crim. App. June 11, 2014), no perm. app. filed, the defendant was indicted, in
relevant part, for attempted first degree murder for an incident occurring in June 2010, at
which time attempted first degree murder was an enumerated dangerous felony in Code
section 39-17-1324. See T.C.A. § 39-17-1324(i)(1)(A) (Supp. 2009). The indictment
specified that the underlying dangerous felony relative to a violation of Code section 39-17-
1324 was attempted first degree murder. The jury, however, convicted the defendant of the
lesser included offense of attempted voluntary manslaughter, which was also an enumerated
dangerous felony. See id. § 39-17-1324(i)(1)(C), (M) (Supp. 2009). This court concluded
that no variance existed between the indictment charging attempted first degree murder and
the proof at trial resulting in a conviction for attempted voluntary manslaughter because
“[a]ttempted voluntary manslaughter is a lesser-included offense of attempted first degree
murder.” Shawn Thompson, 2014 WL 2609535, at *6; see State v. Antoine Perrier, No.
W2011-02327-CCA-MR3-CD, 2013 WL 1189475, at *10 (Tenn. Crim. App. Mar. 22, 2013)
(upholding convictions for employing a firearm during the commission of a dangerous felony
and attempted voluntary manslaughter, a lesser included offense of the indicted offense
attempted second degree murder, when attempted second degree murder and attempted
voluntary manslaughter were enumerated dangerous felonies at the time of the offense in
February 2010), perm. app. dismissed (Tenn. Feb. 7, 2014); see also State v. Andrianne
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Kiser, No. W2011-01937-CCA-R3-CD, 2012 WL 6115087 (Tenn. Crim. App. Dec. 10,
2012) (upholding convictions for employing a firearm during the commission of a dangerous
felony and attempted voluntary manslaughter, a lesser included offense of the indicted
offense attempted second degree murder, when attempted second degree murder and
attempted voluntary manslaughter were enumerated dangerous felonies at the time of the
offense in April 2010), perm. app. denied (Tenn. May 7, 2013).
We conclude that in the context of sufficiency of the indictment, the prosecution’s
failure to identify an underlying dangerous felony in the indictment count relative to a
violation of Code section 39-17-1324 provided the Defendant inadequate notice of the crime
charged. See Demeko Gerard Duckworth, 2013 WL 1933085, at *21. The statute contains
multiple dangerous felony offenses, and the indictment count contained no additional
information relative to the underlying dangerous felony upon which the State would rely at
the trial. The only remaining counts in the indictment were first degree murder and false
report, which were not enumerated dangerous felonies. The indictment count relative to
Code section 39-17-1324 is insufficient because the remaining counts in the indictment did
not allege a violation of any enumerated dangerous felony. See id.; see also T.C.A. § 39-17-
1324(d). The common thread between the cases we have cited is that although an indictment
count relative to a violation of Code section 39-17-1324 might not specify the dangerous
felony relied upon by the State, a single additional count in the indictment charging an
offense that is also an enumerated dangerous felony provides a defendant adequate notice,
rendering an indictment sufficient. In other words, it is the separately charged dangerous
felony that saves the indictment count relative to a violation of Code section 39-17-1324.
Although our courts have upheld convictions for employing a firearm during the
commission of a dangerous felony when the separate indicted offense was not an enumerated
dangerous felony in Code section 39-17-1324, those cases did not involve an issue related
to sufficiency of the indictment. For example, in State v. Lorenzo McLemore, III, No.
M2010-01189-CCA-R3-CD, 2012 WL 695325, at *10-12 (Tenn. Crim. App. Feb. 6, 2012),
perm. app. denied (Tenn. May 16, 2012), the defendant was indicted, in relevant part, for
three counts of attempted first degree murder and one count each of especially aggravated
burglary and employing a firearm during the commission of a dangerous felony. We note
that at the time of the offenses, attempted first degree murder was not an enumerated
dangerous felony but that especially aggravated burglary was an enumerated dangerous
felony. See T.C.A. § 39-17-1324(i)(1)(F) (Supp. 2007). The defendant was convicted of
three counts of the lesser included offense attempted voluntary manslaughter. A mistrial was
declared relative to the especially aggravated burglary, and the jury convicted the defendant
of the firearm violation in relation to the attempted voluntary manslaughter convictions. See
id. § (i)(1)(B), (L) (Supp. 2007) (showing attempted voluntary manslaughter was a dangerous
felony at the time of the offense). The issue on appeal was framed in the context of
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sufficiency of the evidence, and this court concluded that the evidence was sufficient to
sustain a conviction for the firearm violation during the commission of an attempted
voluntary manslaughter. Lorenzo McLemore, III, 2012 WL 695325, at *8.
In State v. Darquan Swift, No. W2011-02439-CCA-R3-CD, 2013 WL 3291884, at
*10 (Tenn. Crim. App. June 24, 2013), perm. app. denied (Tenn. Nov. 14, 2013), this court
considered the defendant’s argument that Code section 39-17-1324 generally could not be
applied to lesser included offenses. The defendant was indicted for attempted first degree
murder, especially aggravated robbery, attempted especially aggravated robbery, aggravated
robbery, attempted aggravated robbery, and employing a firearm during the commission of
a dangerous felony. We note that as in the present case, at the time of the offenses in Swift
on July 20, 2009, none of the indicted offenses were enumerated dangerous felonies. See
T.C.A. § 39-17-1324(i)(1) (Supp. 2008). Relative to the attempted first degree murder
charge, the defendant was convicted of the lesser included offense of attempted second
degree murder, which was an enumerated dangerous felony and the basis for the firearm
violation. See id. § (i)(1)(A) (Supp. 2008). Raised in the context of the prohibition against
ex post facto application of laws, the defendant argued the prosecution could not rely on the
lesser included offense of which he was convicted to satisfy Code section 39-17-1324
because the indicted offense of attempted first degree murder was not an enumerated
dangerous felony at the time of the offenses. This court affirmed the defendant’s firearm
conviction and stated that the defendant’s contention was based on the theory that Code
section 39-17-1324 “is an ‘enhancement’ statute that ‘change[s] punishment or inflict[s]
greater punishment than the law annexed to the crime when committed.’” Darquan Swift,
2013 WL 3291884, at *11. This court concluded that the claim was without merit. Id.
In any event, Demeko Gerard Duckworth, Rhakim Martin, and Eric Williams reflect
this court’s concern with the prosecution’s practice to indict a defendant for a violation of
Code section 39-17-1324 without identifying the underlying dangerous felony and without
providing any indication of which dangerous felony it will rely upon at a trial. In the context
of sufficiency of an indictment, we are not permitted to examine the evidence presented at
the trial to determine what offense might apply to the firearm violation. See Willie Duncan,
2014 WL 4243746, at *9. Our sole concern is whether an indictment provides a defendant
with adequate notice of the charges.
In the present case, the State’s failure to identify the underlying dangerous felony in
the indictment and its failure to charge an offense that was also a dangerous felony fail to
provide adequate notice relative to the indicted firearm violation. Allowing the State to
indict a defendant for a non-enumerated dangerous felony offense and to rely on that offense
as a basis for obtaining a conviction for a violation of Code section 39-17-1324 in the event
a jury convicts a defendant of an applicable lesser included offense deprives a defendant of
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adequate notice of the alleged offense. See Demeko Gerard Duckworth, 2013 WL 1933085,
at *21; see also Eric Williams, 2015 WL 1453389, at *1 n.1. When the State chooses to
indict for a violation of Code section 39-17-1324 without naming an enumerated dangerous
felony and chooses not to indict separately for an enumerated dangerous felony, the
indictment fails to provide adequate notice of the crime charged relative to Code section 39-
17-1324. See Alvin Brewer and Patrick Boyland, 2014 WL 1669807, at *29 (citing
Perkinson, 867 S.W.2d at 5). As a result, we reverse the Defendant’s conviction for
employing a firearm during the commission of a dangerous felony, vacate the conviction, and
dismiss the charge.
III
Evidence of Prior Abuse
The Defendant contends that the trial court erred by excluding proof of the victim’s
abusing the Defendant and her older son. She argues that her right to a fair trial was denied
because the victim’s abuse contributed to her state of mind at the time of the shooting and
that the evidence was necessary for the jury to determine whether it was reasonable for her
“to be provoked or to feel that her use of force was necessary.” The State responds that the
evidence is irrelevant and inadmissible character evidence.
In a jury-out hearing before the State rested its case-in-chief, defense counsel
requested permission to present evidence during his case-in-chief of previous instances of
physical abuse by the victim in an effort to establish the Defendant’s state of mind at the time
of the shooting. The trial court stated that counsel was attempting to present evidence of
specific instances of conduct pursuant to Tennessee Rule of Evidence 608 in an effort to
establish the victim’s character. The court questioned whether witnesses who might have
seen an incident of physical abuse months before the shooting could show the Defendant’s
state of mind at the time of the shooting. The court stated that the Defendant was the only
witness who could establish her state of mind. Counsel argued, though, that witnesses could
testify relative to what they saw and that the Defendant could testify how those incidents
affected her state of mind.
The trial court found that any previous incident of abuse was irrelevant to the case
because the Defendant was not presenting a battered wife syndrome defense. Defense
counsel reminded the court that the Defendant’s state of mind and whether she acted in the
heat of passion were relevant to self-defense and to voluntary manslaughter. The court
agreed but found that “under the relevant character evidence[,] it’s not admissible proof
conduct.” The court reasoned that counsel was attempting to establish specific instances of
conduct by the victim and that “it’s not just a free range . . . to start calling witnesses to say
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any bad thing they think . . . or that they’ve heard about the deceased.” Counsel noted for
the court that the evidence would be limited to the abuse the Defendant suffered at the hands
of the victim, which led to her state of mind during the final incident of abuse on the day of
the shooting. The court stated that it would permit counsel to present the evidence in the
form of an offer of proof if counsel could convince the court that the evidence of the victim’s
other crimes, wrongs, or acts was relevant.
At a later jury-out hearing, defense counsel argued that the Defendant reasonably
feared the victim, that they were in an abusive relationship, that many previous incidents of
abuse occurred, and that one incident occurred on the day of the shooting. Counsel argued
the defense was permitted to present evidence of the victim’s character related to this point
pursuant to Tennessee Rule of Evidence 404(a). The trial court interjected that based upon
the State’s proof, the court was finding that self-defense did not apply because no reasonable
juror could find the Defendant was in fear of imminent danger at the time of the shooting.
The court noted that the Defendant’s carrying a gun in public was unlawful.
The trial court stated that it would permit defense counsel to present evidence as long
as the incidents were not too remote. The court said the evidence was relevant to the
Defendant’s mental state at the time of the shooting and whether she acted with
premeditation or in the heat of passion. The court also found, though, that incidents of abuse
that occurred “significantly before” the shooting had no bearing on her state of mind at the
time of the shooting. Counsel again argued he was permitted to present such evidence
pursuant to Rule 404(a)(2). He stated that he was not offering evidence of prior abuse to
show the victim’s propensity for abuse but rather to show the effect of the abuse on the
Defendant and the Defendant’s reaching her breaking point on the day of the shooting.
Although the court found that the Defendant could testify about her reaching her breaking
point, third-party witnesses could not testify that they witnessed a particular incident of abuse
on one occasion and that the Defendant reached her breaking point on the day of the
shooting. Counsel noted abuse dating to five years before the shooting, and the court
permitted counsel to present witnesses in the form of an offer of proof.
Paul Thompkins testified that he was the Defendant’s supervisor at Kentucky Fried
Chicken restaurant for about two years. He came to know the Defendant well during her
employment and said the victim came to the restaurant on one occasion and cursed the
Defendant. He said the argument was verbal and did not escalate into a physical
confrontation. He said similar incidents occurred four or five times, although he only
witnessed three incidents. He saw bruises and scratches on the Defendant, and he asked her
what occurred. He said the Defendant replied, “[T]hey had been in it.”
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Mr. Thompkins testified that on one occasion, the victim walked inside the restaurant
and cursed the Defendant from the counter. Mr. Thompkins overheard the cursing from his
office, and he asked the victim to leave. The victim began cursing Mr. Thompkins, and Mr.
Thompkins threatened to call the police if the victim did not leave the premises. Mr.
Thompkins recalled the victim’s walking to the parking lot and the Defendant’s requesting
permission to talk to the victim outside. He said that he did not see any physical injuries to
the Defendant when she returned to work but that the Defendant was distraught. He recalled
the Defendant’s general demeanor was depressed after an incident. He said the Defendant
“sometimes” seemed scared of the victim.
On cross-examination, Mr. Thompkins testified that the Defendant worked for him
when she was age sixteen or seventeen. He did not know the Defendant’s age but agreed she
was probably in her mid-twenties at the time of the trial. He denied the Defendant cursed the
victim, and he agreed he did not know what occurred when the victim and the Defendant
were in the restaurant parking lot. He agreed he did not witness the incident that resulted in
the Defendant’s scratches and bruises.
The trial court found pursuant to Tennessee Rule of Evidence 404 that the incident
was “vague.” The court noted that the testimony would not be offered to show the victim
was the first aggressor and found that the testimony did not show any relevant trait other than
the Defendant and the victim argued when the Defendant was age sixteen or seventeen, to
which the Defendant had already testified. The court found the testimony irrelevant.
The Defendant’s older son testified that he was age ten and that the victim was his
stepfather. He had a poor relationship with the victim because the victim was “mean” and
struck him frequently. He said the victim last abused him sometime before 2012. He
admitted he had issues wetting the bed at night and said the victim “whoop[ed]” him, which
resulted in bruises. He said the victim prevented him from drinking on occasion because of
his issues. He said the victim cursed him.
Defense counsel told the trial court that the Defendant’s older son’s testimony would
show the Defendant’s state of mind. Counsel noted that during the Defendant’s testimony,
she claimed the victim’s verbal and physical abuse of her older son provoked her on the day
of the shooting. Counsel noted the history of abuse and argued it was relevant to whether the
Defendant acted with adequate provocation. The court found that the Defendant’s older
son’s testimony was “not specific enough to be a specific incident of conduct.” The court
found that the Defendant’s older son generally characterized the victim as mean and that the
Defendant did not testify she witnessed any incident between her older son and the victim.
The court found that the Defendant’s older son’s testimony could not establish the
Defendant’s state of mind and noted that none of the evidence presented at that point in the
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trial disputed the Defendant’s testimony relative to the victim’s abuse toward her and her
older son. The court stated that the trial was not related to a previous domestic abuse
allegation and that the only relevant matter was the Defendant’s state of mind. The court
found that the testimony was irrelevant.
Relevant evidence is “evidence having 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. Irrelevant evidence is inadmissible.
Tenn. R. Evid. 402. Questions regarding the admissibility and relevancy of evidence lie
within the discretion of the trial court, and the appellate courts will not “interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.” State v.
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)). A trial court abuses its discretion when it applies an incorrect legal standard
or reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).
The Defendant’s theories of the case were that she acted in self-defense or that “at
most” she was guilty of voluntary manslaughter. As a result, her state of mind at the time of
the shooting was relevant to determining whether the Defendant intentionally killed the
victim with premeditation, knowingly killed the victim without premeditation, or killed the
victim in the heat of passion under adequate provocation. See Tenn. R. Evid. 401. The
Defendant testified that the victim’s previous domestic abuse against her and her older son
was her dominating thought when she picked up the loaded gun and followed the victim
down the street. She was angry, humiliated, and hurt by the victim’s broken promises that
he would never again abuse her or her son. As a result, testimony about the victim’s previous
violent conduct toward the Defendant was relevant. Although we agree with the trial court’s
finding that the evidence did not support the Defendant’s acting in self-defense, the evidence
generally supported her acting in the heat of passion under adequate provocation, rendering
her state of mind regarding the prior abuse relevant based on the Defendant’s testimony. See
State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992) (stating a defendant’s “state of mind is
crucial to the establishment of the elements of the offense”). However, this does not end our
inquiry because relevant evidence is not admissible automatically.
Tennessee Rule of Evidence 404(a)(2) states generally, “Evidence of a person’s
character or trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, except . . . [i]n a criminal case, . . . evidence
of a pertinent trait of character of the alleged victim of the crime offered by an accused[.]”
Generally, this provision is used to present evidence of the victim’s previous history of
violence to show that the victim was the first aggressor. See State v. Ruane, 912 S.W.2d 766,
779 (Tenn. Crim. App. 1995); see also Neil P. Cohen et al., Tennessee Law of Evidence §
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4.04[5][f] (6th ed. 2011). Additionally, when evidence of a victim’s character trait for
violence is admitted to show the victim was the initial aggressor, substantive evidence may
be established only by reputation or opinion testimony. Tenn. R. Evid. 405(a). It is only
during cross-examination that specific instances of conduct are admissible. Id.
Defense counsel repeatedly told the trial court that the intended purpose of the
evidence was not to show the victim was the first aggressor or acted in conformity with his
propensity for domestic abuse but to show the Defendant’s state of mind at the time of the
shooting. As a result, Rule 404(a)(2) is inapplicable. See Cohen, § 4.04[7][b] (stating that
“[s]ince the accused is proving his or her own fear rather than an action by the victim, Rule
404(a), which deals with character evidence to prove action in conformity with that character,
does not apply”). We note that Rule 404(b) is also inapplicable because it applies to other
crimes, wrongs, and acts of the accused. See State v. Stevens, 78 S.W.3d 817, 837 (Tenn.
2002). “Acts of anyone else are analyzed under Rule 401 rather than 404(b).” Cohen, §
4.04[7][b]. We note that although the court mentioned Rule 608 during the jury-out hearings
as a basis for excluding the evidence, this rule applies to testifying witnesses. As a result,
Rule 608 is also inapplicable in the present case.
Although we have concluded that evidence related to the victim’s prior abuse was
relevant to establishing the Defendant’s state of mind at the time of the shooting, the trial
court did not abuse its discretion by excluding the evidence proffered by the Defendant. The
Defendant was permitted to testify generally about incidents of prior abuse and the
circumstances of her relationship with the victim. This evidence was used to establish her
state of mind and was properly admitted. Mr. Thompkins’s testimony, though, surrounded
an event several years before the shooting when the Defendant was age sixteen or seventeen,
rendering the incident too remote in time. Although the incident involved a verbal exchange
between the Defendant and the victim, Mr. Thompkins did not witness any physical abuse
during the incident or at any time during the Defendant’s employment. As a result, the
relevancy of his testimony was limited. Likewise, Tennessee Rule of Evidence 403 provided
a basis for excluding the evidence. The testimony held the potential of presenting cumulative
evidence in the nature of general verbal abuse by the victim to which the Defendant had
already testified.
Likewise, although the Defendant’s older son’s testimony was relevant to the
Defendant’s state of mind regarding the victim’s abuse toward her older son, his testimony
provided no additional detail about his relationship with the victim. The Defendant testified
about the victim’s calling her older son slow and verbally abusing him because he struggled
with bed wetting. The Defendant also testified that the victim physically abused her older
son. As a result, this evidence also created the risk of presenting cumulative evidence and
wasting time pursuant to Rule 403.
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In any event, the Defendant’s testimony adequately presented the jury with
information relative to the victim’s prior abuse against her and her son, and the jury’s verdict
reflects that it credited her testimony by finding she acted under adequate provocation at the
time of the shooting. We note that defense counsel’s argument to the trial court for the
admission of the testimony was, in part, to accomplish this goal. The court did not abuse its
discretion by excluding the testimony. The Defendant is not entitled to relief on this basis.
IV
Expert Medical Testimony
The Defendant contends that the trial court erred by allowing a medical examiner who
did not perform the victim’s autopsy to testify about the autopsy results and by admitting the
autopsy report in evidence. She argues that Dr. Laboy’s testimony and admission of the
autopsy report violated her constitutional rights to confront and cross-examine the medical
examiner who performed the autopsy and prepared the report. The State contends that the
court properly allowed Dr. Laboy to testify about the autopsy results because he offered his
independent expert opinions, using the report as a basis for his opinions.
The Confrontation Clause provides a criminal defendant the rights to confront and
cross-examine witnesses. See U.S. Const. amends. VI, XIV; Tenn. Const. art. I, § 9; State
v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996). In Crawford v. Washington, 541 U.S. 36,
59 (2004), the Supreme Court concluded that the Confrontation Clause permits the admission
of “[t]estimonial statements of witnesses absent from trial . . . only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-examine.”
A statement is testimonial when “made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial[.]”
Id. at 51-52 (internal quotation marks and citation omitted); see Davis v. Washington, 547
U.S. 813, 822 (2006). In order for a testimonial statement to be admissible, the declarant
must be unavailable to testify, and the defendant must have had a prior opportunity to cross-
examine the declarant. Crawford, 541 U.S. at 53-55; see Melendez-Diaz v. Massachusetts,
557 U.S. 305, 309 (2009). However, the Confrontation Clause is not implicated when
testimonial statements are not used to show the truth of the matter asserted. Crawford, 541
U.S. at 59 n.9.
In the context of expert witnesses and reports, the Supreme Court concluded that the
Confrontation Clause was violated when the prosecution introduced the forensic analysis
report of the defendant’s blood alcohol concentration through an analyst who did not conduct
or observe the analysis performed. Bullcoming v. New Mexico, — U.S. —, — , 131 S. Ct.
2705, 2709 (2011). The Court stated that the Confrontation Clause “does not tolerate
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dispensing with confrontation simply because the court believes that questioning one witness
about another’s testimonial statements provides a fair enough opportunity for cross-
examination.” Id. at 2716. The Court stated that in order for an analysis report to be
admissible, the analyst who performed the analysis must be unavailable and the defendant
must have had a prior opportunity to cross-examine the analyst. Id.; see Melendez-Diaz, 557
U.S. at 311. We note that Bullcoming did not involve a scenario in which the testifying
analyst was asked to render an independent expert opinion relative to the “underlying
testimonial reports that were not themselves admitted into evidence.” Id. at 2722
(Sotomayor, J., concurring).
In 2012, the Supreme Court considered whether the Confrontation Clause precludes
an expert witness from providing an opinion based upon information contained in a DNA
laboratory report, although the expert was not involved in the analysis or preparation of the
report. Williams v. Illinois, — U.S. —, 132 S. Ct. 2221 (2012). The plurality concluded that
the DNA report at issue was non-testimonial because it was not prepared for “the primary
purpose of accusing a targeted individual.” Id. at 2243. At the time the report was prepared,
no suspects had been identified, and as a result, the Court concluded that the primary purpose
of the report was “to catch a dangerous rapist who was still at large,” not “to accuse [the
defendant] or to create evidence for use at trial.” Id. However, four justices rejected the
plurality’s “accusation test” for various reasons and concluded that the report was testimonial
because it was compiled to show “‘some fact’ in a criminal proceeding,” which was the
rapist’s identity. Id. at 2266-67 (Kagan, J., dissenting) (quoting Bullcoming, 131 S. Ct. at
2717). Justice Kagan, joined by Justices Scalia, Ginsburg, and Sotomayor, concluded that
the a defendant’s confrontation rights are violated when an expert who does not perform the
analysis or compile the report is permitted to testify about its contents. Id. at 2268.
In reviewing Williams, the Tennessee Supreme Court concluded that no clear test
exists for determining whether the use of forensic evidence violates a defendant’s
confrontation rights. State v. Dotson, 450 S.W.3d 1, 69-70 (Tenn. 2014). In Dotson, the
defendant argued that the admission of testimony from a forensic pathologist who did not
perform the victims’ autopsies and admission of the reports prepared by a medical examiner
who did not testify at the trial violated his confrontation rights. After discussing the various
conclusions courts had made regarding autopsy reports and expert testimony from medical
examiners who did not perform the autopsies, our supreme court stated, “We need not decide
in this case whether autopsy reports are testimonial or whether a medical examiner may
testify about an autopsy report produced by another pathologist who does not testify at trial.”
Id. at 72. Because the defendant did not object during the trial to the admission of the
autopsy report and failed to raise the issue in his motion for a new trial, our supreme court
concluded that plain error relief was not warranted “[g]iven the uncertainty that has existed
in Confrontation Clause jurisprudence since Crawford, and in particular the lack of clarity
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regarding expert reports and testimony, which was . . . exacerbated by the splintered decision
in Williams[.]” Id.
Although the Tennessee Supreme Court has granted the defendant’s application for
permission to appeal in State v. Thomas Lee Hutchison, No. E2012-02671-CCA-R3-CD,
2014 WL 1423240 (Tenn. Crim. App. Apr. 11, 2014), perm. app. granted (Tenn. Oct. 20,
2014), we nonetheless find the Court of Criminal Appeals opinion instructive on this issue.
The defendant in Hutchison argued that his confrontation rights were violated by the
admission of the autopsy report through a medical examiner who did not perform the
autopsy. Utilizing the primary purpose test, a majority of this court concluded that although
the defendant was in police custody at the time the autopsy was performed, the purpose of
the autopsy “was to identify the injuries sustained by the victim and determine his cause of
death.” Id. at *30. Likewise, the majority concluded that the autopsy “was not ‘accusing a
targeted individual of engaging in criminal conduct.’” Id. (quoting Williams, 132 S. Ct. at
2242). As a result, the majority concluded that the autopsy report was non-testimonial and
that its admission did not violate the Confrontation Clause. Id.
The dissent, however, concluded based upon the facts specific to the case that the
Confrontation Clause “was implicated when the autopsy report was admitted through the
testimony of a medical examiner who did not perform the autopsy.” Id. at *41 (Tipton, P.J.,
concurring and dissenting). At the time the victim’s body was discovered by law
enforcement, “his pants were pulled down, he was lying face down on the floor, and blood
spatter surrounded him.” Id. The crime scene showed that the victim suffered blunt force
trauma from the crowbar and knife found by investigators, that it appeared items at the scene
had been moved after the victim was killed, and that the victim’s death was a homicide. Id.
Furthermore, statements made to police officers at the scene showed that the defendant
stabbed the victim, that the victim was found wrapped in a blanket with the crowbar lying
on top of the blanket, and that the defendant attempted to flee the scene and said he did not
kill the victim by himself. Id. The dissent noted that although no clear analysis was
explained in Williams, the facts of the case conformed with the general pattern of cases in
which a defendant’s confrontation rights had been violated, namely that the victim’s death
was a homicide and that the defendant was the identified suspect before the autopsy was
conducted. Id. Although the dissent concluded that the autopsy report was conducted for
the primary purpose of being used as evidence against the defendant at a trial and implicated
the Confrontation Clause, it also concluded that the error was harmless because the testifying
medical examiner’s conclusions about the victim’s cause of death were based upon her
independent review of photographs taken during the autopsy. Id.
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In State v. Thomas Lee Carey, Jr., No. M2013-02483-CCA-R3-CD, 2015 WL
1119454 (Tenn. Crim. App. Mar. 10, 2015), perm. app. filed (Tenn. May 5, 2015), this court
considered whether the admission of an autopsy report through the testimony of a medical
examiner who did not perform the autopsy violated the defendant’s confrontation rights. The
victim’s body was discovered sixty to seventy feet down a steep embankment that “looked
like the city dump.” Id. at *4. The victim’s body was decomposed, but police officers saw
that his pants were pulled down and that a shirt was tied around his ankles or lower calf.
Although no blood was found near the victim, police officers found four small groupings of
shell casings from two firearms at the top of the embankment. Utilizing the primary purpose
test and relying in part on the majority opinion in Thomas Lee Hutchison, this court
concluded that the autopsy report was prepared to determine the victim’s cause of death and
was not prepared for the purpose of “‘accusing a targeted individual of engaging in criminal
conduct.’” Id. at *15 (quoting Thomas Lee Hutchison, 2014 WL 1423240, at *30).
Relative to the testifying medical examiner, this court in Thomas Lee Carey, likewise,
concluded that the trial court properly permitted the witness to testify about her independent
conclusions regarding the victim’s cause of death. Id. at *15. This court noted that as a
medical examiner, the witness’s testimony was within her field of expertise and that the
autopsy report prepared by the performing physician was “‘of a type reasonably relied upon
by experts.’” Id. at *15 (quoting Tenn. R. Evid. 703). The witness provided her independent
opinions after she reviewed the autopsy report, the photographs taken during the autopsy, and
the crime scene photographs. The court noted that she did not recite the performing medical
examiner’s conclusions from the report and that the “‘Confrontation Clause does not limit
experts offering their own opinion regardless of the independent admissibility of the material
relied upon.’” Id. at *15 (quoting State v. James Drew Freeman, Jr., No. M2011-00184-
CCA-R3-CD, 2012 WL 1656975, at *14 (Tenn. Crim. App. May 9, 2012)).
Relative to the autopsy report, the most recent jurisprudence in this area provides little
guidance to determine whether a report is testimonial or non-testimonial for confrontation
purposes. However, we conclude that the proper analysis is the primary purpose test until
the United States Supreme Court or the Tennessee Supreme Court determines otherwise. See
Williams, 132 S. Ct. at 2242; see also Thomas Lee Hutchison, 2014 WL 1423240, at *30;
Thomas Lee Carey, Jr., 2015 WL 1119454, at *15.
In the present case, the record reflects that although the Defendant shot the victim, she
made statements to witnesses and to the police that the victim was hit by a car. Paramedics
who treated the victim at the scene thought the victim had been hit by a car and only
discovered the gunshot wound after the victim was in transit to the hospital for treatment.
Police officers learned of the shooting after being at the scene for a significant period of
time. Pursuant to the primary purpose test, we conclude that the autopsy report was non-
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testimonial because it was prepared to determine the victim’s cause of death and was not
conducted in an effort to accuse a “targeted individual of engaging in criminal conduct.” See
Williams, 132 S. Ct. at 2242. As a result, the autopsy report’s admission did not violate the
Defendant’s confrontation rights. We note that even if the autopsy report were testimonial,
any error in its admission would have been harmless beyond a reasonable doubt because the
Defendant testified that she shot the victim in the head and that the victim died as a result of
the gunshot. The record does not reflect that the cause of death was disputed.
Likewise, we conclude that the Defendant’s confrontation rights were not violated by
Dr. Laboy’s testifying regarding the victim’s cause of death, although he did not perform the
autopsy. Dr. Laboy was accepted as an expert in forensic pathology and provided his
independent opinions that the victim’s cause of death was a gunshot wound to the head and
that the manner of death was homicide. His expert opinion was based upon his review of the
items contained in the medical examiner’s file, which included the autopsy and toxicology
reports, narratives collected at the time of death, photographs, and diagrams. Dr. Laboy did
not simply recite Dr. Caruso’s findings and conclusions.
Our rules of evidence permit a witness who is “qualified as an expert by knowledge,
skill, experience, training, or education” to “testify in the form of an opinion[.]” Tenn. R.
Evid. 702.
The facts or data . . . upon which an expert bases an opinion . . . may be those
perceived by or made known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions
. . . upon the subject, the facts or data need not be admissible in evidence.
Facts or data that are otherwise inadmissible shall not be disclosed to the jury
by the proponent of the opinion . . . unless the court determines that their
probative value in assisting the jury to evaluate the expert’s opinion
substantially outweighs their prejudicial effect.
Tenn. R. Evid. 703. Dr. Laboy testified that autopsy reports were reasonably relied upon by
forensic pathologists and that the reports were used during consultations in which a forensic
pathologist might be asked to determine whether agreement existed relative to cause and
manner of death. Dr. Laboy testified that after reviewing the medical examiner’s office file,
he concluded that the victim’s cause of death was a gunshot wound to the head and that the
manner of death was homicide. We note that the “Confrontation Clause does not limit
experts offering their own opinion regardless of the independent admissibility of the material
relied upon.” See Thomas Lee Carey, Jr., 2015 WL 1119454, at *15 (internal quotations and
citation omitted). In any event, much of Dr. Laboy’s testimony focused on the photographs
taken during the autopsy, independent of the autopsy report. In addition, the Defendant
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cross-examined Dr. Laboy about his conclusions and highlighted the limitations placed upon
his testimony because he did not perform the autopsy. The Defendant is not entitled to relief
on this basis.
V
Self-Defense Instruction
The Defendant contends that the trial court erred by refusing to instruct the jury
relative to self-defense. She argues she testified that she was scared of the victim and that
the victim looked as though he was going to attack her when he turned to confront her. The
State responds that the court properly denied the Defendant’s request for a self-defense
instruction because the Defendant acted unlawfully at the time of the shooting by pursuing
the victim down the street with a gun. We agree with the State.
A criminal defendant has “a right to a correct and complete charge of the law.” State
v. Hanson, 279 S.W.3d 265, 280 (Tenn. 2009) (citing State v. Garrison, 40 S.W.3d 426, 432
(Tenn. 2000)). As a result, a trial court has a duty “to give proper jury instructions as to the
law governing the issues raised by the nature of the proceeding and the evidence introduced
at trial.” State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013) (citing Dorantes, 331 S.W.3d
at 390); see State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). A jury instruction
related to general defenses, including self-defense, is not required to be submitted to the jury
“unless it is fairly raised by the proof.” T.C.A. § 39-11-203(c) (2014). An erroneous jury
instruction, though, may deprive the defendant of the constitutional right to a jury trial. See
Garrison, 40 S.W.3d at 433-34.
Our supreme court has concluded that sufficient evidence to fairly raise a general
defense “is less than that required to establish a proposition by a preponderance of the
evidence.” Hawkins, 406 S.W.3d at 129. A trial court’s determination in this regard “must
consider the evidence in the light most favorable to the defendant and draw all reasonable
inferences in the defendant’s favor.” Id.; see State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001);
Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975); State v. Bult, 989 S.W.2d 730, 733
(Tenn. Crim. App. 1998); see also State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim.
App. 1993). If evidence has been presented which reasonable minds could accept as a
defense, “the accused is entitled to appropriate instructions.” Johnson, 531 S.W.2d at 559.
When the evidence presented at the trial fairly raises a general defense, the trial court
is required to provide the jury with the appropriate instruction. Hawkins, 406 S.W.3d at 129.
A jury instruction, though, is “prejudicially erroneous only if the . . . charge, when read as
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a whole, fails to fairly submit the legal issues or misleads the jury as to the applicable law.”
State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005).
With respect to self-defense in Tennessee, a person acts in self-defense when that
person
is not engaged in unlawful activity and is in a place where the
person has a right to be has no duty to retreat before threatening
or using force intended or likely to cause death or serious bodily
injury, if: (A) The person has a reasonable belief that there is an
imminent danger of death or serious bodily injury; (B) The
danger creating the belief of imminent death or serious bodily
injury is real, or honestly believed to be real at the time; and (C)
The belief of danger is founded upon reasonable grounds.
T.C.A. § 39-11-611(b)(2)(A)-(C) (2014).
The record reflects that the trial court denied the Defendant’s request for a self-
defense instruction because it found that although the Defendant testified she was hurt,
embarrassed, humiliated, mad, and angry, she did not testify that she was afraid of the victim
at the time she pulled the trigger. The court found that the Defendant testified she did not
know what the victim might do and that in the light most favorable to the Defendant, her
testimony at most showed the victim turned and might have struck her again. The court
found that the testimony did not justify the use of deadly force because the Defendant was
not in imminent danger of death or serious bodily injury. The court noted that if the
Defendant feared the victim might turn around, walk toward her, and strike her again, the
victim was not justified in using deadly force when she followed the victim down the street.
The court stated that the Defendant testified she closed her eyes, pulled the trigger, and did
not know where the shots were going and that such conduct did not constitute self-defense.
In the light most favorable to the Defendant, the record reflects that the trial court
properly denied her request for a self-defense instruction. Although witnesses testified that
the victim and the Defendant argued before the shooting, resulting in the victim’s striking
and kicking the Defendant inside their house, the victim removed himself from the house and
walked down the street away from the Defendant. The Defendant obtained a gun she knew
was loaded, pursued the victim, and yelled at and cursed the victim from a distance.
Witnesses who saw the Defendant following the victim testified that the Defendant was
upset, talking crazy, and agitated. Upon the Defendant’s cursing the victim, the victim
stopped and turned. Although the Defendant said she pulled out the gun, closed her eyes, and
fired the gun when the victim began walking toward her, she never testified that she was in
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fear of her life or of serious bodily injury. Although the Defendant discussed her general fear
of the victim and her not calling the police when the victim previously abused her, she stated
that at the time of the shooting, she was not thinking clearly and saw red and stars while
thinking of the previous abuse she endured from the victim. We note that the Defendant’s
leaving the house with a loaded gun and pursing the victim after he left the house was not
lawful conduct. The Defendant is not entitled to relief on this basis.
In consideration of the foregoing and the record as a whole, we affirm the Defendant’s
convictions for voluntary manslaughter and false report. However, we reverse the judgment
for employing a firearm during the commission of a dangerous felony, vacate the conviction,
and dismiss the charge.
____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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