State of Tennessee v. Travis Kinte Echols ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 28, 2010 Session
STATE OF TENNESSEE v. TRAVIS KINTE ECHOLS
Direct Appeal from the Criminal Court for Knox County
No. 82476 Bob R. McGee, Judge
No. E2009-01697-CCA-R3-CD - Filed June 14, 2011
A Knox County Criminal Court jury convicted the appellant, Travis Kinte Echols, of first
degree felony murder committed during the perpetration of robbery, and the trial court
sentenced him to life. On appeal, the appellant raises numerous issues, including that the
evidence is insufficient to support the conviction. Finding no errors that warrant reversal,
we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which JAMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.
Robert L. Jolley, Jr., Knoxville, Tennessee, for the appellant, Travis Kinte Echols.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Philip Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
This case relates to the shooting death of Robert Steely on June 18, 2005, in
Knoxville. Darlene Thomas, the victim’s daughter, testified that in June 2005, the victim
was sixty-seven years old, a widower, and dealt in antique cars. The victim owned guns and
always carried a gun on his person. Thomas said the victim did not have a bank account,
carried large amounts of money with him, and “might have seven or eight thousand dollars
on him at one time.” The victim did not have a criminal record. He told his daughter he had
a girlfriend, but he never allowed his daughter to meet her. On the day the victim was killed,
Thomas went to the hospital, but the victim was dead when she got there. Thomas never saw
or received the victim’s wallet after his death.
On cross-examination, Thomas testified that she did not know Patricia Hickman but
found some of Hickman’s belongings, including part of a drug pipe, at the victim’s home
after his death. She denied the victim had a drug problem. She said that although the victim
did not have a permit to carry a gun, he carried a gun in his pocket or in his car if he was
driving. Although Thomas never received the appellant’s wallet after his death, the police
gave her two rings and a watch he had been wearing when he was killed.
Officer Gerald Smith of the Knoxville Police Department testified that on June 18,
2005, he responded to a shooting call at Town View Towers apartments, parking lot C, and
arrived at the scene about 4:05 p.m. Another officer was present, and emergency medical
technicians (EMTs) were working on the victim. The victim was sitting behind the steering
wheel of a red and white 1958 Buick Special and was slumped to the left. Officer Smith said
the Buick “straddled” two parking spaces. A white Ford Escort was parked in the parking
space to the left of the Buick, and a white Oldsmobile Cutlass was parked in the space to the
left of the Escort. All of the cars were facing the building that contained apartments 506
through 516.
Officer Smith testified that the Buick’s door windows were down and that the car was
in reverse gear. The key was in the ignition, but the ignition was turned off. Officer Smith
removed a Titan Tiger .38 Special revolver from underneath the victim’s left arm, and blood
was on the gun. The six-shot revolver was loaded with six rounds, and one round had been
fired. When the EMTs took the victim out of the car, Officer Smith saw that the victim had
a gunshot wound to his left chest. Officers patted down the victim, looking for identification,
but did not find a wallet.
Officer Smith testified that the police found one spent .22 caliber cartridge case on the
pavement behind the Escort and one spent .22 caliber cartridge case behind the Cutlass. He
saw a bullet mark inside the Buick across the driver’s seat-back and a bullet hole in the car’s
passenger-side door. Using a metal rod, officers tracked the path of the bullet and
determined that it had been fired from outside the car, struck the seat-back behind the victim,
traveled across the inside of the car, and entered the passenger-side door. Officer Smith also
saw a bullet hole behind the passenger door of the Escort. The hole was larger than the hole
in the Buick’s passenger door, meaning it had been created by a larger caliber bullet. The
bullet entered the Escort, struck the rear stereo speaker on the passenger side, and came to
rest inside the car’s rear window area. After Officer Smith left the scene, he went to the
emergency room and learned the victim was dead.
-2-
On cross-examination, Officer Smith testified that he swabbed the victim’s hands at
the emergency room to test for contact with DNA. Officer Smith left the emergency room,
went to the victim’s home, and photographed and fingerprinted a crack pipe found there. The
police also found female clothing, a purse, and a hairbrush.
Officer Jan Gangware of the Knoxville Police Department testified that she went to
the crime scene to help Officer Smith and used a metal rod to mark the trajectory of the bullet
that entered the Buick and struck the passenger-side door. Officer Gangware removed the
panel from the door and collected the bullet. She later processed the victim’s car for
fingerprints at the city impound lot. She lifted fingerprints from the car and a soda can inside
the car and turned them over to a fingerprint expert. She also swabbed the car to test for
DNA.
Dan Crenshaw of the Knoxville Police Department testified that he worked in the
forensic unit and examined the fingerprints lifted from the Buick. The victim’s fingerprints
were on the car’s trunk and driver-side right fender. Rebecca Carpenter’s fingerprints were
on the soda can and the window frame of the passenger-side door.
Patricia M. Resig, a firearms examiner for the Knoxville Police Department, testified
that she examined and tested bullets, cartridge cases, and a revolver collected as evidence in
this case. The bullet recovered from the back window area of the Ford Escort was a .38
caliber bullet fired from the victim’s revolver. The bullet portion collected from the Buick’s
passenger-side door was part of a fired .22 caliber bullet. Two bullets collected from the
victim’s chest were .22 caliber long rifle bullets that had similar characteristics. Resig
explained that although they were “rifle” bullets, they could have been fired from a .22
caliber revolver, semi-automatic pistol, or rifle. The two spent cartridge cases found behind
the Escort and the Cutlass were .22 caliber long rifle Federal cartridge cases. Although they
shared the same characteristics, Resig was unable to conclude they were fired from the same
gun. On cross-examination, Resig testified that markings on the .22 caliber cartridge cases
found behind the Escort and the Cutlass indicated they were probably fired from a .22 caliber
semi-automatic pistol or rifle, not a revolver.
George Ronald Hammontree testified that on June 18, 2005, he and his wife were at
Town View Towers for a friend’s birthday party. At some point, Hammontree left the party
in order to walk to his van to get a pack of cigarettes. Hammontree said that as he reached
down in the van to pick up the cigarettes, he heard “a lot of ruckus,” stood up, and saw “[a]
lot of commotion” coming from a red and white car. Hammontree saw a black male holding
a rifle and pointing it at an older man, who was sitting in the car and holding his hands up.
Hammontree said that the man with the rifle had dreadlocks and that the rifle was equipped
with a scope and had a “sheet” wrapped around the stock. A second black male and a white
-3-
female also were standing outside the car. Hammontree heard someone say, “Give it up,
Give it up.” He said that he “hit the floor” and that he heard “pat, pat, pat and boom.” He
said he was very familiar with guns and could tell from the sound of the gunshots that the
first three came from a .22 caliber automatic gun and that the fourth shot “had to [come from]
a nine millimeter, big caliber gun.”
Hammontree testified that he stood up and saw “three people running in all
directions.” He said that the white female and second black male had been standing toward
the front of the car and that the female “run so hard her tennis shoes flew off her feet.”
Hammontree went back to his friend’s apartment. He said he did not check on the victim or
call the police because his friend had to live in the apartment building and he was scared.
One or two weeks later, Hammontree contacted the police and met with Investigator Steve
Still. He said that Investigator Still showed him photographs of “six or eight people on a
sheet” and that he identified the appellant’s photograph as the shooter. He said the
appellant’s appearance at the time of the shooting was different than in the photograph
because the appellant had dreadlocks on the day of the shooting. Hammontree also identified
the appellant in court as the shooter. He said he was “[a] hundred percent” sure that the
appellant shot the victim on June 18, 2005.
On cross-examination, Hammontree acknowledged having prior convictions for
aggravated burglary, felony theft, and criminal impersonation and having pending charges
for forgery and theft. He also acknowledged that at the appellant’s preliminary hearing, he
identified a man named Dan Alford as the shooter. He said the appellant and Alford looked
alike and “both had their hair poofed out.” He explained that he had been nervous at the
hearing and misidentified Alford as the shooter. He acknowledged that he did not talk with
Investigator Still until mid-July 2005 and that he did not see anything taken from the victim
during the robbery. On redirect examination, Hammontree testified that the State had not
promised him anything in return for his testimony.
Rebecca Ann Carpenter testified that in June 2005, she had a drug problem. On the
morning of June 18, she went to Town View Towers and bought drugs. Then she walked
toward the Old City and saw the victim’s red and white Buick parked in a gravel parking lot.
The victim motioned for Carpenter to come over, but he noticed when she got to the car that
he had mistaken her for someone else. Nevertheless, Carpenter and the victim began talking.
Carpenter asked if the victim would take her for a ride in the Buick, and the victim said yes.
Carpenter said that she was not working as a prostitute “that day” and that the victim “was
not the pervert type.”
Carpenter testified that she began talking about buying some marijuana and that the
appellant drove her to Town View Towers. The victim pulled out his wallet and gave
-4-
Carpenter eighteen dollars, and Carpenter saw he had a lot of money. Carpenter said she
walked into the apartment complex and saw the appellant, whom she described as having
“long hair. Kind of fro like. Kind of frizzy looking.” She said she bought crack cocaine
from him, “smoked it right there,” and returned to the victim’s car. As she was leaning on
the passenger-side window and talking with the victim, she heard gunshots, looked up, and
saw the appellant holding a long-barrel shotgun. Carpenter got down on the ground and
heard more gunshots. When the shooting stopped, she reached into the Buick, grabbed her
purse off the passenger seat, and ran. She saw the appellant, and he told her to go back to
the parking lot, look for the bullet casings, and wipe her fingerprints off the car. She said
that she did not want to go back to the parking lot but that the appellant told her, “Yes.
That’s how you do it.” Carpenter said she “ran up the steps really, really fast so I ran out of
my shoes” and returned to the Buick. She pretended to look for the shell casings, saw the
victim slumped over the steering wheel, and thought he was dead. She said she hid the rest
of the day and walked out of Knoxville the next day. Weeks later, she talked with the police.
She said she never saw the victim with a gun on June 18.
On cross-examination, Carpenter testified that she was not standing at the front of the
car at the time of the shooting but was leaning on the Buick’s passenger-side window. She
said the appellant was not standing beside the Buick’s driver-side window but was “[a]bout
a car away.” Carpenter did not hear anyone say, “[G]ive it up.” She acknowledged telling
Investigator Still that she heard at least four or five gunshots but said at trial that she did not
remember how many shots were fired. She said she did not remember if she drank anything
in the victim’s car but may have touched a soda can. She said the victim’s wallet was still
in his back pocket when she reached into the Buick and grabbed her purse. She
acknowledged being convicted of tampering with government evidence in 2008.
On redirect examination, Carpenter acknowledged that Investigator Still showed her
a photograph array on July 11, 2005, and that she identified the appellant as the man she
bought drugs from and saw with the gun on June 18. The State showed Carpenter an array
of six black and white photographs, and she identified it as the array Investigator Still
showed her on July 11.
Sergeant Tony Willis of the Knoxville Police Department testified that on June 26,
2005, he learned Investigator Still was looking for a black male suspect, who had a missing
tooth, went by the name “Travis,” and may have been staying at an apartment in Town View
Towers. Sergeant Willis said he went to the apartment complex and found the appellant “[i]n
the very apartment that we were sent to check.” The police found the appellant in the
bathroom, and he appeared to be hiding. Officers arrested the appellant, the appellant told
them his name was Travis Brabson, and they took him to meet with Investigator Still. On
cross-examination, Sergeant Willis testified that a homicide warrant had not been issued for
-5-
the appellant when the police arrested him at Town View Towers.
Twenty-nine-year-old James Blackwell testified that he was incarcerated and serving
a federal sentence for cocaine distribution. He said he had not been promised anything in
return for his testimony and was testifying against the appellant “[t]o do the right thing.”
Blackwell said he met the appellant in 2002 and would see him “quite often.” In June or July
2005, Blackwell was placed in the same unit with the appellant at the penal farm, and the
appellant told him the following: Someone was supposed to bring a man over to buy drugs
from the appellant. The appellant was going to get the money from the man, buy the drugs,
and deliver the drugs to the man. When the appellant saw how much money the man had in
his possession, he got a .22 caliber rifle instead of the drugs. He pointed the gun at the man
and told the man to give him the money. The man pulled out a gun and shot at the appellant,
and the appellant shot the man in the chest. The appellant took the money out of the man’s
pocket and later threw the gun over the James White Parkway bridge into the river. The
appellant told Blackwell he shot and killed the victim in self-defense.
Blackwell testified that he could not remember if the appellant said a car was between
the appellant and the victim at the time of the shooting. Blackwell also could not remember
if the appellant said he shot the victim at close range. Blackwell thought the appellant told
him the appellant took almost ten thousand dollars out of the victim’s pocket. When
Blackwell asked the appellant what he was going to do with the money, the appellant said
he was going to hire a lawyer. Blackwell said he did not know George Hammontree or
Rebecca Carpenter. At some point after the appellant told Blackwell about the shooting,
Blackwell asked to speak with Investigator Still.
On cross-examination, Blackwell testified that in October 2004, he entered into a
federal plea agreement to plead guilty to money laundering and conspiracy to distribute five
kilograms or more of cocaine. Blackwell acknowledged that he had been facing a sentence
of twenty years to life. On July 27, 2005, he met with Investigator Still. In October 2005,
Blackwell was sentenced in his federal case to one hundred fifty-six months in confinement.
He said he was “pretty sure” the federal government was informed about his conversation
with Investigator Still.
Jennifer Milsaps, a special agent forensic scientist with the Tennessee Bureau of
Investigation Crime Laboratory, testified that she analyzed swabs collected in this case and
compared them to DNA collected from the victim and the appellant. DNA was not found
on any of the swabs. Milsaps also analyzed the blood on the revolver and determined it was
the victim’s blood.
-6-
Investigator Steve Still testified that on June 18, 2005, he responded to a complaint
of a dead person in a car at Town View Towers. When he arrived, the victim was in an
ambulance. The police talked with several people who heard gunshots, but Investigator Still
could not find any eyewitnesses to the shooting. Although the police did not find any
identification on the victim, a check of the Buick’s license tag showed it was registered to
Robert Steely. Investigator Still said that he examined the physical evidence at the crime
scene and that “it appeared that two people had been in a shoot out of some sort and had fired
weapons at each other.” One shot had been fired from the victim’s revolver, and at least one
shot had been fired from a .22 caliber weapon. Investigator Still thought the victim had been
sitting in the car when he was shot and when he fired the revolver. Investigator Still went
to the hospital and learned the victim was dead. He also spoke with the victim’s daughters
and went to the victim’s home, where he found information about a woman named Patricia
Hickman. Hickman had spent time in drug rehabilitation. However, Investigator Still was
able to eliminate her as a suspect, and he began looking for Rebecca Carpenter.
Investigator Still testified that Sergeant Willis arrested the appellant on the night of
June 26 and brought him to the police department. Investigator Still read Miranda warnings
to the appellant, the appellant signed a waiver form, and Investigator Still interviewed him.
The interview was video recorded, and the State played the recording for the jury. During
the recorded interview, the appellant said the following: The victim’s car pulled up, and the
appellant saw a female, who appeared to be in her forties, get out. The appellant approached
the victim, who was still sitting in the car, and said, “Hey, sir, may I please have a cigarette?”
The victim “jumped over,” reached under the seat, and pulled out a gun. The victim shot at
the appellant, the appellant ran, and the appellant shot at the victim three or four times. At
first, the appellant said the .22 caliber gun was “gone” and that he did not know where it was.
However, he then told the investigator that he threw it into a quarry in the Halls community.
The appellant told Investigator Still that he did not touch the victim’s car or take the victim’s
wallet and that he shot the victim because he did not know if the victim was going to shoot
at him again. He said that he was protecting himself, that he did not mean to hurt or kill the
victim, and that the victim’s gun was still pointed at him when he shot at the victim.
Investigator Still testified that after the interview, he and other officers took the
appellant to the quarry in order for the appellant to show them where he threw the gun. A
dive team went into the quarry but did not find the weapon. On July 11, 2005, Investigator
Still interviewed Rebecca Carpenter and showed her a photograph array. Investigator Still
acknowledged that she identified the appellant as a person who had been involved in the
shooting. On July 18, 2005, Investigator Still interviewed George Hammontree. At some
point, James Blackwell’s lawyer contacted Investigator Still, and Investigator Still
interviewed Blackwell. Investigator Still said that he did not offer to help Blackwell with
his pending legal problems and that Blackwell did not ask for help.
-7-
On cross-examination, Investigator Still testified that he wrote down some names of
people who had heard gunshots but that he did not ask any of them about the pattern of the
shots. He acknowledged that the appellant always denied taking anything from the victim
and that no one other than the appellant was charged in this case.
Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox County,
testified that she performed the victim’s autopsy. The victim received three gunshot wounds,
but Dr. Mileusnic-Polchan could not tell the order in which they were received. One of the
bullets entered the back of the victim’s left arm; exited the arm; and entered his chest,
fracturing two ribs and damaging a lung. The bullet traveled left to right and slightly upward
and was recovered from the victim’s left chest. The wound was potentially survivable, and
the victim would have remained conscious for several minutes. A second bullet entered the
front of the victim’s left arm, exited the arm, grazed the left chest, continued toward the right
side of the car, and struck the passenger door. The bullet traveled left to right and slightly
upward, and it did not create a fatal wound. A third bullet entered the back of the victim’s
left chest, fractured two ribs, struck his left lung, and struck his aorta. In then traveled into
his right chest and struck a rib. The bullet traveled left to right and slightly upward and was
recovered from the right chest. Dr. Mileusnic-Polchan stated that the victim would have
survived for five to ten minutes after he was struck with the third bullet and that he would
have remained conscious long enough to have picked up a gun and fired it. She said that the
victim was leaning toward the passenger side of the car when he was shot and that nothing
on his clothes indicated he had been shot at close range. The victim tested negative for
alcohol and illegal drugs but had a small amount of an antidepressant in his system.
On cross-examination, Dr. Mileusnic-Polchan testified that the appellant’s weapon
was at least two to three feet away from the victim when it was fired. On redirect
examination, she testified that the third bullet made no contact with the victim’s arms,
meaning his arms could have been raised.
The then twenty-nine-year-old appellant testified that his name was “Travis Kinte
Echols -- I mean Brabson.” He said that his mother’s last name was Echols, that his father’s
last name was Brabson, and that his last name was legally changed from Echols to Brabson
when he was fifteen years old. He said that on June 18, 2005, he was living “wherever [he]
could” and was at Town View Towers “[w]aiting for customers.” He saw the victim’s car
pull into the parking lot with a white man and woman inside. He said he approached the
driver’s side and asked the man for a cigarette as a way to “break the ice so I can ask them
if they want to buy crack cocaine.” He said the victim “just freaked out on me,” reached
under the seat for a gun, and pulled out the gun. The appellant said he turned around,
“ducked,” and heard “a blast from the gun.” The appellant pulled a .22 caliber semi-
automatic pistol out of his back pocket, fired three or four shots, and ran. He said he did not
-8-
go into the victim’s car or rob the victim.
The appellant testified that he shot at the victim because the victim shot at him first
and because he was scared. No one other than the appellant was around the victim’s car at
the time of the shooting. After the shooting, the appellant ran away from Town View Towers
and borrowed a car for a few hours. He drove to a quarry and threw the pistol into it. He
said he never had a conversation with James Blackwell at the penal farm because Blackwell
was wearing a federal beige uniform and federal prisoners housed at the farm were
“[s]nitches.” He said he had never worn dreadlocks and that his hair was not even long
enough to braid on June 18. He acknowledged killing the victim but said he feared for his
life. He said he did not rob or attempt to rob the victim and that the incident took place in
five to ten seconds.
On cross-examination, the appellant acknowledged that although his last name was
legally changed to Brabson when he was fifteen, he used the last name Echols many times
and signed documents as Echols. He said he used the last name Echols in this case because
he was charged under that name. He said that he did not have a drug dealing business and
that he was selling drugs “to survive.” He said he approached the victim’s car because “[n]ot
too many white people just pull into Town View unless they was looking for crack cocaine.”
When the victim pulled up, the female got out of the car. The appellant yelled to her, but she
ignored him and walked away, so he thought she was going to buy drugs from someone else.
He said he walked up to the driver’s side of the victim’s car and asked the victim, “[S]ir, may
I please have a cigarette?” He said that he did not have his gun pulled but that the victim
“freaked out.” The appellant saw the victim’s gun and ducked, and the victim shot at him.
The appellant shot at the victim and ran. He did not know he had struck the victim. He said
he was not hiding in the bathroom when Sergeant Willis found him but acknowledged telling
Investigator Still that he was hiding in the bathroom because he knew the police were looking
for him. He acknowledged being charged in February 2001 with passing a forged check but
denied operating a stolen vehicle in May 1998. Both charges were later dismissed. The jury
convicted the appellant of first degree felony murder committed during the perpetration of
robbery.
II. Analysis
A. Batson Challenge
The appellant contends that the State improperly used a peremptory challenge to
remove one of only two African Americans from the jury panel. The State argues that the
appellant has failed to prove it used its peremptory challenge in a discriminatory manner. We
agree with the State.
-9-
During jury voir dire, the prosecutor used a peremptory challenge to excuse
prospective juror Redding from the panel. The defense challenged Redding’s dismissal,
stating, “Your Honor, there are two individuals who are black on this jury. She’s one of
them. She hasn’t been asked any specific questions by the State.” The prosecutor explained,
“[S]he asked the court officer something. She won’t make eye contact with me. And she
wouldn’t make eye contact with [defense counsel]. I just get the sense that she does not want
to be here.” The trial court said, “Well, . . . I’ve noticed also some of the things he’s talking
about. She has gotten the officer’s attention a couple of times. I don’t know exactly why.”
Defense counsel noted that potential juror Carter, a white male, “said specifically that he did
not want to be here” but was still seated on the panel. The trial court informed the parties
that it had spoken with the court officer, who told the court that Redding had asked to leave
the courtroom in order to make a telephone call and reschedule an appointment. The
prosecutor stated that “as time went on [Redding] started kind of rocking back a little bit in
her chair and fidgeting and not looking anybody in the eye. And to my view, rose to the level
of almost being angry about still being seated there.” The trial court ruled,
[M]y inquiry tends to confirm that the young lady was anxious,
that she had somewhere else she wanted to be, and that she, in
fact, asked for permission to leave the courtroom. So I think
there is evidence to support the General’s position, and I
respectfully overrule the Motion -- or the objection rather.
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that
the prosecutor’s use of peremptory challenges to intentionally exclude jurors of the
defendant’s race violated his right to equal protection under the Fourteenth Amendment to
the United States Constitution. In Powers v. Ohio, 499 U.S. 400 (1991), the Court eliminated
the requirement that the defendant and any wrongfully excluded juror(s) be of the same race.
See State v. Ellison, 841 S.W.2d 824, 826 (Tenn. 1992). Thus, under Powers, a defendant
can establish a prima facie case of purposeful discrimination by showing that the prosecution
excluded members of a cognizable racial group from the venire. Id. To invoke Batson
protections, a defendant must establish a prima facie case that a juror is being challenged on
the basis of race or gender. See Batson, 476 U.S. at 94. Once the defendant has presented
a prima facie case of purposeful discrimination, the trial court shall require the State to give
a race-neutral reason for the challenge. Id.
Our supreme court has emphasized that under Batson, a trial court “must carefully
articulate specific reasons for each finding on the record, i.e., whether a prima facie case has
been established; whether a neutral explanation has been given; and whether the totality of
the circumstances support a finding of purposeful discrimination.” State v. Hugueley, 185
S.W.3d 356, 369 (Tenn. 2006) (quoting Woodson v. Porter Brown Limestone Co., 916
-10-
S.W.2d 896, 906 (Tenn. 1996)). In the present case, the trial court did not expressly find that
the appellant had made out a prima facie case of racial discrimination, yet it required the
prosecutor to provide his reason for striking Redding. Therefore, we will proceed on the
assumption that the trial court found that a prima facie case was established. See, e.g.,
Hugueley, 185 S.W.3d at 371; Woodson, 916 S.W.2d at 905 (Tenn. 1996).
The prosecutor stated that he struck Redding from the panel because she would not
make eye contact, was fidgeting, and seemed angry to still be there. As the Hugueley court
observed, “If a race-neutral explanation is provided, the trial court must then determine, from
all of the circumstances, whether the defendant has established purposeful discrimination.”
Id. at 368 (citing Batson, 476 U.S. at 98). The “trial court may not simply accept a proffered
race-neutral reason at face value but must examine the prosecutor’s challenges in context to
ensure that the reason is not merely pretextual.” Id. (citing Miller-El v. Dretke, 545 U.S. 231
(2005)). In this case, the trial court noticed behavior from Redding that supported the State’s
explanation. We conclude that the totality of the circumstances do not support a finding of
purposeful discrimination and that the trial court properly overruled the appellant’s Batson
challenge.
B. Inappropriate Questions During Voir Dire
The appellant contends that the prosecutor asked the prospective jurors inappropriate
questions during voir dire. Specifically, he alleges that the prosecutor improperly elicited a
pledge from the potential jurors by asking each one if he or she would vote to find the
appellant guilty. The State argues that the prosecutor’s questions were not improper. We
agree with the State.
Control of voir dire is within the sound discretion of the trial court and will not be
found to be in error unless an appellant shows prejudice. State v. Howell, 868 S.W.2d 238,
247 (Tenn. 1993). Our supreme court has ruled that “[t]he ultimate goal of voir dire is to
insure that jurors are competent, unbiased, and impartial.” State v. Cazes, 875 S.W.2d 253,
262 (Tenn. 1994).
The record reflects that the prosecutor asked the jurors, “If I prove to you that this
defendant intended to commit a robbery, and that he committed a robbery and somebody
died, can you find him guilty of felony murder?” The defense objected to the “improper
question,” and the trial court overruled the objection. The prosecutor then asked each
potential juror, “If I prove those [elements] to you, can you vote to find him guilty?” All of
the jurors answered in the affirmative.
-11-
In our view, the State was not asking the potential jurors for a promise to convict the
appellant. Instead, the State was asking the jurors if they could find him guilty if the State
proved the elements of the crime beyond a reasonable doubt. The prosecutor’s questions
were not improper, and the trial court properly overruled the appellant’s objection.
C. Motion to Suppress
The appellant claims that the trial court erred by denying his motion to suppress his
statement to Investigator Still because the police lacked probable cause to arrest him and he
did not voluntarily waive his Miranda rights. The State contends that the trial court properly
denied the motion to suppress. We conclude that the trial court erred by admitting the
statement into evidence because the police did not have probable cause to arrest the appellant
for the crime but that the error was harmless.
The appellant filed a pretrial motion to suppress his statement, arguing that it was the
product of an arrest without probable cause and that he did not knowingly waive his Miranda
rights. At the suppression hearing, Sergeant Willis testified that on June 26, 2005, he
received information from Investigator Still that the suspect in the shooting was in an
apartment at Town View Towers. The suspect was described as an African-American male
named “Travis,” who was missing a front tooth and was possibly in apartment number 218,
building D. Sergeant Willis and other officers went to the apartment and knocked on the
door. Sergeant Willis said a white female, “who was certainly in control of the apartment,”
answered the door. The officers told her why they were there, she gave them permission to
search, and the officers walked to the apartment’s bathroom. The bathroom door was closed,
so Sergeant Willis told whoever was inside to come out. The appellant came out of the
bathroom and got down on the floor as the officers instructed. He fit the description of the
suspect, and the officers handcuffed him. They asked the appellant his name, and he told
them his name was Travis Brabson. The officers took the appellant to the police department
to talk with Investigator Still. Sergeant Willis said that sometime after the appellant’s arrest
but before he was taken up to the third floor of the police department to meet with
Investigator Still, the officers checked his record and learned he had an outstanding warrant.
On cross-examination, Sergeant Willis acknowledged that he was not aware of any
outstanding warrants for the appellant at the time of the appellant’s arrest. He never advised
the appellant of the appellant’s rights.
Investigator Still testified that during the week after the shooting, a female told him
that a woman named Amanda Harshaw had some information about the appellant’s
involvement in the shooting. Investigator Still went to Harshaw’s place of employment and
spoke with her. Investigator Still said Harshaw told him that she had allowed a black male
-12-
named Travis, who was missing a front tooth, to use the telephone in her apartment and
“overheard his conversation where he was talking about shooting someone in lot C in Town
View.” Harshaw told Investigator Still that she would call him if the man showed up at her
apartment again. On the night of June 26, 2005, Investigator Still was at home and received
a telephone call from someone other than Harshaw. The person told him that Travis was at
Harshaw’s apartment. Investigator Still contacted Sergeant Willis and told him to go to the
apartment and detain the suspect. As Investigator Still was driving to the police department,
he learned officers had the appellant in custody. At the police department, Investigator Still
advised the appellant of his rights and interviewed him. The State played a video recording
of the interview for the trial court. According to the recording, the interview began at 12:05
a.m. on June 27.
On cross-examination, Investigator Still testified that he informally interviewed
Harshaw at her place of employment on June 23 and formally interviewed her at the police
department on July 6. He said, “She told me she overheard him make the statement I told
you. I don’t think we got into specifics[.]” He said he thought he checked her criminal
record and that she did not have a criminal history. He acknowledged that the police had
investigated other shootings in parking lot C but said that “there were none that week.” When
the defense asked Investigator Still if he had any information to show the appellant’s
telephone conversation was referring to the victim’s shooting, Investigator Still said, “I think
the correct answer to your question is the information from Amanda [Harshaw] that what she
had [heard] on the phone.”
Investigator Still testified that before the appellant’s interview, he read a waiver of
rights form to the appellant and showed him where to sign the form. He acknowledged that
the appellant hesitated to sign the form because Investigator Still had not told the appellant
what the interview was about. However, Investigator Still told the appellant that he was
going to explain the subject of the interview and that the appellant could stop the interview
at any time. The appellant signed the form. Investigator Still said the appellant never
requested an attorney during the interview. At the time of the appellant’s arrest, he had an
outstanding warrant for failure to appear.
Regarding the appellant’s arrest, the trial court ruled as follows:
This Court would find that they had reasonable basis, reasonable
suspicion to justify a brief detention to make inquiry about this
defendant’s connection to the homicide. And for -- since it was
a homicide case, the Court would extend that to the sake of
officer safety to cuff him and take him into custody.
-13-
Now at that point if they’d gotten no information they
would have to just -- if that’s all that we had, they would have
had to release him and try to get a warrant. And I don’t know if
they could get a warrant on that or not, it would be pretty close.
I’m not sure they could get it.
But there is another factor involved here. The fact is,
there was a warrant outstanding for the defendant’s arrest. The
case law is very clear, it doesn’t matter whether the police are
aware of that or not[.]
Regarding the appellant’s waiver of rights, the trial court noted that Investigator Still advised
the appellant of his rights and that the appellant said he understood each right. The court
stated that nothing indicated Investigator Still had intimidated or coerced the appellant and
that the investigator told the appellant he could stop the interview at any time. The court
concluded that the appellant voluntarily waived his Miranda rights and talked with the
investigator. The trial court denied the motion to suppress.
In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings of fact
in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id.
Nevertheless, appellate courts will review the trial court’s application of law to the facts
purely de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Furthermore, the State, as
the prevailing party, is “entitled to the strongest legitimate view of the evidence adduced at
the suppression hearing as well as all reasonable and legitimate inferences that may be drawn
from the evidence.” Odom, 928 S.W.2d at 23.
First, we will address whether the police had probable cause to arrest the appellant.
Both the Fourth Amendment to the United States Constitution and article I, section 7 of the
Tennessee Constitution protect citizens against unreasonable searches and seizures. Our
supreme court has previously noted that, generally, “[A]rticle I, section 7 is identical in intent
and purpose with the Fourth Amendment.” State v. Downey, 945 S.W.2d 102, 106 (Tenn.
1997) (citation and quotation marks omitted). “However, neither the Fourth Amendment nor
Article I, section 7 limit all contact between police and citizens.” State v. Daniel, 12 S.W.3d
420, 424 (Tenn. 2000). Our courts have articulated three categories of police-citizen
interaction and their corresponding evidentiary requirements: “(1) full-scale arrest, which
must be supported by probable cause; (2) brief investigatory detention, which must be
supported by reasonable suspicion of criminal activity; and (3) brief police-citizen encounter
-14-
that requires no objective justification.” State v. Hanning, 296 S.W.3d 44, 48 (Tenn. 2009)
(citations omitted); see also State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006).
Initially, we note that the trial court found that the police officers had reasonable
suspicion to stop the appellant briefly and ask about his connection to the homicide.
However, the evidence established that the officers did not merely stop the appellant in order
to question him briefly. Instead, the officers entered the apartment and ordered him out of
the bathroom for the purpose of placing him under arrest. Therefore, this was not a brief
investigatory stop that had to be supported by reasonable suspicion but a full-blown arrest
that had to be supported by probable cause. See Downey, 945 S.W.2d at 106.
Tennessee Code Annotated section 40-7-103(a)(3) provides that an officer may arrest
a person without a warrant “[w]hen a felony has in fact been committed, and the officer has
reasonable cause for believing the person arrested has committed the felony.” “Our courts
make little, if any, distinction between the terms ‘reasonable cause’ and ‘probable cause’ in
determining whether there exists a basis for an arrest.” State v. Herbert Lee Massey, No.
01C01-9406-CR-00218, 1995 Tenn. Crim. App. LEXIS 736, at **9-10 (Nashville, Sept. 1,
1995). Probable cause “means more than bare suspicion” and “exists where the facts and
circumstances within . . . the officer[’s] knowledge, and of which [he] had reasonably
trustworthy information, are sufficient in themselves to warrant a man of reasonable caution
in the belief that an offense has been or is being committed.” State v. Day, 263 S.W.3d 891,
902 (Tenn. 2008) (quotation marks and brackets omitted). “Whether probable cause is
present depends upon whether the facts and circumstances and reliable information known
to the police officer at the time of the arrest ‘were sufficient to warrant a prudent man in
believing that the [individual] had committed an offense.’” Downey, 945 S.W.2d at 106
(quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
Tennessee Rule of Criminal Procedure 4(b) provides that in the application for the
issuance of an arrest warrant, “[t]he finding of probable cause shall be based upon evidence,
which may be hearsay in whole or in part provided there is a substantial basis for believing
the source of the hearsay to be credible and for believing that there is a factual basis for the
information furnished.” It has long been established that “[w]hile this rule applies itself
particularly to warrants for arrest, the same principle must be considered applicable to
establish probable cause where an arrest has been made without a warrant.” State v.
Raspberry, 640 S.W.2d 227, 228 (Tenn. Crim. App. 1982); see also State v. Tays, 836
S.W.2d 596, 600 (Tenn. Crim. App. 1992).
In the instant case, the only information the police had about the suspect at the time
of the arrest was that he was a black male named Travis, who was missing a front tooth and
had told someone over the telephone that he had shot someone in lot C of Town View
-15-
Towers. The trial court found that this information alone probably would not have been
enough to establish probable cause for the officers to obtain an arrest warrant. We agree that
the information was insufficient to establish probable cause. At the time of the appellant’s
arrest, no one had identified him as the person who had shot the victim or participated in the
robbery. Moreover, nothing in the appellant’s telephone conversation linked him to the
shooting in question. The trial court found that the appellant’s having an outstanding warrant
justified the arrest even though the officers did not know about the warrant.1 However, if
that were true, then a police officer could arrest anyone without probable cause, check the
person’s background for an outstanding warrant, and then use the outstanding warrant as
justification for the warrantless arrest. We note that the police officers in this case did not
even have enough information to check for an outstanding warrant until after they arrested
the appellant and learned his last name was Brabson. Therefore, the evidence preponderates
against the trial court’s findings, and we conclude that the police officers did not have
probable cause to arrest him for killing the victim.
Next, we will address whether the appellant’s statement is sufficiently attenuated from
the illegal arrest to warrant its admission at trial. In determining whether evidence, such as
a statement given to police after an unlawful arrest, is the fruit of a prior illegality, the “apt
question . . . is ‘whether, granting establishment of the primary illegality, the evidence to
which instant objection is made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.’” Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (quoting Maguire, Evidence of Guilt 221 (1959);
see also State v. Garcia, 123 S.W.3d 335, 346 (Tenn. 2003). In our analysis, we may
consider the following factors:
(1) the presence or absence of Miranda warnings; (2) the
temporal proximity of the arrest and the confession; (3) the
presence of intervening circumstances; and finally, of particular
significance, (4) the purpose and flagrancy of the official
misconduct.
State v. Huddleston, 924 S.W.2d 666, 674-75 (Tenn. 1996). The State is required to prove
by a preponderance of the evidence that the evidence is admissible. State v. Dean, 76 S.W.3d
352, 362 (Tenn. Crim. App. 2001).
1
We note that the State’s entire argument regarding this issue consists of the following sentence:
“Further, the trial court correctly found that the officers had probable cause to arrest the defendant before
the interview because he had an outstanding warrant.” Rule 27(a)(7), Tennessee Rules of Appellate
Procedure, requires that a brief include citations to authorities in support of an appellant’s argument. This
rule also applies to the appellee. Tenn. R. App. P. 27(b).
-16-
In the instant case, Investigator Still gave Miranda warnings to the appellant, read a
waiver of rights form to him, and had the appellant sign the form. Therefore, this factor
weighs in favor of the statement’s admissibility. See State v. Carter, 16 S.W.3d 762, 767
(Tenn. 2000). The temporal proximity of the arrest and the confession weighs against the
statement’s admissibility because the time between the illegal arrest and the confession was
short, less than two hours. See State v. Garcia, 123 S.W.3d 335, 346-47 (Tenn. 2003). The
third factor also weighs in favor of inadmissibility because no intervening circumstances
were present. Finally, the purpose and flagrancy of the official misconduct supports
inadmissibility. Neither Investigator Still nor Sergeant Willis testified that they thought they
had probable cause to arrest the appellant for shooting the victim, and neither of them was
aware of the appellant’s outstanding warrant at the time of the arrest. Thus, after considering
the four factors, we conclude that the trial court should have suppressed the appellant’s
confession.
That said, we believe the trial court’s error was harmless. “[T]he issue of whether an
error is harmless does not turn upon the existence of properly admitted evidence that is
sufficient to affirm a conviction. The key question is whether the error likely had an
injurious effect on the jury’s decision-making process.” State v. Dotson, 254 S.W.3d 378,
389 (Tenn. 2008); see Tenn. R. App. P. 36(a). In this case, George Hammontree and
Rebecca Carpenter, eyewitnesses to the shooting, testified that they saw the appellant point
the gun at the victim. Hammontree also testified that just before the shooting, he heard
someone tell the victim to “[g]ive it up.” James Blackwell testified that the appellant told
him the appellant shot the victim in self-defense. However, given that Hammontree, who
was familiar with guns, heard the appellant’s .22 caliber gun fire first, the jury reasonably
rejected the appellant’s self-defense claim. Therefore, although the trial court improperly
admitted the appellant’s statement into evidence, the error was harmless because it was
cumulative to Blackwell’s testimony and did not change the outcome of the trial.
Although we have determined that the trial court should have granted the appellant’s
motion to suppress for lack of probable cause for his arrest, given the possibility of further
appellate review, we will also address whether the appellant voluntarily waived his Miranda
rights. An accused may waive his Miranda rights so long as the waiver is voluntarily,
knowingly, and intelligently made. See State v. Callahan, 979 S.W.2d 577, 581 (Tenn.
1998). To establish a valid waiver of Miranda rights, “the State need only prove waiver by
a preponderance of the evidence. In determining whether the State has satisfied that burden
of proof, courts must look to the totality of the circumstances.” State v. Bush, 942 S.W.2d
489, 500 (Tenn. 1997) (citation omitted). In the course of our examination, we consider the
following factors in determining the voluntariness of a confession: the appellant’s age;
education or intelligence level; previous experience with the police; the repeated and
prolonged nature of the interrogation; the length of detention prior to the confession; the lack
-17-
of any advice as to constitutional rights; the unnecessary delay in bringing the appellant
before the magistrate prior to the confession; the appellant’s intoxication or ill health at the
time the confession was given; deprivation of food, sleep, or medical attention; any physical
abuse; and threats of abuse. Huddleston, 924 S.W.2d at 671. Proof that an accused was
made aware of his Miranda rights, although not conclusive, weighs in favor of the admission
of a confession into evidence. See State v. Carter, 16 S.W.3d 762, 767 (Tenn. 2000).
The appellant contends that he did not voluntarily waive his rights because he could
not read or write well, was forced to sign the waiver form before Investigator Still would tell
him what the interview was about, and was compelled to confess by Investigator Still’s
telling him the interview was the appellant’s chance to give his side of the story. Our review
of the recorded interview shows that Investigator Still read each right to the appellant and
had the appellant initial each right on the waiver form. The appellant hesitated to sign the
form. However, Investigator Still told the appellant that the appellant could stop the
interview at any time, and the appellant signed the form. The appellant was twenty-six years
old at the time of the interview, a high school graduate, and had some previous experience
with the police. The appellant’s detention prior to the interview was brief; the interview was
relatively short, lasting only thirty minutes; and the appellant was advised of his rights before
the interview. The appellant was not intoxicated or ill at the time of the confession; nothing
indicated he had been deprived of food, sleep, or medical attention; and nothing indicated
the police had physically abused him or threatened abuse. Therefore, we agree with the trial
court that the circumstances surrounding the confession show the appellant voluntarily
waived his Miranda rights.
D. Witness Identifications
The appellant contends that the trial court erred by refusing to consider his motion to
suppress Hammontree’s and Carpenter’s pretrial and in-court identifications of him as the
shooter. The State contends that the trial court properly dismissed the motion for lack of
specificity. We conclude that the appellant has waived this issue.
Before trial, the appellant filed a motion to suppress “any identification made of him
by George Hammontree and/or Rebecca Carpenter,” alleging that the identifications were
based on “unconstitutional identification procedures concerning presentation and production
of photographs, including single photographs.” At the pretrial motions hearing, counsel for
the appellant alleged that Hammontree and Carpenter had identified the appellant from a
single photograph as opposed to photograph arrays. According to defense counsel, “[W]hat
we were given are videotapes that show these individuals talking to [Investigator Still], that
those individuals signed single photographs identifying Mr. Echols as the individual that they
saw.” Therefore, the identification procedures were unduly suggestive, unreliable, and
-18-
tainted any potential in-court identifications. The trial court noted that the written motion
lacked specificity but that “if you want to call [Investigator Still] to the stand and go into the
matter, I’m here to listen.” Counsel did not say anything further, and the trial court moved
on to the appellant’s motion to suppress his statement. At the conclusion of that suppression
hearing, counsel again brought up his motion to suppress the identifications, and the trial
court stated that it was denying the motion for lack of specificity.
The appellant contends that the trial court erred by refusing to consider the motion.
However, the motions hearing transcript reveals that the trial court gave counsel the
opportunity to question Investigator Still about the matter. Although Investigator Still was
present and testified during the hearing on the motion to suppress the appellant’s statement,
counsel decided, for whatever reason, not to question him about Hammontree’s and
Carpenter’s identifications. Therefore, this issue has been waived. See Tenn. R. App. P.
36(a).
E. Request for Mistrial
The appellant contends that the trial court erred by denying his motion for a mistrial
when the State implied during its opening statement that the appellant had a criminal record.
The State argues that the trial court properly denied the motion for a mistrial. We agree with
the State.
During his opening statement, the prosecutor stated as follows:
On that particular day, June 26th, I think Mr. Echols had
some type of process out. He was taken to jail here. And Steve
Still was informed this fellow that you’ve been calling Travis
Brabson, we’ve got him as Echols. And that’s why his name is
Echols. The system, if you will, that provides names,
identifying information, date of birth, social security number,
those types of things, this defendant has used the name of Travis
Echols frequently and often.
The defense objected and moved for a mistrial, arguing that the prosecutor’s comment about
the appellant’s using the name Travis Echols “frequently and often” implied the appellant
had a prior arrest record. The prosecutor argued that because defense counsel continually
referred to the appellant as “Mr. Brabson,” the State was entitled to tell the jury why the
appellant had been indicted as Travis Echols. The trial court ruled as follows:
-19-
[W]hat I heard the General say was that Mr. Echols is known to
the police department, the criminal justice system as Echols, and
that’s the end of that sentence. And Mr. Echols has used the
name frequently and often. He didn’t say he’s been charged
with many crimes or any crimes. It’s getting close, General. I
don’t want you to go into any kind of criminal record or imply
that he has one.
The trial court stated that the prosecutor had not “done that at this point” and denied the
motion for a mistrial. Defense counsel asked the trial court to instruct the jury that the
prosecutor’s argument was improper, but the trial court refused, stating, “I’m afraid the
instruction you’re asking me to give them will put in their minds now to connect frequently
and often with the proposition of being arrested.” The appellant contends that the trial court
should have granted his request for a mistrial.
Opening statements “are intended merely to inform the trial judge and jury, in a
general way, of the nature of the case and to outline, generally, the facts each party intends
to prove.” Harris v. Baptist Memorial Hospital, 574 S.W.2d 730, 732 (Tenn. 1978). “Trial
courts have wide discretion in controlling arguments of counsel, including opening
statements, and a trial court’s ruling concerning the arguments of counsel will not be reversed
absent an abuse of discretion.” State v. Stacy Johnson, No. W2004-00464-CCA-R3-CD,
2005 Tenn. Crim. App. LEXIS 262, at *41 (Jackson, Mar. 15, 2005) (citing State v. Sutton,
562 S.W.2d 820, 823 (Tenn. 1978)).
We agree with the trial court that the prosecutor’s statements only informed the jury
that the appellant was known to the police department as Travis Echols. The prosecutor did
not inform the jury as to how the police knew him by that name. We note that on cross-
examination, the prosecutor questioned the appellant extensively about his use of the last
names Brabson and Echols and that the appellant admitted he continued to use the name
Echols even though his last name was legally changed to Brabson when he was fifteen years
old. The prosecutor’s opening statement was not improper. Therefore, the trial court did not
err by denying the appellant’s request for a mistrial.
F. Darlene Thomas’ Testimony
The appellant contends that the trial court erred by allowing Darlene Thomas to testify
about the victim’s good character, by allowing her to testify about the victim’s habit of
carrying large sums of money, and by commenting to the jury about the habit. He also
contends that the trial court erred by limiting his cross-examination of Thomas because he
was entitled to show she was biased against him. The State concedes that Thomas should
-20-
not have testified about the victim’s “background information” but argues that the error was
harmless. The State also argues that the trial court properly allowed Thomas to testify about
the victim’s habit of carrying money and properly limited the appellant’s cross-examination
of her. We conclude that the appellant is not entitled to relief.
1. Victim’s good character
Thomas testified that the victim served in the United States Army, got married, and
had four children. She said that her mother, the victim’s wife, became paralyzed in 1982 and
that the victim had to look after his wife and their children. In 2000, Thomas’s mother was
placed in a nursing home because the victim could no longer care for her. Thomas said that
her mother died two years later and that the victim’s mental capacity “started going down hill
a little bit.” The State asked Thomas to tell the jury about the victim’s “relationship” with
the 1958 Buick, and the defense objected, arguing that Thomas’ testimony was irrelevant.
The trial court ruled that the State could “personalize the victim to some extent” but that the
State should “wrap it up.” The appellant contends that Thomas’ testimony about the victim’s
good character was improper.
Tennessee Rule of Evidence 404(a) provides that, generally, “[e]vidence 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.” The State concedes that Thomas’
background testimony about the victim was improper. However, as noted by the State, the
appellant did not object to Thomas’ testimony until the State asked her about the victim’s
relationship with the Buick. At that point, the trial court told the State to “wrap it up,” and
the State stopped questioning Thomas about her father’s background. By failing to make a
contemporaneous objection to Thomas’ testimony, the appellant has waived the issue. See
Tenn. R. App. P. 36(a).
2. Habit Testimony
During Thomas’ direct examination testimony, the State asked if the victim carried
“[l]ots of money,” and she said yes. The defense objected, and the trial court instructed the
State to establish Thomas’ personal knowledge for her testimony. The State asked Thomas
if she had seen the victim carrying money, she said yes, and the defense objected again. The
trial court said, “This is evidence of habit.” The defense disagreed, but the trial court
instructed the jury as follows:
The Court understands the evidence fairly to be that when the
decedent went out and did whatever he did during his daily
conduct, it was his habit to carry money with him. I’ll allow that
-21-
in as evidence of a habit.
The State resumed questioning Thomas. She said the victim did not have a bank account and
“might have seven or eight thousand dollars on him at one time.” The appellant argues that
Thomas’ testimony was not habit evidence and that it prejudiced him because it supported
the State’s unsubstantiated claim that the victim had cash with him on the day of the
shooting. The appellant also claims that the trial court’s comment to the jury about the
evidence was improper.
Rule 406(a), Tennessee Rules of Evidence, provides in relevant part, “Evidence of the
habit of a person . . . whether corroborated or not and regardless of the presence of
eye-witnesses, is relevant to prove that the conduct of the person . . . on a particular occasion
was in conformity with the habit or routine practice.” A “habit” is defined as “a regular
response to a repeated specific situation.” Tenn. R. Evid. 406(b). “The key element of proof
of either habit or routine practice is extreme regularity.” Neil P. Cohen et al., Tennessee Law
of Evidence § 4.06[6][a] (5th ed. 2005).
Turning to the instant case, the State did not ask Thomas how often the victim carried
large amounts of money on his person or if he did so with extreme regularity. Therefore, we
question whether her testimony constitutes habit evidence, and the trial court should not have
referred to the victim’s carrying money as part of his “daily conduct.” In any event, Rebecca
Carpenter testified that the victim pulled out his wallet shortly before the shooting and that
she saw “[l]ots of money. Lots of money.” Therefore, we conclude that any error in
admitting Thomas’ testimony was harmless. See Tenn. R. App. P. 36(a).
3. Cross-examination of Thomas
During the appellant’s cross-examination of Thomas, defense counsel asked, “Ms.
Thomas, who’s Bennie Pruitt?” Thomas answered, “George Hammontree’s aunt.” Defense
counsel then asked, “Who’s got him charged with a criminal offense, right?” The State
objected, and the trial court held a bench conference. During the conference, the defense
informed the trial court that Thomas had been contacting Pruitt, the victim of Hammontree’s
pending forgery charges, and that defense counsel should be allowed to question Thomas
about her bias toward Hammontree. The trial court ruled that the defense could question
Thomas about her relationship with Hammontree, but “that’s as far as it goes. We’ll wait for
Mr. Hammontree to testify.” Cross-examination resumed, and the following exchange
occurred:
Q Do you have a relationship with George
Hammontree?
-22-
A No.
Q Why would you be calling Ms. Pruitt then?
[The State]: Objection, your Honor. I thought the Court
sustained this.
THE COURT: It is cross, if she’s got an answer as to
why she would call Ms. Pruitt then I’ll let her answer. Go
ahead.
A Because I found out that that was Hammontree’s
aunt.
....
[Defense counsel]: Under the Court’s ruling, we have no
further questions.
The appellant contends that the trial court erred by limiting his cross-examination of Thomas
because he was entitled to reveal her relationship with Hammontree and her efforts to help
Hammontree with pending charges in exchange for his testimony against the appellant. The
State argues that the trial court properly limited the cross-examination because it was
irrelevant.
A defendant’s constitutional right to confront the witnesses against him includes the
right to conduct meaningful cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51
(1987); State v. Brown, 29 S.W.3d 427, 430-31 (Tenn. 2000). Denial of a defendant’s right
to effective cross-examination is “constitutional error of the first magnitude” and may violate
the defendant’s right to a fair trial. State v. Hill, 598 S.W.2d 815, 819 (Tenn. Crim. App.
1980) (quoting Davis v. Alaska, 415 U.S. 308 (1974)). “The propriety, scope, manner and
control of the cross-examination of witnesses, however, rests within the discretion of the trial
court.” State v. Dishman, 915 S.W.2d 458, 463 (Tenn. Crim. App. 1995). Furthermore, “a
defendant’s right to confrontation does not preclude a trial court from imposing limits upon
cross-examination which take into account such factors as harassment, prejudice, issue
confrontation, witness safety, or merely repetitive or marginally relevant interrogation.”
State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. App. 1994). We will not disturb the limits
that a trial court has placed upon cross-examination unless the court has unreasonably
restricted the right. Dishman, 915 S.W.2d at 463.
-23-
The trial court did not explain why it was limiting the appellant’s cross-examination
of Thomas. In any event, the appellant did not make an offer of proof regarding what
Thomas’ testimony would have been. Moreover, although the trial court indicated that the
defense could cross-examine Hammontree about the issue, the defense did not ask
Hammontree about his having contact or a relationship with Thomas. Therefore, we cannot
say that the trial court unreasonably restricted the appellant’s right to cross-examine her.
G. Redacted Video Recording
The appellant contends that the trial court erred by allowing the State to play for the
jury a redacted recording of his statement when the State had not provided the defense with
a redacted copy. The State argues that the trial court did not err by allowing the State to play
the redacted version for the jury. Although we have already determined that the appellant’s
statement to Investigator Still was inadmissible, we will address this issue to facilitate further
appellate review. We conclude that the trial court erred by allowing the State to play the
redacted recording and by not allowing the appellant to cross-examine Investigator Still about
the redacted portions. Nevertheless, we conclude that the errors were harmless.
During Investigator Still’s testimony, the State requested to play a redacted video
recording of the appellant’s statement. The State told the trial court, “I have redacted out
references to him going to jail, having a record, whatever.” Defense counsel objected
because he had not seen the redacted version and asked to watch the redacted recording
“because I don’t know whether they’ve taken out some of the material that we need in here,
your honor.” The trial court allowed the State to play the redacted recording for the jury and
ordered that it be made an exhibit for purposes of appeal. However, the trial court did not
allow the appellant to watch the recording prior to it being played and prohibited the
appellant from questioning Investigator Still about the redactions on cross-examination.
The appellant contends that he was prejudiced by the redacted statement because it
excluded Investigator Still’s telling the appellant that (1) “there is one spectrum where you
could spend the rest of your life in jail . . . and it just depends on what you tell me. But it’s
a big difference between cutting a little bit of time and spending the rest of your life in jail”;
and (2) “and if you don’t need to spend the rest of your life in jail, I don’t want to be a part
of that, but you’ve got to be straight up with me, and you’ve got to be truthful . . . I know the
guy shot at you.” The appellant argues that those redacted comments prevented the jury from
being able to consider whether his confession was reliable and voluntary.
Initially, we note that redaction of the appellant’s statement was not warranted in this
case. The State argued at trial and argues on appeal that the redaction was proper because
evidence of possible punishment is prohibited by Tennessee Code Annotated section 40-35-
-24-
201(b), which provides, in pertinent part, that [i]n all contested criminal cases, except for
capital crimes . . . the judge shall not instruct the jury, nor shall the attorneys be permitted to
comment at any time to the jury on possible penalties.” During the redacted portions of the
video recording, Investigator Still commented about the possibility of the appellant spending
his “life in jail.” However, at the time of the interview, the appellant had not been charged
with a crime. In our view, Investigator Still was not commenting on a life sentence for
felony murder but was referring to the possibility that the appellant was facing a lengthy
sentence in confinement for shooting the victim. In other words, his comments were not the
references to punishment contemplated by the statute.
Furthermore, we are puzzled as to why the State refused to provide the appellant with
a redacted version of the recorded statement prior to trial or why the trial court refused to
allow the appellant to view the redacted version, which was only about thirty minutes in
length, prior to it being played for the jury. Tennessee Rule of Evidence 106, the “rule of
completeness,” provides that “[w]hen a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the introduction at that time of any other
part of any other writing or recorded statement which ought in fairness to be considered
contemporaneously with it.” Without the redacted version, the appellant could not determine
what portions of the interview had been edited out of the original. Therefore, he had no way
to argue which redacted portions, if any, ought to be considered contemporaneously with the
redacted recording.
The appellant argued that he should have been allowed to question Investigator Still
about the redacted portions because the jury needed to consider the circumstances
surrounding the taking of the statement. However, the trial court refused, noting that it had
already determined the confession was voluntary. Although the trial court determines the
admissibility of a confession, the jury “is to determine whether defendant made the
confession and whether the statements contained in it are true. To aid them in resolving these
questions the jury may hear evidence of the circumstances under which the confession was
procured.” State v. Pursley, 550 S.W.2d 949, 950 (Tenn. 1977) (quoting Wynn v. State, 181
S.W.2d 332, 333 (1944)). Given that the investigator pressured the appellant to talk to him
in the redacted portions, the trial court should have allowed the appellant to cross-examine
Investigator Still about the redacted portions.
In any event, we hold that the errors were harmless. The appellant claims he was
prejudiced because the redacted portions of the statement deprived the jury from determining
the reliability and voluntariness of the statement. However, on redirect examination,
Investigator Still described, in detail, the tactics he used to get the appellant to talk with him.
He explained that he used the “minimalization” technique, in which “you make light of what
someone does.” Investigator Still testified that he used that technique by telling the
-25-
appellant, “I know the guy shot at you,” implying the appellant shot the victim in self-
defense. Investigator Still also said he lied to the appellant in order to get the appellant to
talk with him because at that point in the investigation, “I had virtually nothing.” In light of
his testimony and the appellant’s failure to show how he was prejudiced, we conclude that
the appellant’s not being allowed to question Investigator Still about the redacted portions
of the recording was harmless. See Tenn. R. App. P. 36(a).
H. Reenactement Photographs
The appellant contends that the trial court erred by allowing the State to introduce into
evidence reenactment photographs of the crime. The State argues that the photographs were
relevant to show the trajectory of the bullets. We conclude that the trial court properly
admitted the photographs into evidence.
During Investigator Still’s direct testimony, the State requested to show him
photographs of a reenactment conducted by members of the Knoxville Police Department
and the district attorney’s office. The appellant objected, the State argued the photographs
were relevant to show the trajectories of the bullets, and the trial court ruled the photographs
were admissible. Investigator Still testified as to how the crime was reenacted. He said that
a female, who was the same height as the victim, sat in the driver’s seat of the Buick for the
reenactment and that the purpose of the reenactment was to “[measure] down from the top
of her shoulder to approximately where the wounds would be to try to show some trajectory
and what could and could not happen.” He explained that the female “victim” leaned to the
right and that the police used a tape measure, trajectory rod, and long-barrel gun to show how
the bullets could have entered her body from different angles. The appellant contends that
the trial court erred by admitting the photographs into evidence because they do not depict
a true and accurate portrayal of the shooting.
In State v. Underwood, 669 S.W.2d 700, 704 (Tenn. Crim. App. 1984), this court
stated that an in-court reenactment may be admissible, especially when the defendant has the
opportunity, as the appellant did in this case, to cross-examine the witnesses who conducted
the demonstration. Furthermore,
Evidence may be given of experiments, demonstrations, and
tests made out of court and not in the presence of the jury upon
the same principles which permit them to be conducted in the
jury’s presence. It is a matter peculiarly within the discretion of
the court to decide the admissibility of such evidence in the light
of all the surrounding facts and circumstances. The test for
exclusion is whether the [demonstration] would confuse rather
-26-
than aid the jury.
State v. Robertson, 130 S.W.3d 842, 855 (Tenn. Crim. App. 2003). The decision regarding
the admissibility of photographs also lies within the trial court’s discretion. State v. Banks,
564 S.W.2d 947, 949 (Tenn. 1978). In order to be admitted as evidence, a photograph must
be relevant to an issue at trial. Tenn. R. Evid. 402; State v. Braden, 867 S.W.2d 750, 758
(Tenn. Crim. App. 1993). Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. However, relevant
evidence “may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403.
The appellant cross-examined Investigator Still about the reenactment and its
limitations. During Dr. Mileusnic-Polchan’s testimony, the State showed her a reenactment
photograph of the female “victim” leaning to the right, and the doctor stated that it was
“consistent with what I see in the body.” In our view, the reenactment and resulting
photographs were relevant to show the victim’s and the appellant’s possible positions at the
time of the shooting. Moreover, the reenactment and photographs aided the jury. Therefore,
the trial court did not err by admitting the photographs into evidence.
I. State’s Cross-examination of Appellant
The appellant contends that the trial court erred by allowing the State to cross-examine
him about his last name and dismissed charges. The State argues that its cross-examination
was relevant to the appellant’s credibility. We conclude that the appellant has waived any
argument regarding the State’s cross-examination about his name and that the trial court
properly allowed cross-examination about the dismissed charges.
Before the appellant testified, the State reminded the trial court in a jury-out hearing
that it had filed a pretrial motion pursuant to Tennessee Rule of Evidence 608 to cross-
examine the appellant about his criminal record. Specifically, the State planned to question
the appellant about a 2001 charge for passing a forged check and a 1998 charge for
possessing a stolen vehicle. The State also asked to question the appellant about why he had
signed his name as Travis Echols on a 1998 guilty plea to misdemeanor assault when his
legal name was Travis Brabson. The defense objected, arguing that the charges had been
dismissed, and, therefore, no factual basis existed for the inquiry. As to the name on the
1998 guilty plea, the defense argued that any reference to the assault was extremely
prejudicial. The trial court ruled that the State could ask the appellant about the charges
because “there was a factual basis for the accusation and that’s all Rule 608 requires.”
However, the court held that the State could not ask the appellant about his name in
-27-
conjunction with the assault. The following exchange then occurred:
[The State]: But . . . I can ask him about what names he’s used
since his last name was changed, I take it. I mean, that’s not
anything subject to notice. That’s fair cross-examination I
would think.
THE COURT: Well, clearly, the fact that he has two
names has come out over and over. You can ask him about it.
You can ask him what his practice is with regard to using two
names.
As to the appellant’s claim regarding cross-examination about his last name, the
defense argued that reference to the guilty plea for assault was prejudicial. The trial court
sustained the objection. The State then requested to ask the appellant about his general use
of two different last names, and counsel did not object. Counsel also did not object during
the State’s cross-examination of the appellant about his last names. Therefore, this issue has
been waived. See Tenn. R. App. P. 36(a).
Regarding the charges for passing a forged check and possessing a stolen vehicle, the
appellant argued at trial that cross-examination was improper because the charges were
dismissed, and, therefore, no factual basis existed for the State’s inquiry. Tennessee Rule of
Evidence 608(b) provides that
[s]pecific instances of conduct of a witness for the purpose of
attacking or supporting the witness’s character for truthfulness,
other than convictions of crime as provided in Rule 609, may
not be proved by extrinsic evidence. They may, however, if
probative of truthfulness or untruthfulness . . ., be inquired into
on cross-examination.
Before a witness can be questioned, the trial court, upon request, must hold a hearing to
determine whether “the alleged conduct has probative value and that a reasonable factual
basis exists for the inquiry.” Tenn. R. Evid. 608(b)(1). Also, if the witness is the defendant,
the trial court must determine whether “the conduct’s probative value on credibility
outweighs its unfair prejudicial effect on the substantive issues.” Tenn. R. Evid. 608(b)(3).
As this court has stated, “A prior instance of conduct amounting to a theft would be
admissible on the question of an individual’s credibility under Tennessee Rule of Evidence
608(b) even if no conviction resulted from the conduct.” State v. Mario Gray, No.
-28-
M2006-00398-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 990, at *24 (Nashville, Dec. 17,
2007). Therefore, the mere fact that the charges were dismissed does not eliminate the
existence of a reasonable, factual basis for the inquiry.
We note that on appeal, the appellant also argues that the charges were not probative
of his truthfulness and that their probative value on credibility did not outweigh their unfair
prejudicial effect. The trial court did not state whether the charges had probative value as
required by Rule 608(b)(1). However, passing a forged check and possession of a stolen
vehicle would be probative of a defendant’s truthfulness. See State v. Wendell Ray
Williams, No. M2001-02296-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 312, at *22
Nashville, Apr. 4, 2003) (prior convictions for passing forged documents relevant to
credibility); State v. Odell Smith, 02C01-9707-CR-00259, 1998 Tenn. Crim. App. LEXIS
808, at **4-5 (Jackson, Aug. 23, 2005) (conviction for receiving stolen property relevant to
credibility) (citing State v. Robert Davis, No. 02C01-9407-CC-00148, 1995 Tenn. Crim.
App. LEXIS 711 (Jackson, Aug. 23, 1995)). Moreover, given that the charges were
dissimilar to the crime in this case, their probative value outweighs their unfair prejudicial
effect on substantive issues. The appellant is not entitled to relief.
J. Jailhouse Telephone Call
Next, the appellant contends that during the State’s cross-examination of him, the trial
court improperly allowed the State to play a recording of a jailhouse telephone call he made
to his mother. He contends that the telephone call was irrelevant and portrayed him in an
“unflattering manner” because his mother used profanities throughout their conversation.
However, at trial, the appellant objected on the basis that the State could not play the
recording without first asking the appellant about his statement. The appellant did not argue
that the recording was irrelevant or prejudicial. See Tenn. R. App. P. 36(a). Moreover, the
recording is not in the appellate record. See Tenn. R. App. P. 24(a). Therefore, this issue
has been waived.
K. Brady Violations
The appellant contends that the State violated Brady v. Maryland, 373 U.S. 83, 87
(1963), by failing to provide the defense with (1) names of people who heard gunshots on
the day of the shooting; (2) a recording of James Blackwell’s statement to Investigator Still;
and (3) Patricia Hickman’s polygraph results. The State argues that the appellant has failed
to establish a Brady violation. We agree with the State.
In Brady, 373 U.S. at 87, the United States Supreme Court held that the State has a
constitutional duty to furnish the defendant with exculpatory evidence pertaining to the
-29-
defendant’s guilt or innocence or to the potential punishment faced by the defendant.
Specifically, “the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. The State’s duty to
disclose exculpatory evidence extends to evidence which may be used by the accused for
impeachment purposes. Giglio v. United States, 405 U.S. 150, 154-55 (1972).
In order to prove that a Brady violation exists, a defendant must show that (1) he
requested the information (unless the evidence is obviously exculpatory, in which case the
State is obligated to release such evidence regardless of whether or not it was requested); (2)
the State suppressed the information; (3) the information was favorable to the defendant; and
(4) the information was material. State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995). The
appellant bears the burden of proving a Brady violation by a preponderance of the evidence.
Id.
Factors three and four are at issue in this case. Regarding the third factor, evidence
is favorable if it “‘provides some significant aid to the defendant’s case, whether it furnishes
corroboration of the defendant’s story, calls into question a material, although not
indispensable, element of the prosecution’s version of the events, or challenges the credibility
of a key prosecution witness.’” Johnson v. State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (quoting
Commonwealth v. Ellison, 379 N.E.2d 560, 571 (Mass. 1978)). Regarding the fourth factor,
“Evidence is deemed to be material when ‘there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.’” Johnson, 38 S.W.3d at 58 (quoting Edgin, 902 S.W.2d at 390). The United
States Supreme Court explained that the touchstone of materiality is a “reasonable
probability” of a different result, and the adjective is important. The question is not whether
the defendant would more likely than not have received a different verdict with the evidence,
but whether in its absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence. A “reasonable probability” of a different result is accordingly shown
when the government’s evidentiary suppression “undermines confidence in the outcome of
the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (quoting United States v. Bagley, 473 U.S.
667, 678 (1985)). In other words, a defendant must show that “the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence
in the verdict.” Kyles, 514 U.S. at 435.
Regarding the names of people who heard gunshots, Investigator Still testified on
cross-examination that he wrote in his notes some of the names of witnesses who heard
gunshots on the day of the shooting. However, he also said that he did not talk to any of
those witnesses to ask them about the pattern of the shots. Therefore, nothing indicates that
this information was favorable or material to the defense.
-30-
As to Blackwell’s statement, the appellant learned during Blackwell’s testimony that
Blackwell had given an audio-recorded statement to Investigator Still. The appellant
requested the recording, the State gave the recording to the defense, and the trial court gave
defense counsel thirty minutes to listen to it. In the recorded statement, Blackwell claimed
that the appellant told him that the appellant shot the victim in self-defense. Although this
information was favorable, Blackwell had just testified about the appellant’s self-defense
claim, and the appellant had the opportunity to question Blackwell about his testimony and
about Blackwell’s statement to Investigator Still. Therefore, the appellant has failed to show
that the statement was material to the defense.
Regarding Patricia Hickman’s polygraph results, Investigator Still testified that he
investigated Hickman, she came to the police department for an interview, and he was able
to eliminate her as a suspect. The defense requested a bench conference, informed the court
that Hickman had taken a polygraph test, and requested a copy of the test results. The trial
court said, “I’ll have to think about that. I don’t think it comes in.” On cross-examination,
Investigator Still acknowledged that Hickman had taken a polygraph, and the defense asked
him, “And, in fact, she flunked that polygraph test[?]” The State objected, and the trial court
sustained the objection. Nothing indicates that Hickman had anything to do with the victim’s
death or had any information about the shooting, and Investigator Still said he eliminated her
as a suspect. The appellant has failed to show the polygraph results were favorable or
material to the defense.
L. Cross-examination About Hickman
The appellant contends that the trial court erred by refusing to allow him to cross-
examine Investigator Still about how he was able to eliminate Hickman as a suspect. We
find no merit to this claim.
The defense asked the investigator on cross-examination if Hickman had taken and
failed a polygraph test, and the State objected. The defense requested a bench conference
and asked that it be allowed to question the investigator about the polygraph because the
investigator “brought up the fact that he says he’s cleared this person.” The trial court
refused stating, “He could have cleared her any number of ways. He didn’t bring up [the]
polygraph, you did. I’m sustaining the objection.”
The trial court would not allow the appellant to question Hickman about the polygraph
but noted that other factors could have played into the investigator’s decision to clear
Hickman as a suspect. The defense could have continued questioning Investigator Still about
those other factors but chose not to do so. See Tenn. R. App. P. 36(a). Therefore, he is not
entitled to relief.
-31-
M. Pending Charges Against Hammontree
The appellant contends that the trial court erred by preventing him from informing the
jury that Hammontree’s pending charges had been dismissed. The State argues that the trial
court correctly refused to allow the appellant to inform the jury about the dismissed charges
because the appellant has failed to show the charges were dismissed in return for
Hammontree’s testimony. We agree with the State.
On the second day of trial, Hammontree testified on cross-examination that charges
for theft and forgery were pending against him. On redirect examination, Hammontree
testified that he was charged with those crimes in October 2006, which was after he came
forward with information about the victim’s shooting, and that the State had not promised
him anything in return for his testimony. On the fourth day of trial, the defense informed the
trial court that “we understand that the charges against Mr. Hammontree were nolle prossed”
and that “it’s appropriate to bring that to the jury’s attention since he was asked about
pending charges.” The State objected, saying, “There’s no proof that his charges were
dismissed because he testified the way the State wanted him to. That’s what the argument
is. Absolutely none and it’s insulting[.]” The defense did not ask to recall Hammontree to
the stand but asked the court to take judicial notice of the nolle prossed charges. The trial
court denied the appellant’s request.
As this court has stated,
It is a fundamental principle of law that an accused has
the right to cross-examine prosecution witnesses to impeach the
credibility or establish the motive or prejudice of the witness.
This includes the right to cross-examine a prosecution witness
regarding any promises of leniency, promises to help the
witness, or any other favorable treatment offered to the witness.
State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993). When the State enters into
an agreement with a witness in exchange for the witness’ cooperation, basic fairness dictates
that all of the compromise is open for scrutiny and inquiry. State v. Ingram, 638 S.W.2d 428,
430 (Tenn. Crim. App. 1982).
In this case, Hammontree testified on redirect examination that he had not been
promised anything in exchange for his testimony. Moreover, after the defense learned the
charges had been nolle prossed, the State adamantly denied that the charges had been nolle
prossed in exchange for Hammontree’s testimony. The appellant has not presented any proof
that the State lied about entering into a deal with Hammontree, and the appellant did not
-32-
make an offer of proof by questioning Hammontree about the nolle prossed charges.
Therefore, we cannot say the trial court erred by refusing to allow the appellant to inform the
jury that Hammontree’s charges were nolle prossed.
N. Defense Investigator
The appellant contends that the trial court erred by making his investigator leave the
courtroom during a portion of the trial when the investigator was not a witness. The State
argues that the trial court did not abuse its discretion by removing the investigator from the
courtroom. We conclude that the appellant is not entitled to relief.
After the first witness testified, the State requested that the appellant’s investigator be
removed from the courtroom, stating as follows:
Your Honor, the State is moving to have Mr. Cohan, the
investigator for Mr. Echols, placed out under the rule. The State
asked for the rule, [defense counsel] asked for the rule at the
start of this trial. And the State has reason to believe that Mr.
Cohan has interviewed state witnesses.
Now, to the extent that that may give rise to prior
inconsistent statements, he’s obviously a witness there. But the
State also has reason to believe after talking with some
witnesses that Mr. Cohan may have attempted to influence one
or more witnesses to appear or not appear in this proceeding.
So I think it’s very possible he may become a witness in
some form or fashion for one side or the other. We ask he be
removed under the rule.
The defense objected, stating that “[w]e have not intended to call Mr. Cohan” and that “we
have Mr. Cohan available for preparation in cross-examination of these witnesses.” The trial
court asked Cohan to wait outside the courtroom “[i]n an abundance of caution.”
Later during the trial, the following exchange occurred:
[Defense counsel]: You have made it difficult for me to
try this case because you have told my investigator that there is
no good faith basis to even be removed from this courtroom and
try this. And yet the State’s witnesses get to stay in and out,
-33-
whether or not they may be recalled or not. What’s [the State’s]
good faith basis that Mr. Cohan is going to be called as a
witness in this case?
[The State]: I’ve already stated that.
THE COURT: Yeah.
[Defense counsel]: He hasn’t stated anything --
THE COURT: Yes, [the State] has said he has evidence
that your investigator may have tried to intimidate one of the
State’s witnesses and that he may call him to the stand and
inquire into that. That’s his basis for telling the Court that he
may call your investigator to the stand.
Subsequently, the defense raised the issue again, stating,
Mr. Cohan is an integral part of my trial preparation. Your
Honor has placed him under the rule, the rule for purposes that
are essential to trial preparation, I would like to be able to talk
and speak and use Mr. Cohan as an investigator as I would
under normal situations, and sometimes that involves talking to
my client. The Court has restricted me from using Mr. Cohan
in that capacity and we would ask relief from that part of the
rule. We still haven’t seen anything that has to do with any
rebuttal that Mr. Cohan may have in this case.
The investigator remained outside the courtroom.
After Rebecca Carpenter testified, the defense argued for the third time that Cohan
was essential to trial preparation and asked that he be relieved from the rule. The State said,
“Your Honor, my concern was with this last witness and the issue didn’t come up.” The trial
court allowed Cohan to return to the courtroom.
Rule 615, Tennessee Rules of Evidence, provides, in pertinent part,
At the request of a party the court shall order witnesses,
including rebuttal witnesses, excluded at trial or other
adjudicatory hearing. . . . This rule does not authorize exclusion
-34-
of (1) a party who is a natural person, or (2) a person designated
by counsel for a party that is not a natural person, or (3) a person
whose presence is shown by a party to be essential to the
presentation of the party’s cause. This rule does not forbid
testimony of a witness called at the rebuttal stage of a hearing if,
in the court’s discretion, counsel is genuinely surprised and
demonstrates a need for rebuttal testimony from an
unsequestered witness.
“Under subsection (3) . . ., the court has discretion to allow a witness to remain in the
courtroom or even at counsel table if the witness’s presence is ‘essential to the presentation
of the party’s cause.’” Tenn. R. Evid. 615, Advisory Comm’n Comments. “The purpose of
the rule is to prevent one witness from hearing the testimony of another and adjusting his
testimony accordingly.” State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992). “‘The party
seeking to avoid sequestration bears the burden of proving that a Rule 615 exemption
applies.’” Frankie Donald Releford v. State, No. E2004-00695-CCA-R3-PC, 2005 Tenn.
Crim. App. LEXIS 281, at *9 (Knoxville, Mar. 28, 2005) (quoting El Paso Pitts v. State, No.
W2001-01563-CCA-R3-PC, 2002 Tenn. Crim. App. LEXIS 353, at *9 (Jackson, Apr. 17,
2002)). A defendant is not entitled to relief for a Rule 615 violation unless the defendant can
show prejudice. See id. at 424.
The State indicated that it may call the investigator as a witness. Moreover, although
defense counsel stated that he did not intend for the investigator to testify, counsel also did
not say definitively that the investigator would not do so. Therefore, the investigator was
subject to sequestration unless the appellant could show he was exempt as an essential
person. See State v. Billy Joe Henderson, No. 03C01-9804-CR-00139, 1999 Tenn. Crim.
App. LEXIS 614, at **37-39 (Knoxville, June 18, 1999).
Although the defense argued repeatedly that Cohan was essential to the appellant’s
case, the trial court seemed concerned only with the fact that Cohan may testify during the
trial. The trial court did not address whether Cohan was essential to the presentation of the
appellant’s cause. We note that a defense investigator can qualify as “essential” under the
third exemption of Rule 615. See United States v. Ortiz, 10 F. Supp. 2d 1058 (N.D. Iowa
1998) (court-appointed defense investigator exempt as essential under Rule 615); see
generally Henderson, No. 03C01-9804-CR-00139, 1999 Tenn. Crim. App. LEXIS 614, at
**38-39 (panel of this court unable to determine whether defense investigator exempt as
essential because defendant failed to provide adequate record on appeal). In addition, “since
counsel, not the judge, is intimately familiar with the theories and proof to be used in the
case, the court should be hesitant to second guess counsel’s assessment of a witness’s role
and importance.” Cohen, Tennessee Law of Evidence § 6.15[6].
-35-
In any event, the appellant alleges that the Rule 615 violation “substantially
prejudiced” his trial preparation and cross-examination of witnesses. However, he has not
explained how not having his investigator in the courtroom affected his trial preparation or
cross-examination of witnesses or provided any examples of prejudice. Therefore, he is not
entitled to relief.
O. Felony Murder Instruction
The appellant contends that the trial court erred by instructing the jury that felony
murder committed during the perpetration of robbery includes the attempt to commit robbery
when the indictment did not charge attempt. The State argues that the trial court properly
instructed the jury because the indictment specifically referred to the felony murder statute
and the trial court used the pattern instruction for felony murder. We agree with the State.
The indictment charged the appellant as follows:
The Grand Jurors for the State of Tennessee, upon their
oaths, present that TRAVIS KINTE ECHOLS, ALIAS,
heretofore, to-wit: On or about the 18th day of June, 2005, in the
State and County aforesaid, did unlawfully kill Robert Steely
during the perpetration of Robbery, in violation of T.C.A. 39-
13-202, and against the peace and dignity of the State of
Tennessee.
The appellant claimed that because the indictment did not allege the murder was committed
during the attempt to commit robbery, the trial court should remove the attempt language
from the jury instruction. The State argued that the trial court should give the pattern
instruction for felony murder. The trial court agreed with the State and instructed the jury,
in pertinent part, that in order to find the appellant guilty of felony murder, the jury had to
find that “the killing was committed in the perpetration of or the attempt to perpetrate the
alleged robbery.”
A defendant has a “constitutional right to a correct and complete charge of the law.”
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). “We must review the entire [jury] charge
and only invalidate it if, when read as a whole, it fails to fairly submit the legal issues or
misleads the jury as to the applicable law.” State v. Forbes, 918 S.W.2d 431, 447 (Tenn.
Crim. App. 1995). A charge resulting in prejudicial error is one that fails to fairly submit the
legal issues to the jury or misleads the jury about the applicable law. State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997).
-36-
The Sixth and Fourteenth Amendments to the United States Constitution and article
I, section 9 of the Tennessee Constitution afford an accused the right to be informed of the
nature and cause of the accusation against him or her. See State v. Hill, 954 S.W.2d 725, 727
(Tenn. 1997). Generally, an indictment is valid if the information contained therein provides
sufficient 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). With the decline of common law offenses and the advent of statutory offenses, strict
pleading requirements are no longer necessary. Id. at 727-28. “Hill and its progeny leave
little doubt that indictments which achieve the overriding purpose of notice to the accused
will be considered sufficient to satisfy both constitutional and statutory requirements.” State
v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000). Moreover, “specific reference to a statute
within the indictment may be sufficient to place the accused on notice of the charged
offense.” State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000).
We conclude that the indictment gave the appellant sufficient notice of the charged
offense, including felony murder committed during the perpetration of attempted robbery.
The indictment specifically referred to felony murder and the statute allegedly violated,
Tennessee Code Annotated section 39-13-202. Tennessee Code Annotated section 39-13-
202(a)(2) defines felony murder, in relevant part, as the “killing of another committed in the
perpetration of or attempt to perpetrate any . . . robbery[.] The indictment informed the
appellant as to nature of the charges against him so as to enable the entry of proper judgments
and to protect against double jeopardy. See State v. Lonnie M. Maclin, No.
W2004-00468-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1120, at *10 (Jackson, Oct. 17,
2005). Moreover, the trial court used Tennessee pattern instruction 7.03, the instruction for
felony murder. According to a footnote for the instruction, “[t]he trial judge may wish to
charge criminal attempt in appropriate fact situations.” Tennessee Pattern Jury Instruction
7.03 n.4--Criminal (11th ed. 2007). We hold that the trial court properly instructed the jury.
P. Sufficiency of the Evidence
Finally, the appellant contends that the evidence is insufficient to support the
conviction because the evidence shows he killed the victim in self-defense and did not kill
the victim during the perpetration of robbery. The State argues that the evidence is sufficient.
We agree with the State.
On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
-37-
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). Accordingly, on
appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence,
are resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d
559, 561 (Tenn. 1990).
As stated in the previous section, felony murder is defined, in relevant part, as the
“killing of another committed in the perpetration of or attempt to perpetrate any . . .
robbery[.] Tenn. Code Ann. § 39-13-202(a)(2). “Robbery is the intentional or knowing theft
of property from the person of another by violence or putting the person in fear. Tenn. Code
Ann. § 39-13-401(a).
Self-defense is a fact question for the jury. State v. Clifton, 880 S.W.2d 737, 743
(Tenn. Crim. App. 1994); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). At
the time of the crime, Tennessee Code Annotated section 39-11-611(a) (2005) provided that
the use of force may be justified when a person has a reasonable belief that there is an
imminent danger of death or serious bodily injury.
The evidence is more than sufficient to support the conviction. George Hammontree
testified that he heard someone say, “Give it up. Give it up.” He looked up and saw the
appellant pointing a rifle at the victim, who had his hands up. Hammontree “hit the floor”
and heard four shots. He said that he was familiar with guns, that the first three shots were
fired from a .22 caliber automatic, and that the final shot came from a larger caliber weapon.
The evidence established that the victim fired one shot from his .38 caliber revolver.
Rebecca Carpenter, who had just bought cocaine from the appellant and was standing next
to the victim’s car, heard a gunshot. When she looked up, she saw the appellant holding a
long gun. She never saw the victim with a weapon. Immediately after the shooting,
Carpenter grabbed her purse off the front seat and ran. She said the victim’s wallet was still
in his pocket at that time. However, the police never recovered the wallet. Hammontree and
Carpenter identified the appellant as the shooter from photograph arrays. James Blackwell
testified that the appellant told him the appellant pointed a .22 caliber rifle at the victim and
demanded the victim’s money. The appellant also told Blackwell that he shot the victim and
took the victim’s money, almost ten thousand dollars, out of the victim’s pocket. Although
the appellant told Blackwell that the victim shot at him first, the testimony of Hammontree
and Carpenter, eyewitnesses to the crime, established that the appellant shot the victim first.
The evidence was such that a reasonable jury could have concluded beyond a reasonable
doubt that the appellant demanded money from the victim, shot the victim three times, was
-38-
then shot at by the mortally-wounded victim, and took the victim’s wallet. Therefore, the
evidence is sufficient to show that the appellant did not shoot the victim in self-defense and
that the appellant is guilty of first degree murder committed during the perpetration of
robbery.
III. Conclusion
Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.
_________________________________
NORMA McGEE OGLE, JUDGE
-39-