State of Tennessee v. Dejavone Lee Woods ( 2021 )

08/03/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 13, 2021
STATE OF TENNESSEE v. DEJAVONE LEE WOODS
Appeal from the Circuit Court for Rutherford County
No. F-78596 Royce Taylor, Judge
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No. M2020-00114-CCA-R3-CD
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A jury convicted the Defendant, Dejavone Lee Woods, of attempted voluntary
manslaughter and employing a firearm in the attempted commission of a dangerous
offense, and he received an effective ten-year sentence. On appeal, the Defendant asserts
that the State failed to negate self-defense, that the trial court erred in admitting hearsay
evidence, that the trial court erred in admitting testimony about a surveillance video, that
the trial court erred in refusing to give an instruction on misdemeanor reckless
endangerment, and that he is entitled to cumulative error relief. After a review of the
record, we conclude that the Defendant is not entitled to appellate relief and affirm the
judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.
Russell N. Perkins (on appeal) and Whitney Raque and William Cain (at trial),
Murfreesboro, Tennessee, for the appellant, Dejavone Lee Woods.
Herbert H. Slatery III, Attorney General and Reporter; James Gaylord, Senior Assistant
Attorney General; Jennings H. Jones, District Attorney General; and John Zimmerman,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Defendant and the victim, Mr. Dusty Johnson, got into an argument over $15
at a bar, and the Defendant ultimately shot the victim in the face in the parking lot. The
Defendant was charged with attempted first degree murder and employing a firearm
during the attempt to commit a dangerous felony. The State had video, fingerprint, and
DNA evidence establishing that the Defendant was present in the bar, and it presented
testimony that the man from the bar identified as the Defendant shot the victim in the
parking lot. The Defendant testified that he acted in self-defense, stating that he
approached the victim in the parking lot in search of a jack to change his car’s tire, that
the victim produced a gun, that there was a struggle over the gun, and that the gun
discharged during the struggle.
The shooting occurred shortly before 1:00 a.m. on March 31, 2016, outside a bar
in Smyrna, Tennessee. The bartender, Ms. Sakille Gordon, had not seen either the victim
or the Defendant in the bar prior to the night of the shooting, and the two did not appear
to be acquainted. The Defendant, whom she described as a tall, thin, African American
man with “fat” dreadlocks, had a beer and some food and chatted with Ms. Gordon. She
was able to remember that he had a “long name” that began with a “D,” that he lived in
Murfreesboro but stayed with his girlfriend near the Smyrna bar, that he was from
Indiana, and that his girlfriend had asked him to put his belongings into his car and leave
as a result of some information she uncovered on his cell phone. The Defendant and
victim began to chat and at one point shared some food.
Shortly before the bar was to close, the Defendant and the victim began to argue
about $15. According to Ms. Gordon, the Defendant was “coming at [the victim] like he
owed him money” but was not confrontational with anyone else. She likewise did not
hear the victim make any derogatory comments toward anyone in the bar. Mr. Deshaun
Mobley, a customer at the bar, recalled a “back and forth” between the two and recalled
that Ms. Gordon asked them to leave.
Ms. Gordon stated that the argument was not loud or obnoxious but that she asked
the two to “take it outside” on three occasions and finally asked them to leave the bar
entirely. The Defendant left first. She described the following exchange: “But before he
left, he’s like, I’m going to ask you one more time. He’s like, give me the money you
owe me. And [the victim], he was saying, no, I don’t owe you anything. And he was
like, all right. God bless you.” Ms. Gordon testified that the victim was upset about the
argument and was “rambling” about being accused of taking money but that he did not
appear violent.
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Ms. Gordon and Mr. Mobley agreed that the victim appeared intoxicated. Mr.
Mobley stated that the victim’s speech was slurred and that he was stumbling. Mr.
Mobley and a few other men in the bar escorted the victim outside, and Mr. Mobley and
the bar owner doubted whether they should allow him to drive. Mr. Mobley recalled that
the victim and Defendant were both doing “a little loud mouth talking” outside of the bar
and that the victim resisted leaving. Ms. Gordon likewise testified that the victim was
“walking the sidewalk and talking” and that the bar manager went out to tell him to leave.
Mr. Mobley described the victim as “aggressive,” clarifying that he meant the victim was
aggressive in the language he used and not physically. Mr. Mobley saw the Defendant
pull off in a grey Cadillac CTS, and the car did not appear to have any mechanical issues
or a flat tire. However, while the victim was still sitting in his vehicle, the Defendant’s
Cadillac pulled back up to the building. The men outside asked him why he had returned.
The Defendant went to his trunk. Mr. Mobley testified: “And after that, it was really
choppy. After he got the gloves, I don’t know what he did after that point.” Mr. Mobley
recalled that he heard a shot and saw the flash of a muzzle. He testified that he and the
others ran inside and locked the door. He then saw the Defendant “pac[e]” back to his
car and leave.
Ms. Gordon, through the front of the building, which was all glass, likewise saw a
car pull up to the bar and saw a man who was the same stature as the man who had sat at
the bar run over to where the victim was parked. She heard a pop, and the man ran back
to his car and sped off.
The victim, who had been shot in the face, attempted to come back into the bar.
Mr. Mobley stated that a “knucklehead” had opened the door and that the bloody victim
walked in but was ushered back out to wait for emergency personnel. Ms. Gordon
described the victim as a “zombie” and stated that she had “never seen anything look so
horrible.” The owner of the bar told the victim to go back outside to wait for help.
A surveillance video from the bar was played during the testimony given by Ms.
Gordon and by Mr. Mobley. The video showed the Defendant and victim apparently
chatting amicably prior to the dispute, and at one point there appeared to be cash in the
victim’s hands. Ms. Gordon identified the point at which the parties were arguing and
the Defendant left. The victim was escorted out soon thereafter. The video corroborated
the testimony that the victim, who staggered at several points in time and nearly fell off
his stool, was intoxicated. Distinguishable on the video were the lights of a vehicle
pulling away from the front of the bar after the victim was escorted outside.
Approximately two minutes later, the five or six men who had gone outside with the
victim returned to the bar. The gunshot can be marked by the reaction of the bar patrons,
and the video showed Mr. Mobley locking the door. The video showed a figure pass in
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front of the bar, and then it showed the victim, with blood on his face, enter the bar
briefly. One of the men pulled on the victim’s arm to get him to exit the bar.
On cross-examination, Ms. Gordon agreed that she had previously given a
statement to the police in which she said, “I didn’t see any of the activity outside after
they left. I continued to clean the bar.” However, she explained that she meant that she
did not see the firing of the gun or the shooter’s face. She reiterated that she saw
someone matching the Defendant’s physique run to the victim’s car and back again after
the shot. After viewing the video, Mr. Mobley acknowledged that the video reflected he
was not, as he had testified, outside at the time of the shooting. However, he reiterated
that he saw the flash of the muzzle, noting he was standing in the doorway and that the
door and front of the building were made of glass.
Mr. Matthew Wiley, a paramedic, testified that he treated the victim in the parking
lot. The victim had lost a large amount of blood, and Mr. Wiley observed two gunshot
wounds in his head, which may have been an entrance and exit wound. The victim was
in pain, and the injury was life-threatening. The victim acknowledged having consumed
alcohol and could not identify his source of pain but stated that a “black male” had shot
him. The victim’s father testified about the victim’s medical condition, including that the
victim’s head was swollen to twice its normal size and that the bullet traveled close to the
victim’s brain.
Officers from the Smyrna police department investigated the shooting. Corporal
Joshua Johnson found a .380 caliber shell on the sidewalk, which was “quite a distance”
from where the victim’s car was found. Officer Michael Reed testified that the door to an
Asian grocery store had been broken and that it appeared that the victim lost control of
the vehicle after the shooting, drove into the grocery store door, and then drove back to
the area in front of the bar. Officer Reed testified that all the vehicles in the lot were
searched in an effort to locate the weapon, but no weapon was ever found. Corporal
Johnson recovered a bullet from the passenger’s seat of the victim’s vehicle. He also
removed latent prints from the area of the bar where the shooter had sat. Ms. Gordon had
saved the shooter’s beer bottle, and Corporal Johnson swabbed it for DNA. Corporal
Johnson acknowledged he did not attempt to retrieve fingerprints from the bullet casing,
testifying that heat and pressure would generally destroy any fingerprints.
Detective Stephen Hannah, II, confirmed that a search for the gun was conducted
but was fruitless. He issued a media release with a photograph from the bar surveillance
footage, and he developed the Defendant as a suspect. From a database, he obtained a
photograph of the Defendant with dreadlocks similar to those described by the witnesses
as having been worn by the shooter. A silver Cadillac CTS was registered to the
Defendant. Detective Hannah attempted to locate the Defendant at his home the day after
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the shooting, but neighbors had not seen him or his vehicle in a few days. Detective
Hannah identified the Defendant’s girlfriend, who lived approximately a mile from the
bar. Neither the Defendant nor his vehicle were at her house, and she did not give law
enforcement any information to assist them in finding him.
Detective Hannah reviewed the bar surveillance and attempted to locate other
surveillance footage. He testified that a gas station’s cameras did not cover the area of
the shooting but that a vapor shop nearby had footage similar to the footage from the bar.
He clarified that the bar’s camera was facing out of the front windows and was angled to
the left, that the vapor shop was to the left of the bar, and that the vapor shop’s camera
was facing out of the windows and angled to the right. Consequently, both videos
covered approximately the same area and neither recorded the actual shooting. Detective
Hannah testified that he spent several hours trying to download the vapor shop’s video
and that he downloaded an app on his phone to try to transfer it. He also sought help
from a colleague. He was unable to download the video, and when he returned “a
couple” of weeks later, the video had been overwritten by the store. He acknowledged
that the video would have been helpful to the jury. He testified that the video depicted
the driver of the Cadillac retrieving something from the trunk and driving away. Shortly
thereafter, the Cadillac’s driver walked towards the victim’s vehicle, which was off-
screen, and then walked away from the victim’s vehicle.
On June 18, 2016, the Defendant was detained by police in Milwaukee,
Wisconsin, because his physique and clothing matched the description of someone who
had committed a crime. Although law enforcement determined the Defendant was not
implicated in that crime, he was arrested for the shooting in the Smyrna parking lot after
giving his name to law enforcement. The Defendant’s hair had been closely cropped and
was no longer in dreadlocks.
The Defendant was brought to Tennessee, and his DNA was collected for analysis.
Special Agent Laura Boos, a forensic scientist at the Tennessee Bureau of Investigation
(“TBI”) testified that the DNA from the outer rim of the beer bottle collected from the bar
matched the Defendant’s DNA. DNA from the inner rim of the bottle was limited and
inconclusive with respect to the Defendant, although it excluded the victim as a
contributor. Special Agent Dabney Kirk, an expert in latent print identification with the
TBI, analyzed two palm prints which had been collected by Corporal Johnson from the
bar and identified both as the Defendant’s right palm.
In July 2016, the Defendant made a telephone call from jail using his social
security number and identifying himself as “D.J.” He told his girlfriend that the victim
was very intoxicated and would not credibly be able to testify that he remembered what
happened. He noted the hospital would have the victim’s blood alcohol content. He also
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stated that he would research “some other stuff” because “[t]here’s some loopholes” and
said that seeing the evidence at the preliminary hearing would “open up a lot of different
things.” Detective Hannah testified that he listened to over one hundred calls and that the
Defendant never said that the victim brandished a gun at him or that the Defendant’s car
had a flat tire. He acknowledged that the call played at trial was the most incriminating
call he heard and that the Defendant never admitted to having committed any criminal
offense in the jail calls.
The Defendant testified that he worked twelve-hour shifts as a forklift operator,
and that his protective equipment included gloves. On March 30, 2016, he finished work
at around 10:00 p.m., put air into his tire, which was low, and went to his girlfriend’s
home, where he frequently stayed. His girlfriend had seen something she did not like on
his cell phone earlier that day, and she had the Defendant pack his belongings into his car
and leave. The Defendant told her that he would leave Tennessee if they broke up. The
Defendant ended up in the Smyrna bar close to his girlfriend’s home, where he engaged
in casual conversation with bar patrons and with the victim after the victim arrived.
The Defendant testified that he asked the victim if the victim had any “green,” or
marijuana. In response, the victim lifted his shirt to show a gun. The surveillance video
corroborates that the victim and Defendant were speaking and that the victim then leaned
backwards on his stool while lifting his shirt to expose his abdomen. The Defendant
thought the victim might be an off-duty police officer at that time. The victim went to the
bathroom, and when he returned, he “started tripping” about $15 he had left at the bar.
The Defendant told the victim that he was comfortable financially and would not steal
$15. The Defendant testified that the victim was argumentative with others in the bar as
well and that the victim was intoxicated.
Prior to exiting, the Defendant got up and showed the victim his pockets. The
Defendant told the victim, “God bless you,” and left. The Defendant said that he saw that
his tire was flat and that he opened his trunk to get his tools and his work gloves to
change the tire. The victim exited and was “fussing” and “putting up a ruckus.” The
Defendant yelled to the victim that he was drunk and should go home. The Defendant
realized that the handle for his jack was missing and drove off as shown in the video.
However, he was worried about damaging his car and returned to try to borrow a jack.
He asked the men in front of the bar for one, but they did not respond and went inside.
The Defendant testified he did not believe his argument with the victim had been intense,
and so he went to the victim’s car to try to borrow a jack. The victim was looking at his
cell phone and may have been startled because the victim immediately “lifted the gun
up.” The Defendant was afraid that if he moved away, the victim would simply shoot
him, so he grabbed the gun. The victim continued to hold onto the gun, and they
“tussled” until it went off. The Defendant left the gun with the victim. He ran back to
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his car, trying to see if he was shot. He was not sure if either he or the victim had been
injured when he left the scene, and he drove to his girlfriend’s house.
The Defendant testified that in the morning, he borrowed a jack from the
neighbors and changed his tire. Although his girlfriend had allowed him to stay that
night, she did not want to remain his girlfriend and he decided to leave Tennessee for this
reason. He said he purchased a bus ticket to Wisconsin because the drive would have
been too long. The Defendant testified he was afraid no one would believe his story
because the victim had been injured and because the victim was white and he was
African American. He explained his changed appearance by saying he cut his hair for the
summer. He explained that he gave his real identity to Milwaukee police because he
wanted to see if the rumor that there was a warrant for his arrest was true.
On cross examination, the Defendant elaborated on his actions after the shooting
by explaining he went to work the day after the shooting but left work early to pack. He
stayed at his own house, where a friend had also been living, and he borrowed a
telephone to make arrangements. He said that he got a ride to the bus station and left his
car key in his apartment for a friend to retrieve. When pressed, he stated he did not know
what happened to his car and that he thought it might have been repossessed.
The Defendant orally moved for acquittal at the close of the State’s proof,
asserting as one ground the fact that the testimony regarding the video from the vapor
shop should have been excluded under State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999).
The trial court denied the motion but noted it would “give a duty to preserve evidence
charge to the jury.” The State opposed the instruction on the grounds that the evidence
had not been in the State’s possession. The trial court revisited the issue the following
day and ultimately concluded the charge would not be supported under caselaw.
The Defendant made an oral request for an instruction on the lesser included
offense of misdemeanor reckless endangerment. The trial court refused, ruling that the
facts of the case did not support the instruction. The jury was charged in count one with
attempted first degree murder and the lesser included offenses of attempted second
degree murder and attempted voluntary manslaughter. During deliberations, the jury sent
a question to the trial court asking if they could “have the option of involuntary
manslaughter and a definition.” The trial court instructed the jury that they were
restricted to the charges given in writing and referred them to the instruction on
deliberation and order of consideration. The jury convicted the Defendant of the lesser
included offense of attempted voluntary manslaughter in count 1 and of employment of a
firearm in the attempt to commit a dangerous felony in count 2.
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At the sentencing hearing, the victim testified that he and the Defendant argued
about $15 that the victim had left under a coaster. In the parking lot, the Defendant came
up and attempted to rob him, saying “die, motherf***er” when the victim would not give
him money. The victim testified regarding his injuries and the effect the shooting had on
him. He did not testify at trial because the prosecutor did not want the jury to hear
evidence regarding his prior convictions for burglary, theft, and perjury. He denied being
armed, noting he was a convicted felon. He acknowledged inconsistencies in his
testimony and acknowledged that, at the time of the hearing, he was charged with
offenses in which the victim was one of his sons. The Defendant’s mother testified that
the Defendant had always been kind and forgiving and that his family would support him.
The trial court sentenced the Defendant as a Range I offender to four years for attempted
voluntary manslaughter and to six years for employing a firearm during the attempt to
commit a dangerous felony, to be served consecutively. The Defendant moved for a new
trial on several grounds, including the sufficiency of the evidence; the admission of Mr.
Wiley’s testimony that the victim said he was shot by a “black male”; errors related to the
vapor shop video including admission of Detective Hannah’s testimony, refusal to give a
Ferguson instruction, and “potential violations of the constitutional right to cross-
examination”; the trial court’s denial of the instruction on misdemeanor reckless
endangerment; and cumulative error. The trial court denied the motion for a new trial.
ANALYSIS
I. Sufficiency of the Evidence
The Defendant asserts that the State failed to negate self-defense beyond a
reasonable doubt. This court must set aside a finding of guilt if the evidence is
insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.
Tenn. R. App. P. 13(e). The question before the appellate court is whether, after
reviewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. State v.
Pope, 427 S.W.3d 363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the
evidence, and it may not substitute its inferences drawn from circumstantial evidence for
those drawn by the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The
jury’s guilty verdict, approved by the trial judge, accredits the State’s witnesses and
resolves all conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277
(Tenn. 2002). The trier of fact is entrusted with determinations concerning witness
credibility, factual findings, and the weight and value of evidence. Smith, 436 S.W.3d at
764. In reviewing the sufficiency of the evidence, we afford the State the strongest
legitimate view of the evidence and all reasonable inferences that can be drawn from the
evidence. State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt
removes the presumption of innocence and replaces it with a presumption of guilt, and on
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appeal the defendant has the burden of illustrating why the evidence is insufficient to
support the verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial
evidence alone is sufficient to support a conviction, and the circumstantial evidence need
not exclude every reasonable hypothesis except that of guilt.” State v. Wagner, 382
S.W.3d 289, 297 (Tenn. 2012).
As charged, criminal attempt required the State to show that the Defendant, acting
with the culpability required for the offense, acted with intent to cause a result that is an
element of the offense and believed the conduct would cause the result without further
conduct on his part. T.C.A. § 39-12-101(a)(2). Voluntary manslaughter is defined as
“the intentional or knowing killing of another in a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner.” T.C.A.
§ 39-13-211(a). The phrase “irrational manner” encompasses “a broad consideration of
mental states produced by adequate provocation.” T.C.A. § 39-13-211, Sentencing
Comm’n Cmt. The question of whether the provocation was adequate falls to the
province of the jury. State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995);
see State v. Khaliq Ra-El, No. W2013-01130-CCA-R3-CD, 2014 WL 3511038, at *5
(Tenn. Crim. App. July 11, 2014) (upholding an attempted voluntary manslaughter
conviction when the defendant shot the victim after accusing her of theft).
To convict the Defendant of employing a firearm during the attempt to commit a
dangerous felony, the State had to show that the Defendant intentionally, knowingly, or
recklessly employed a firearm during the attempt to commit a dangerous felony. T.C.A.
§ 39-17-1324(b)(2). Voluntary manslaughter is a dangerous felony. T.C.A. § 39-17-
1324(i)(1)(C).
The Defendant does not contest that the elements of attempted voluntary
manslaughter or employing a firearm during the attempt to commit a dangerous felony
were met, but he argues that the evidence was insufficient to refute self-defense.
According to the Defendant, because his testimony that the victim was brandishing a
weapon at him was not refuted by witnesses, the State failed to negate self-defense as a
matter of law.
That the accused was acting in self-defense is a complete defense to an offense.
State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). Under Tennessee Code
Annotated section 39-11-611:
(b)(1) Notwithstanding § 39-17-1322, a person who is not engaged
in unlawful activity and is in a place where the person has a right to be has
no duty to retreat before threatening or using force against another person
when and to the degree the person reasonably believes the force is
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immediately necessary to protect against the other’s use or attempted use of
unlawful force.
(2) Notwithstanding § 39-17-1322, a person who is not engaged in
unlawful activity and is in a place where the person has a right to be has no
duty to retreat before threatening or using force intended or likely to cause
death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent
danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious
bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
T.C.A. § 39-11-611 (Supp. 2012).
The burden of negating self-defense lies with the State. T.C.A. § 39-11-201(a)(3).
The defendant’s conduct and mental state must meet an objective standard of
reasonableness in order for the homicide to be justified. State v. Bult, 989 S.W.2d 730,
732 (Tenn. Crim. App. 1998). Self-defense “is not limited to the exact moment of the
assault that may be considered in connection with the entirety of the events leading to the
assault.” Ivy, 868 S.W.2d at 727. Whether a defendant was acting in self-defense is a
question of fact for the jury. State v. Echols, 382 S.W.3d 266, 283 (Tenn. 2012); State v.
Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994). The Defendant is entitled to
relief if he can show that the evidence of self-defense in the record “raises, as a matter of
law, a reasonable doubt as to his conduct being criminal.” Clifton, 880 S.W.2d at 743.
Evaluating the sufficiency of the evidence in the light most favorable to the
prosecution, the proof established that the Defendant and the victim argued over $15.
The Defendant testified that the victim accused him of stealing $15, while Ms. Gordon
testified that the Defendant accused the victim of the theft. The employees and patrons of
the bar asked the two to leave, and they did so separately. Although the Defendant
testified that the victim was armed in the bar, that the weapon reappeared when the victim
brandished it in the parking lot, and that he struggled over the gun out of fear of imminent
bodily injury, the jury was not required to credit this testimony. There was also evidence
from which the jury could have inferred that the victim was not armed and was not the
aggressor and that the Defendant accordingly did not reasonably fear imminent death or
serious bodily injury. The proof showed that the victim was in his car preparing to leave
and that the Defendant had driven away from the bar when the Defendant returned and
retrieved something from his trunk. The Defendant’s act of returning to the bar,
retrieving an object from his trunk, and approaching the victim after the confrontation
had ended supports an inference that the victim was not the aggressor. The Defendant’s
explanation for his actions, that he wanted to borrow a jack for his flat tire, is refuted by
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witness testimony that there was nothing wrong with the Defendant’s car. The jury could
have rejected the Defendant’s explanation that, to seek help for car trouble, he
approached the very person with whom he had been arguing, despite the presence of
numerous other people nearby. The jury could also have discredited the Defendant’s
testimony that the gun was the victim’s and that he left the gun in the victim’s possession
because the proof established that no gun was ever found despite a search of all the
vehicles in the parking lot. After the shooting, the Defendant ran to his car and did not
contact authorities. He immediately fled town, abandoning his home, his girlfriend, his
vehicle, and his dreadlocks. There was evidence from which the jury could have chosen
to discredit the Defendant’s testimony that the victim was armed and that the Defendant’s
acts were justified as self-defense. Accordingly, we conclude that there was sufficient
evidence to negate the Defendant’s theory of self-defense.
II. Hearsay Testimony
The Defendant asserts that the trial court erred in admitting Mr. Wiley’s testimony
that the victim told him he was shot by a “black male” because the testimony constituted
hearsay. The State asserts that the statement was properly admitted or that its admission
was harmless. We conclude that the admission of the statement was harmless error.
Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn.
R. Evid. 801(c). Hearsay is generally not admissible. Tenn. R. Evid. 802. A trial court’s
findings of fact or credibility determinations underlying a decision to admit or exclude
hearsay are binding on an appellate court unless the evidence preponderates against them.
Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The appellate court reviews de
novo the determination of whether the statement is hearsay or whether it is subject to an
exception to the rule against hearsay. Id. We review for abuse of discretion the
determination to exclude otherwise admissible hearsay based on relevance or on a
balancing of probative value and prejudice under Tennessee Rule of Evidence 403. Id.The State relies on an exception to the hearsay rule which makes admissible
“[s]tatements made for purposes of medical diagnosis and treatment describing medical
history; past or present symptoms, pain, or sensations; or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis and treatment.” Tenn. R. Evid. 803(4). The rationale behind making such
statements admissible is that such statements are “‘presumptively trustworthy because a
patient is strongly motivated to speak the truth in order to receive proper diagnosis and
treatment’” and because a statement deemed sufficiently reliable to form the basis of
diagnosis and treatment “‘is also sufficiently reliable for consideration by a court of
law.’” State v. Spratt, 31 S.W.3d 587, 600 (Tenn. Crim. App. 2000) (quoting State v.
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Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997)). Such statements must be “reasonably
pertinent to diagnosis and treatment” to be admissible. Stinnett, 958 S.W.2d at 331.
Although a child’s statement identifying a perpetrator of a crime as a member of the
household may be pertinent to diagnosis and treatment, State v. Howard, 504 S.W.3d
260, 280 (Tenn. 2016), the name or identity of a perpetrator is generally not considered
reasonably pertinent to diagnosis and treatment, State v. Livingston, 907 S.W.2d 392, 396
(Tenn. 1995). Accordingly, while the statement about the nature of the injury being a
gunshot wound was admissible, the description of the shooter did not fall under the
hearsay exception.
However, in this case, there was no dispute that the gunshot wound was the result
of the Defendant, who is African Amercian, grabbing the gun. The Defendant’s own
testimony was that the victim was shot when the victim “lift[ed] up the gun and I grabbed
it.” The identity or physical description of the Defendant was not at issue; instead, the
parties disputed whether the shooting was intentional or occurred accidentally in the
course of a struggle over the gun. Accordingly, the admission of the victim’s hearsay
statement that the shooter was a “black male” was harmless because the Defendant did
not contest his involvement with the shooting. See Tenn. R. App. P. 36(b) (“A final
judgment from which relief is available and otherwise appropriate shall not be set aside
unless, considering the whole record, error involving a substantial right more probably
than not affected the judgment or would result in prejudice to the judicial process.”).
Insofar as the Defendant asserts that the inclusion of the statement into evidence
violated his right to confrontation because the victim never testified, see U.S. Const.
amend. VI; Tenn. Const. art. I, § 9, we agree with the State that this issue has been
waived because the Defendant did not challenge the testimony on this basis at trial. See
Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”).
III. Surveillance Video
The Defendant asserts the trial court erred in admitting Detective Hannah’s
testimony regarding the vapor shop surveillance video without providing a jury
instruction pursuant to State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), or that it erred in
not dismissing the charges. The State responds that the issue is waived and that there was
no Ferguson violation because the video was never in the possession of the State. We
conclude that the State had no duty to preserve the evidence because the evidence was
never in its possession.
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The Defendant moved for judgment of acquittal and for dismissal based in part on
the issue that the vapor shop video had not been preserved. The trial court denied the
motions but indicated its willingness to give a jury instruction on preservation of
evidence. The State, however, objected that the instruction was inapplicable because the
State was never in possession of the evidence. After conducting research, the trial court
concluded the next day that the State had no duty to preserve the video because it was not
in the State’s possession. Although the State’s brief now relies on the fact that the
defense did not raise the issue again at the charge conference, the trial court had already
ruled on the jury instruction issue. In any event, the Defendant’s argument on appeal
encompasses not only the request for jury instructions but also the claim that the trial
court should have dismissed the charges based on the Ferguson issue. This issue was
preserved at trial and in the motion for a new trial.
A trial court’s decision to dismiss an indictment based on a determination that the
State’s destruction of evidence has violated the defendant’s due process rights is
reviewed de novo. State v. Merriman, 410 S.W.3d 779, 790 (Tenn. 2013). The trial
court’s findings of fact in determining the violation are conclusive on appeal unless the
evidence preponderates otherwise. Id. at 791. If this court concludes upon its de novo
review that there was a due process violation, then we review the trial court’s choice of
remedy under an abuse of discretion standard. Id.The Due Process Clause of the Fourteenth Amendment to the United States
Constitution and article I, section 8 of the Tennessee Constitution guarantee the right to a
fair trial. Part of the right to a fair trial is the “constitutionally protected privilege to
request and obtain from the prosecution evidence that is either material to guilt or
relevant to punishment.” State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999) (citing
Brady v. Maryland, 373 U.S. 83, 87 (1963)). When the State’s actions result in the loss
or destruction of potentially exculpatory evidence, the court must determine whether a
trial conducted without that evidence would be fundamentally fair. Id. at 914. As a
preliminary step in evaluating the fundamental fairness of a trial held without the lost or
destroyed evidence, the court must determine whether the State had a duty to preserve the
evidence. Id. at 917. Generally, the duty to preserve extends to constitutionally material
evidence subject to discovery under Tennessee Rule of Criminal Procedure 16 or other
law. Id. If the court finds that the destroyed evidence was constitutionally material or
potentially exculpatory, then it must determine the degree of negligence in the
destruction, the significance of the destroyed evidence in light of its probative value and
the reliability of secondary or substitute evidence which remains available, and the
sufficiency of the other evidence. Merriman, 410 S.W.3d at 785.
However, the prosecution is not required to disclose to the defense “‘information
which is not possessed by or under the control of the prosecution or another
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governmental agency.’” State v. Yevette Somerville, No. W2001-00902-CCA-R3-CD,
2002 WL 1482730, at *5 (Tenn. Crim. App. Feb. 11, 2002) (citing State v. Marshall, 845
S.W.2d 228, 233 (Tenn. Crim. App. 1992)). In State v. Ladarron S. Gaines, this court
held that the trial court properly admitted testimony regarding destroyed video
surveillance which was in the possession of a private citizen because “the video was
privately owned and never in the State’s possession or control.” No. M2013-02272-
CCA-R3-CD, 2014 WL 4179123, at *8 (Tenn. Crim. App. Aug. 22, 2014) (noting also
that failure to collect the video before it was overwritten was simple negligence, that
there was other evidence pertinent to identity, and that the other evidence of guilt was
strong); see also State v. Mario Hubbard, No. W2016-01521-CCA-R3-CD, 2017 WL
2472372, at *7 (Tenn. Crim. App. June 7, 2017) (the State had no duty to preserve a
surveillance video in the possession of car dealership when officers simply failed to
collect it); Yevette Somerville, 2002 WL 1482730, at *5 (the State had no duty to preserve
or disclose a video surveillance tape which was in the possession of a retailer and was
destroyed prior to law enforcement’s collecting it). Moreover, the State is not under a
duty to investigate in any particular way, and evidence that has not been collected, “for
purposes of the Ferguson analysis[,] … do[es] not exist.” State v. Brock, 327 S.W.3d
645, 699 (Tenn. Crim. App. 2009) (noting that the State had no duty to collect fingerprint
evidence or a bloody footprint). Pursuant to the cases cited above, there was no due
process violation under Ferguson, and the trial court did not err in refusing to dismiss the
charges.
IV. Reckless Endangerment Instruction
The Defendant next asserts that he was entitled to an instruction on misdemeanor
reckless endangerment. The State responds that the Defendant has waived the issue by
failing to request the instruction in writing. We conclude that the issue is waived.
Under Tennessee Code Annotated section 40-18-110,
(a) When requested by a party in writing prior to the trial judge’s
instructions to the jury in a criminal case, the trial judge shall instruct the
jury as to the law of each offense specifically identified in the request that
is a lesser included offense of the offense charged in the indictment or
presentment. However, the trial judge shall not instruct the jury as to any
lesser included offense unless the judge determines that the record contains
any evidence which reasonable minds could accept as to the lesser included
offense. In making this determination, the trial judge shall view the
evidence liberally in the light most favorable to the existence of the lesser
included offense without making any judgment on the credibility of
evidence. The trial judge shall also determine whether the evidence,
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viewed in this light, is legally sufficient to support a conviction for the
lesser included offense.
(b) In the absence of a written request from a party specifically
identifying the particular lesser included offense or offenses on which a
jury instruction is sought, the trial judge may charge the jury on any lesser
included offense or offenses, but no party shall be entitled to any lesser
included offense charge.
(c) Notwithstanding any other provision of law to the contrary, when
the defendant fails to request the instruction of a lesser included offense as
required by this section, the lesser included offense instruction is waived.
Absent a written request, the failure of a trial judge to instruct the jury on
any lesser included offense may not be presented as a ground for relief
either in a motion for a new trial or on appeal.
T.C.A. § 40-18-110.
The record does not reveal any written request for the instruction as required by
statute. Accordingly, under the plain terms of the statute, the Defendant was not entitled
to a charge on the lesser included offense. T.C.A. § 40-18-110(b). Pursuant to the
statute, the failure to request the instruction in writing also cannot be presented as a
ground for relief on appeal. T.C.A. § 40-18-110(c). The Tennessee Supreme Court
affirmed that “if a defendant fails to request an instruction on a lesser-included offense in
writing at trial, the issue will be waived for purposes of plenary appellate review and
cannot be cited as error in a motion for a new trial or on appeal.” State v. Page, 184
S.W.3d 223, 229 (Tenn. 2006). A failure to instruct on lesser included offenses is
nonstructural constitutional error and “is subject to waiver for purposes of plenary
appellate review when the issue is not timely raised and properly preserved.” Id. at 230.
The Defendant cites to State v. Rush for the proposition that misdemeanor reckless
endangerment is a lesser included offense of attempted second degree murder. State v.
Rush, 50 S.W.3d 424, 432 (Tenn. 2001), as amended (July 25, 2001). He also cites to
Rush for the proposition that the trial court was required to instruct on the lesser included
offense even without a request and that the failure to do so was reversible error. Id. at
431-32. However, we note that Rush relied on a previous version of Tennessee Code
Annotated section 40-18-110(a) which provided that the trial court had “a duty to charge
the jury as to each offense ‘without any request on the part of the defendant to do so.’”
Id. at 427-28 (citing T.C.A. § 40-18-110 (1999)). This is no longer the law. See T.C.A. §
40-18-110 (2001). Additionally, the reversal in Rush was prompted by the determination
that the offense of which the defendant stood convicted did not constitute a lesser
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included offense of the charged crime and by the necessity to determine whether, given
the acquittal on the greater offense, there were any remaining crime with which the
defendant could be charged. Rush, 50 S.W.3d at 432.
We conclude that under the plain terms of Tennessee Code Annotated section 40-
18-110, the issue is waived. See Page, 184 S.W.3d at 229. The Defendant does not
request plain error review, and we accordingly decline to undertake it.
V. Cumulative Error Relief
The Defendant requests cumulative error relief. The doctrine of cumulative error
recognizes that “there may be multiple errors committed in trial proceedings, each of
which in isolation constitutes mere harmless error, but which when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in order to preserve a
defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). The
doctrine of cumulative error only applies when there has been more than one error
committed during trial. State v. Herron, 461 S.W.3d 890, 910 (Tenn. 2015). We
conclude that the Defendant is not entitled to cumulative error relief.
CONCLUSION
Based on the foregoing, we affirm the judgments of the trial court.
____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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