State of Tennessee v. Stephen Maurice Mobley ( 2021 )

08/16/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 31, 2021 Session
STATE OF TENNESSEE v. STEPHEN MAURICE MOBLEY
Appeal from the Criminal Court for Hamilton County
No. 301720 Barry A. Steelman, Judge
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No. E2020-00234-CCA-R3-CD
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Following a jury trial, the Defendant, Stephen Maurice Mobley, was convicted of two
counts of first degree premeditated murder and one count each of attempted first degree
murder, aggravated assault, and employing a firearm during the commission of a
dangerous felony. The trial court merged the attempted first degree murder and
aggravated assault convictions and imposed an effective sentence of life imprisonment
plus twenty-six years. On appeal, the Defendant contends that (1) the evidence is
insufficient to support the convictions; (2) the trial court improperly denied the
Defendant’s challenge to the State’s striking a prospective juror as violating Batson v.
Kentucky, 476 U.S. 79 (1986); (3) a juror failed to disclose her prior knowledge of the
Defendant during voir dire and provided extraneous information to other jurors in
violation of the Defendant’s right to a fair trial; (4) the trial court erred in admitting
hearsay statements under the excited utterance hearsay exception; and (5) the trial court
improperly admitted evidence that the Defendant had been placed on a most wanted list
by law enforcement prior to his arrest. We remand the case to the trial court for a hearing
as to whether the State struck a potential juror in violation of Batson. We conclude that
none of the other issues raised by the Defendant warrant relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed;
Remanded
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
M. Todd Ridley, Assistant Public Defender – Appellate Division (on appeal); and Steven
E. Smith, District Public Defender; Mike Little, Executive Assistant District Public
Defender; and Steven Brown and Eliza E. Williams, Assistant District Public Defenders
(at trial), for the appellant, Stephen Maurice Mobley.
Herbert H. Slatery III, Attorney General and Reporter; Cody N. Brandon, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; Cameron Williams,
Executive Assistant District Attorney General; and Kevin Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
The evidence presented at trial established that the Defendant shot the victims, Ms.
Jasmine Hines, Mr. Rashaud Taylor, and Ms. Zirrshaddia Scott, multiple times during a
party at a home in Chattanooga, Tennessee, during the early morning hours of September
5, 2016. Ms. Hines and Mr. Taylor died as a result of their injuries, and Ms. Scott was
seriously injured. The Defendant fled the scene and turned himself in to the police a few
days later.
The State’s Proof
Ms. Scott testified that she was close friends with Ms. Hines, Mr. Taylor, and Mr.
David Reed and that they often gathered at Mr. David Reed’s home. On Saturday,
September 3, 2016, Ms. Scott went with Ms. Hines to Mr. David Reed’s home, where
they also saw Mr. Taylor and the Defendant. Ms. Scott, Ms. Hines, and Mr. Taylor spent
the night at the home, sleeping on the couch in the living room, and then left the next
morning. They returned to Mr. David Reed’s home on Sunday evening, when Mr. David
Reed was having a party and a cookout in celebration of the Labor Day weekend.
Approximately twenty people were in attendance, including the Defendant, and Ms. Scott
was only acquainted with about one half of the partygoers. Ms. Scott recorded a
Facebook Live video of the party and identified Ms. Hines, Mr. Taylor, and Mr. David
Reed in the recording. At the time, the Defendant and several others were outside of the
home.
Ms. Scott testified that Mr. Taylor brought a bag of Xanax pills to the party and
that she, Mr. Taylor, and Ms. Hines took Xanax throughout the night. They also drank
alcohol and smoked marijuana. Ms. Scott recalled that at one point, she and Ms. Hines
were “breaking down” a bar of Xanax that Mr. Taylor had given them when the
Defendant approached them and asked for “a hit.” Ms. Scott stated that she “shoved [the
Defendant] off” because she did not want to share her drugs with someone whom she did
not know. Ms. Hines had a similar reaction. Ms. Scott said the Defendant just walked
away.
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Once the party began dying down, the group decided to go to Chattanooga
Billiards Club (“CBC”). Ms. Hines drove Ms. Scott, Mr. Taylor, and Mr. David Reed in
her white Saturn, while the Defendant and others followed in another vehicle. Ms. Scott
reviewed video surveillance from the CBC and agreed that the video showed her, Mr.
Taylor, Ms. Hines, and Mr. David Reed arriving at 11:43 p.m. The video showed the
Defendant, wearing a black shirt and khaki pants, and two other men arriving at 12:02
a.m. Ms. Scott testified that while at CBC, she, Ms. Hines, and Mr. Taylor ordered at
least two pitchers of beer and that while they had consumed some alcohol at Mr. David
Reed’s house, they drank heavily at CBC. They played darts and pool, and Mr. David
Reed paid for everything and purchased marijuana for them.
Ms. Scott recalled that the Defendant approached her and Ms. Hines while they
were playing pool and asked if he could play with them. Both Ms. Scott and Ms. Hines
refused, stating that they were playing. Ms. Scott stated that the Defendant “kind of
shrugged off with a little bit more attitude now.”
Ms. Scott testified to seeing the Defendant with a handgun throughout the night.
She described the gun as a “baby nine” or a nine-millimeter handgun with “a little
attachment under the barrel.” She said the Defendant initially had the gun in his pocket.
He pulled out the gun before they went to CBC and after Mr. David Reed turned off the
lights in the living room while the Defendant was sitting alone on the floor. While
clutching the gun, the Defendant asked what was occurring and went to a window. When
Mr. David Reed turned on the lights, the Defendant returned to sitting on the floor with
the handgun beside him.
Ms. Scott testified that she became more intoxicated and that while she did not
recall leaving CBC, she recalled the ride back to Mr. David Reed’s house. Ms. Hines
drove Ms. Scott, Mr. David Reed, and Mr. Taylor to Mr. David Reed’s house. The
Defendant arrived sometime later.
Ms. Scott testified that upon returning to Mr. David Reed’s house, she drank a hot
beer and went to the bathroom where she vomited in the sink, making a mess. She
looked in the bathroom mirror and saw the Defendant behind her. Ms. Scott went into a
room where everyone else had gathered. She said that the Defendant was angry and
followed her while yelling that everyone needed to leave and that someone needed to
clean up the bathroom. Rather than leaving, Ms. Scott acknowledged that she and Ms.
Hines began arguing aggressively with the Defendant, but Ms. Scott could not recall what
was said. She stated that everyone, including Mr. David Scott and Mr. Taylor, “had a
say-so.” She also stated, “I kind of really don’t remember it. I remember us arguing and
stuff, but I don’t really remember the whole extent of it.”
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Ms. Scott testified that she needed to rest and that because the house was dirty, she
decided to rest in a chair. She did not recall what next occurred, stating that “this is
where my memory kind of fades.” She agreed that she likely was starting to pass out.
She recalled that when she awoke, she heard “a boom,” saw blood on herself, and
realized that she had been shot. She saw Ms. Hines and Mr. Taylor lying on the floor and
covered in blood. She called their names, but they did not respond. Ms. Scott used her
cell phone, which was lying on the floor near her, to call 911. She did not know how
much time had elapsed between the argument with the Defendant and the shooting, and
she did not know who had shot her. Ms. Scott sustained two gunshot wounds, one to her
right arm and the other that entered the top of her thigh and exited on the lower portion of
her knee. She remained hospitalized for three days and was using a walker when she
testified during the preliminary hearing.
On cross-examination, Ms. Scott agreed that during her Facebook Live recording,
Mr. David Reed announced over the video the street on which the party was occurring
and that there were 111 views of the video registered. When questioned regarding her
testimony at the preliminary hearing that she did not remember anything that occurred
once she returned to Mr. David Reed’s house after leaving CBC, Ms. Scott testified that
she remembered “bit and pieces” of what occurred after they returned to the home,
including her vomiting and the argument that followed. She recalled telling an officer
that no arguments occurred immediately prior to the shooting but stated on redirect
examination that she told the officer about the incidents that occurred after returning to
Mr. David Reed’s house, including the argument with the Defendant. She stated that
while she was sitting in a chair for most of the night, she did not know where she was
when she was shot and that she was lying on the floor inside the same room with Ms.
Hines and Mr. Taylor when she reached for her cell phone to call 911. Ms. Scott had to
undergo surgery on her leg due to the gunshot wound.
Mr. Jeremy Cotton, who lived five or six houses down from Mr. David Reed, also
attended the cookout and party in September 2016. He testified that prior to midnight, he
drove the Defendant and a few other people to CBC where they met the victims and Mr.
David Reed. Mr. Cotton recalled that at some point while at CBC, Mr. Taylor pointed to
the watch that the Defendant was wearing and asked, “Is that my watch?” The Defendant
removed the watch from his wrist and gave it to Mr. Taylor. After leaving CBC, they
returned to Mr. David Reed’s house where people relaxed, talked, and played chess. Mr.
Cotton stated that the Defendant displayed “[m]ixed emotions,” and Mr. Cotton believed
that at one point, the Defendant was upset.
Mr. Cotton recalled Ms. Scott vomiting in the bathroom and testified that while
the Defendant was in another room, Mr. Cotton went into the bathroom and saw Ms.
Scott lying on the floor. The Defendant announced that Ms. Scott had vomited and that
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he was not going to clean it. Mr. Cotton did not recall the Defendant stating that
everyone needed to leave. Mr. Cotton denied that the Defendant and Ms. Hines argued.
Mr. Cotton acknowledged telling Detective Christopher Blackwell that Ms. Hines and
Ms. Scott were “cussing [the Defendant’s] a** out,” but Mr. Cotton maintained, “It was
hearsay what I heard.”
Mr. Cotton testified that when he left the party to drive one of his friends home,
Mr. David Reed, Ms. Hines, Ms. Scott, and Mr. Taylor were still there. Mr. Cotton said
he was unaware of the Defendant’s being at Mr. David Reed’s home. Mr. Cotton
acknowledged telling Detective Blackwell that the Defendant was still at Mr. David
Reed’s home when Mr. Cotton left but testified, “It wasn’t definite, because when I said
he left, before I left, he left.” Mr. Cotton also testified that he did not know whether the
Defendant left because Mr. Cotton was playing chess and was not paying attention.
Mr. Cotton testified that he returned to his home at approximately 4:30 a.m. Mr.
David Reed later came to Mr. Cotton’s home crying, “in a panic,” and stating, “He did it,
he did it.” Mr. Cotton asked, “Did what?” Mr. David Reed replied, “He killed them, he
killed them.” Mr. Cotton stated that Mr. David Reed never clarified who “he” was. Mr.
Cotton testified that while speaking to Mr. David Reed, Mr. Cotton saw another person in
the street on the opposite side of Mr. David Reed’s house. Mr. Cotton acknowledged that
he told Detective Blackburn that the person in the street was the Defendant and that as a
result, he knew that Mr. David Reed was running from the Defendant. However, Mr.
Cotton testified at trial that he did not see the Defendant “personally,” that he only saw a
“figure,” and that the “figure” “possibly” could have been the Defendant. Mr. Cotton
also acknowledged telling Detective Blackburn that the Defendant was angry because the
female victims would not have sex with him, but Mr. Cotton maintained at trial that he
only assumed that this was the reason that the Defendant was upset.
On cross-examination, Mr. Cotton testified that when he left Mr. David Reed’s
home, he did not see the Defendant and that to Mr. Cotton’s knowledge, only Mr. David
Reed and the three victims were present. Mr. Cotton acknowledged that he previously
had told defense counsel that he did not recall seeing the Defendant in the street on the
morning of the shooting and that Mr. Cotton expressed surprise upon learning that he
made such a statement to Detective Blackburn. Mr. Cotton acknowledged receiving
death threats from members of the victims’ families.
Mr. David Reed was a friend of the victims and a cousin of the Defendant, who
had been living with Mr. David Reed for one to two months prior to the shooting. On
September 4 into the early hours of September 5, 2016, Mr. David Reed had a party at his
home in celebration of Labor Day weekend, and the victims and the Defendant attended
the party. At some point, everyone went to CBC and then returned to Mr. David Reed’s
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home. Mr. David Reed fell asleep on the couch in the living room, and Ms. Scott
vomited in the bathroom. Mr. David Reed recalled that the Defendant became upset and
began arguing with Ms. Hines and Ms. Scott. The Defendant told them to leave, but they
refused. Mr. David Reed told the victims, “Let’s just go,” but the victims did not listen to
him. Mr. David Reed retrieved his cell phone and his wallet, left his home, and began
walking toward Mr. Cotton’s house. Mr. David Reed stated that when he left, the victims
and the Defendant were the only people whom he saw inside his home.
Mr. David Reed testified that as he was walking toward Mr. Cotton’s house, he
heard approximately four gunshots and that he believed people were shooting their guns
in celebration of Labor Day. He acknowledged that upon arriving at Mr. Cotton’s house,
he was crying and told Mr. Cotton that he believed something had happened to the
victims because he had heard gunshots. Mr. David Reed denied telling Mr. Cotton, “He
did it, he did it, he killed them,” or telling him that the Defendant had killed the victims.
Mr. David Reed said he saw the Defendant with a semiautomatic gun earlier in the
evening, but Mr. David Reed did not know the caliber of the gun.
Mr. David Reed testified that while he was at Mr. Cotton’s home, his father, Mr.
Dan Reed, called him. After Mr. David Reed told Mr. Dan Reed what had occurred, Mr.
Dan Reed came by Mr. Cotton’s home and drove Mr. David Reed back to the scene. Mr.
David Reed stated that he was arrested and transported to the police station, where
Detective Blackwell interviewed him. Mr. Dan Reed was present for a portion of the
interview.
Mr. David Reed stated that before he spoke to the detective, the Defendant called
him. Mr. Dan Reed grabbed Mr. David Reed’s cell phone and spoke to the Defendant,
but Mr. David Reed did not hear the conversation. Mr. David Reed acknowledged telling
Mr. Dan Reed that he was afraid of the Defendant, but Mr. David Reed did not recall
telling him that the Defendant warned against providing any information to the police.
On cross-examination, Mr. David Reed testified that several people attended the
party, including people whom he did not know. He agreed that he announced the
location of the party on Facebook Live. He stated that sometime on Sunday prior to the
shooting, a relative of a former roommate drove by his house in a black Charger and
slowed down. Mr. David Reed acknowledged being afraid of those inside the Charger.
Mr. David Reed agreed that on the night of the party, he attempted to have sex
with Ms. Hines but that Ms. Hines pushed him away. He denied ever possessing a gun.
He identified photographs of himself holding guns but maintained that the firearms were
actually BB guns.
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Mr. David Reed testified that he was sleeping when Ms. Scott became sick and
that he did not know what time she vomited. He recalled telling the detective that he had
seen the Defendant with a gun earlier in the night but did not see him with a gun at the
time of his argument with Ms. Scott and Ms. Hines. Mr. David Reed stated that when he
arrived at Mr. Cotton’s house, he told Mr. Cotton that he believed something happened to
the victims and that he then “passed out.” Mr. David Reed agreed that he did not know
what had occurred or whether anything had occurred until his father called him.
On redirect examination, Mr. David Reed testified that he left his home because he
believed it would lead to everyone else leaving. He did not recall the Defendant’s being
angry about anything other than Ms. Scott’s vomiting. Mr. David Reed recalled telling
Detective Blackwell that the Defendant was upset because the female victims refused to
have sex with him. He agreed on recross-examination that he only assumed that the
female victims’ refusal to have sex with the Defendant was the reason that the Defendant
was upset. He acknowledged that he had a prior theft conviction from 2015.
Officer Justin Brumbaugh, a patrol officer with the Chattanooga Police
Department (“CPD”), responded to the scene with two other officers. The officers
checked the perimeter of the home and went to the front where they heard a female
screaming for help from inside the house. One of the officers had to kick in the front
door so that they could enter. Officer Brumbaugh testified that when the officer kicked in
the door, the door “swung open very easily.” He stated, “I don’t think it was secured
very well, as if maybe the latch might have been catching” onto something. Officer
Brumbaugh observed a large amount of blood in the entryway and Ms. Scott lying on the
floor in a doorway between two rooms. The officers cleared the home but did not locate
any suspects. Officer Brumbaugh observed two deceased victims lying on the floor of
the living room. He notified investigators and crime scene officers. According to the
crime scene log, Officer Brumbaugh signed in at 6:35 a.m. and left the scene at 9:15 a.m.
Mr. Dan Reed testified that although he was not Mr. David Reed’s biological
father, he raised him like his own son. Mr. Dan Reed knew the Defendant as Mr. David
Reed’s cousin and the victims as Mr. David Reed’s friends. Mr. Dan Reed lived on the
same street as Mr. David Reed and Mr. Cotton, and he awoke on the morning of
September 5, 2016, to find the police blocking off the street. Mr. Dan Reed determined
that the officers were at Mr. David Reed’s home, began searching for Mr. David Reed,
and located him at Mr. Cotton’s home. After speaking to Mr. David Reed about the
events, he drove Mr. David Reed back to his home to meet with officers. Officers placed
Mr. David Reed and Mr. Dan Reed in the back of a patrol car and drove them to the
police station, where Mr. David Reed was interviewed. Mr. Dan Reed was present for a
portion of the interview and stated that Mr. David Reed was scared and gave the officers
information about what he had witnessed.
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Mr. Dan Reed testified that while at the police station, he called Ms. Wanda
Norris, the Defendant’s aunt, because he heard that Ms. Norris had driven the Defendant
to another location. Mr. Dan Reed gave his cell phone to an officer to speak to Ms.
Norris and learned that she had taken the Defendant to a hotel.
Mr. Dan Reed testified that following the interview, he and Mr. David Reed
returned to Mr. Dan Reed’s house and that the Defendant called Mr. David Reed while
they were standing outside on the porch. Mr. Dan Reed stated that when Mr. David Reed
answered the call, he had a “s*** look on his face.” Mr. Dan Reed clarified that Mr.
David Reed appeared “shaky” and “fearful” and looked as if “he saw a ghost.” Mr. Dan
Reed asked who was calling, and Mr. David Reed replied, “Dolla,” or the Defendant.
Mr. Dan Reed took the cell phone from Mr. David Reed and asked the Defendant, “Why
the f*** did you kill my people?” The Defendant relied, “Cuz, I didn’t do that.” Mr.
Dan Reed called the Defendant a “liar,” and the Defendant hung up. Mr. Dan Reed
testified that Mr. David Reed still appeared to be scared and told him that the Defendant
asked him what the police had said to him and warned Mr. David Reed not to tell the
police anything.
Ms. Wanda Norris, the Defendant’s aunt who lived on the same street as Mr.
David Reed, testified that during the early morning hours of September 5, 2016, the
Defendant came to her house, woke her up, and asked her to drive him to a motel. Ms.
Norris stated that she had driven the Defendant to a motel on prior occasions. She drove
the Defendant to Motel 6, located about two miles away from her home. She entered the
lobby while the Defendant remained in her car, paid for the room using her credit card,
and registered the room under her name. The surveillance video of the motel was entered
as an exhibit and showed Ms. Norris in the lobby at 6:39 a.m. Ms. Norris did not recall
what time she arrived at the motel but did not dispute the time listed on the video. After
paying for the room, she returned to her car and gave the Defendant the room key. She
returned home while the Defendant remained at the motel.
Ms. Norris testified that later that same day, she was contacted by the police about
where she had taken the Defendant. She said that she initially informed the officer that
she had driven the Defendant to Econo Lodge, which was located next to Motel 6, but
that she contacted the police once she realized her mistake.
On cross-examination, Ms. Norris testified that she often helped the Defendant
obtain a motel room. She stated that she always paid for the room and registered for the
room under her name and that the Defendant would pay her back. She described the
Defendant as acting “normal” when he came to her home on the morning of the shooting,
and she did not see the Defendant with a weapon or blood on his clothes. Ms. Norris
testified that a few days after the shooting, the Defendant contacted her about turning
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himself in to the police. She met the Defendant at an agreed-upon location and drove
him to the police station. She stated on redirect examination that the Defendant had
called her and that they agreed for her to meet him near a car wash.
CPD Sergeant William Stephen Campbell, Jr., who was sergeant over the criminal
intelligence unit and the fugitive unit, testified that on September 5, 2016, he and other
officers attempted to locate the Defendant, who had outstanding arrest warrants for two
counts of homicide. Sergeant Campbell received information that the Defendant was
located at room 229 on the second story of Motel 6. The motel was an “L-shaped,” two-
story building with railing on both sides of the second story balcony and a “cut-way” that
passed between the “L.” Officers set up a perimeter around the motel, and Sergeant
Campbell and another officer were in an unmarked police vehicle parked behind the
building. As the officers were repositioning their vehicle to obtain a better vantage point,
the Defendant stepped outside of room 229. The Defendant smoked a cigarette while
staring at Sergeant Campbell’s vehicle. Sergeant Campbell testified that the tint on his
vehicle’s windows was not dark and that he was afraid that the interior of the vehicle was
visible. After the Defendant finished smoking his cigarette, he walked to his left and
around the corner, and Sergeant Campbell lost sight him. Sergeant Campbell notified the
police units in the front of the motel, but the officers were still setting up a perimeter and
did not see the Defendant. Officers continued to conduct surveillance of the motel but
did not see the Defendant anymore that day. When attempts to contact anyone inside the
motel room failed, officers obtained a search warrant, and members of the SWAT team
executed the warrant. The Defendant was not inside the room.
On cross-examination, Sergeant Campbell testified that he was aware that arrest
warrants for the Defendant were secured at around 3:00 p.m. on September 5th and that
officers arrived at the motel in the afternoon on that same day. He agreed that he did not
see the Defendant run or enter a car while at the motel. The search warrant was executed
at 9:00 p.m.
CPD Investigator Tim Pickard with the fugitive unit also assisted in attempting to
locate the Defendant and was in an unmarked police unit parked in the front of Motel 6
on September 5th. Investigator Pickard testified that officers arrived at the motel around
lunch or early afternoon and that he had been there for approximately thirty minutes
when officers parked on the other side of the motel stated over the radio that they had
observed the Defendant exit room 229. Investigator Pickard said he watched a stairwell
leading to the first floor, believing that the Defendant would walk toward that area, but
Investigator Pickard never saw the Defendant. Investigator Pickard recalled a gold
vehicle with dark-tinted windows driving from behind the motel and exiting onto the
highway around the same period of time. He observed multiple occupants inside the
vehicle, but due to the dark tint on the windows, he was only able to determine that the
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driver was female. Investigator Pickard testified that officers continued their surveillance
of the motel into the evening hours but that they never saw the Defendant again. At
approximately 9:00 p.m., SWAT officers executed a search warrant for room 229, but the
Defendant was not there.
Investigator Pickard testified that on September 6th, officers requested that the
Defendant be placed on the Tennessee Bureau of Investigation’s (“TBI”) Top Ten Most
Wanted List. He stated that in order to have a suspect placed on the list, an officer must
contact a TBI agent and advise the agent of a suspect who was wanted for a violent crime
that meets the criteria for placement on the list. The officer then would send an email to
the agent, listing the suspect’s name, any identifying characteristics, the charges, and a
summary of the circumstances leading to the charges. The agent would send the
information “up the chain of command” to determine whether the request would be
granted. Investigator Pickard testified that once a suspect is placed on the list, the TBI
disseminates information to media outlets and to state and federal law enforcement
agencies regarding the suspect, the identifying characteristics, the charges, the location
where the offenses were committed, and a summary of the events that led to the charges
in an effort to generate tips to locate the suspect.
Investigator Pickard testified that after the Defendant was placed on the list, the
TBI received a tip that the Defendant was at an apartment complex located two to three
miles from Motel 6. Officers arrived at the apartment complex on the night of September
6th and remained into the early morning hours of September 7th. However, officers were
unable to locate the Defendant or anyone associated with him and were unable to
corroborate the tip. The Defendant turned himself in to the police at 5:00 or 6:00 a.m. on
September 7th. Investigator Pickard understood that an officer was outside the police
station putting gasoline in his vehicle when the Defendant approached him and identified
himself.
CPD Sergeant Josh May, who was the head of a group violence intervention
program in September of 2016, monitored the Defendant’s Facebook page. Sergeant
May testified that at around 10:30 or 11:00 p.m. on September 6th, he located a video of
the Defendant posted on the Defendant’s Facebook page. The video, which was
approximately three minutes long, was played for the jury and entered as an exhibit at
trial. In the video, the Defendant announced that he wanted to get some information “off
[his] chest” before turning himself in to the police. He stated that there were two sides to
every story and that people could believe what they wanted to believe. He maintained,
“No p***y made me go on a m****r f***ing rampage.” He said what would make him
go on a “m****r f***ing rampage is a person not respecting who I am.” He stated that
people should get their “m****r f***ing facts straight” and that he would not go on a
“m****r f***ing killing spree over some m****r f***ing p***y.” He again mentioned
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making the recording “before I turn myself in” and warned people to leave his family
alone.
CPD Investigator Gregory Mardis with the crime scene unit received a call at
around 6:30 a.m. to respond to the scene of the shooting. After a search warrant for the
home was secured, Investigator Mardis entered the home, took photographs, and
collected evidence. He observed a puddle of vomit on the ground by the driver’s side
door of a white Saturn parked in the driveway. He collected a small bag of what
appeared to be marijuana and four lottery tickets on a gravel driveway that went along the
west side of the house, as well as beer cans on the front porch and throughout the house.
He also collected swabs from blood stains on the front porch, the floor inside the home,
and the wall behind the front door. In the den where the deceased victims’ bodies were
recovered, Investigator Mardis collected several cigarette butts and the Defendant’s
Tennessee identification card. He recovered a cell phone that was plugged into a charger
at the threshold of the door leading into the living room. He observed a large amount of
vomit around and on top of the sink in the bathroom.
Investigator Mardis testified that he collected a total of ten nine-millimeter shell
casings and five projectiles from the crime scene. The shell casings were not all the same
brands of ammunition, which Investigator Mardis stated was not uncommon. One of the
projectiles traveled through the interior of the house, through the north wall, exited the
house, and landed in the “overhang” outside the house. Investigator Mardis initially
believed that the projectile was related to the shooting but changed his opinion after
speaking with another law enforcement agent. Investigator Mardis collected two
projectiles from the home approximately two months after the shooting when the
homeowner discovered the projectiles on the floor of the den while pulling up the carpet.
Investigator Mardis testified that he collected a .380-caliber pistol in the doorway
of a bedroom located across from the den. The pistol was on the floor and against the
wall between a piece of furniture and the door frame. A magazine was in the well of the
gun, the hammer was back, and the gun had a heavy coating of dust. Investigator Mardis
located a corroded and rusted .380 caliber shell casing in the gravel driveway, which he
stated appeared as if it had been at that location for some time. Twelve .22-caliber live
rounds were recovered from a dish with some change, and other assorted items were in
the bedroom across from the living room. Nine-millimeter rounds were located inside a
blue box on top of a dresser inside another bedroom, and a live .223-caliber round was
collected from the top of a piano inside the den.
On cross-examination, Investigator Mardis agreed that the condition of the home
was “deplorable.” He noted that a separate exterior door in the kitchen was locked and
boarded, that none of the windows were broken or appeared to have been tampered, and
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that the only access into or out of the house was through the front door. He was aware
that when first responders arrived, the front door was locked and that the first responders
had to kick in the door in order to enter the house. He stated that while he dusted the
doorknob to the front door for fingerprints, he did not swab the doorknob or examine the
locking mechanism on the doorknob.
Crime scene investigators photographed the Defendant and Mr. David Reed and
collected buccal swabs from them, as well as their clothing. An investigator also took
swabs of Mr. David Reed’s hands to test for gunshot residue. Special Agent Kyle
Osborne, a forensic scientist with the Tennessee Bureau of Investigation (“TBI”),
analyzed the swabs taken from Mr. David Reed’s hands and the Defendant’s clothing for
gunshot residue and did not find gunshot residue on either the swabs or the Defendant’s
clothing. Special Agent Osborne testified that the absence of gunshot primer residue is
consistent with an individual either not firing the weapon or not being exposed to a
source of gunshot primer residue. He also testified that a negative result could occur
when the gun primer residue particles are lost due to washing, excessive time between the
discharge of the firearm and the collection of the items, or “other routine activities.”
TBI Special Agent Gregory Fort, a forensic biologist with the DNA unit, analyzed
several items collected from Mr. David Reed’s home. He concluded that the Defendant’s
DNA was on beer cans collected from outside the house, on the front porch, and
throughout the interior of the house. A swab taken from the stain on the front porch was
positive for blood and included a DNA profile that was consistent with a mixture of at
least two individuals, and the profile of the major contributor matched Ms. Scott. A stain
from the top left shoulder of a white shirt collected from the front porch was positive for
blood and included a DNA profile that was consistent with a mixture of at least four
individuals, including one unknown male. A swab taken from the neck and armpit areas
of the shirt included a DNA profile that was consistent with a mixture of at least three
individuals, and the DNA profile of the minor contributor belonged to the same unknown
male. The same unknown male’s DNA was on one of the cigarette butts recovered from
the den. The DNA profiles of two other unknown males were on other cigarette butts
recovered from the den. The DNA profile of a fourth unknown male was on beer cans
collected from the kitchen. Ms. Hines’s blood was on another cigarette butt that was
collected close to her body in the den, and Mr. Taylor’s DNA was on another cigarette
butt collected from the den. Special Agent Fort testified that it was not unusual that
multiple DNA profiles were obtained on beer cans and cigarette butts collected from a
party attended by numerous people. Special Agent Fort did not locate any blood on the
Defendant’s clothing, and he did not receive any buccal swabs from Mr. David Reed or
Mr. Cotton.
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TBI Special Agent Shelly Betts Carman with the firearm and toolmark
identification unit examined and analyzed the fired cartridge casings, projectiles,
ammunition, and the firearm collected from the scene. She testified that she examined
ten spent nine-millimeter luger cartridge casings and determined that they had all be fired
from the same unknown firearm. While Special Agent Carman was unable to determine
the manufacturer of the firearm used, she determined that the firearm had a barrel that
“tilt[ed] down” when being fired, which is typically a higher quality firearm. She entered
two of the fired cartridge casings into a national database and linked them to another
shooting that occurred in Chattanooga on February 3, 2016.
Special Agent Carman examined five projectiles recovered from the scene. She
determined that four of the projectiles had been fired through the barrel of the same
firearm and that they had class characteristics consistent with nine-millimeter
ammunition. She could not associate cartridge casings with fired projectiles. The fifth
projectile, which was recovered from the outside trim of the house, was fired from an
unknown firearm and appeared to be more tarnished or discolored than the other
projectiles. Special Agent Carman stated that the projectile showed evidence of rust,
which could result when the projectile was wet or exposed to the elements. She also
stated that the projectile could have been in the trim for a period of weeks or months.
She noted that one of the four projectiles that was fired from the same firearm was
covered in blood or tissue and began to tarnish as a result.
Special Agent Carman testified that she examined and test fired a .380-caliber
automatic pistol and determined that the cartridge casings and projectiles were not fired
from the pistol. She also received two boxes of nine-millimeter Makarov cartridges,
twelve .22-caliber LR cartridges, and a .223-caliber Remington cartridge.
On cross-examination, Special Agent Carmen testified that it was possible that the
projectile recovered from the trim could have been tarnished prior to being fired and then
fired at the same time as the other projectiles recovered from the scene. She said it also
was possible that the projectile was fired at a different time. She stated that to determine
whether the cartridge casings entered into the database where actually connected from the
February 2016 shooting, she would need to examine the cartridge casings collected from
the February 2016 shooting.
CPD Detective Christopher Blackwell, the lead detective in the case, testified that
the 911 call of the shooting was made at 6:23 a.m., and he arrived at the scene at 7:44
a.m., after Ms. Scott had been transported to the hospital. After a search warrant was
completed and executed at Mr. David Reed’s home, Detective Blackwell went to the
hospital to attempt to speak to Ms. Scott. Detective Blackwell stated that while Ms. Scott
was awake, she was in pain and afraid and that he observed injuries on her left leg and
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arm. She provided him with information about the shooting. Detective Blackwell was
only able to speak to her for about twenty minutes because she was in so much pain and
was about the be taken into surgery.
When Detective Blackwell returned to the scene, he learned that Mr. David Reed
had arrived. Officers transported Mr. David Reed and Mr. Dan Reed to the police
station, where Mr. David Reed agreed to waive his rights and speak to Detective
Blackwell. Detective Blackwell testified that Mr. David Reed was cooperative and
provided information about the homicides and that Mr. Dan Reed was present for a
portion of the interview. Mr. Dan Reed and an officer spoke to Ms. Norris and learned
that the Defendant possibly was at Motel 6. Detective Blackwell secured warrants for the
Defendant’s arrest and notified the fugitive team.
Detective Blackwell secured a search warrant for room 229 of Motel 6 and entered
the room after the warrant was executed. He stated that although the Defendant was not
inside the room, he observed evidence that someone had been there. A cell phone
charger was plugged into an outlet; cigarette butts were in an ashtray; and the bed was
unmade and appeared as if someone had sat on it. Detective Blackwell testified that the
Defendant turned himself in to the police on September 7th at approximately 6:46 or 7:00
a.m.
Detective Blackwell and another detective returned to the hospital in an attempt to
interview Ms. Scott a second time. Ms. Scott was still in critical condition as a result of
her leg injury. She identified the Defendant from a photographic lineup as someone who
attended the party on the night of the shooting.
Detective Blackwell testified that on the afternoon of September 6th, he and
another detective went to Mr. Cotton’s house to interview him. Mr. Cotton requested that
the interview take place in the detectives’ police vehicle. The detectives spoke to Mr.
Cotton for twenty-five to thirty minutes and audio recorded the interview. Detective
Blackwell stated that Mr. Cotton’s demeanor during the interview was “much different”
than his demeanor when he testified at trial. Detective Blackwell explained that during
the interview, Mr. Cotton was not as scared or emotional and was more forthcoming.
Detective Blackwell asked Mr. Cotton whether the Defendant got into an argument with
Ms. Hines and Ms. Scott, whether the Defendant became angry or upset because Ms.
Hines and Ms. Scott refused to have sex with him, and whether Mr. Cotton saw the
Defendant in the area around the time that Mr. David Reed arrived at Mr. Cotton’s home.
Detective Blackwell testified that Mr. Cotton’s answers to these questions during the
interview differed from his testimony at trial. The recorded portion of the interview
during which Mr. Cotton made the statements was played for the jury at trial and entered
as an exhibit. According to the recording, Mr. Cotton told the detectives that Ms. Hines
- 14 -
and Ms. Scott were “cussing” the Defendant out and that the Defendant was angry
because either Ms. Hines or Ms. Scott had refused to have sex with him. Mr. Cotton also
stated that less than two minutes after Mr. David Reed came to his home, Mr. Cotton saw
the Defendant outside and that Mr. David Reed was running from the Defendant.
On cross-examination, Detective Blackwell testified that he was aware that the
front door of Mr. David Reed’s home was locked when first responders arrived and that
the door had to be forced open. Detective Blackwell did not know what kind of lock was
on the door. He noted that the house was condemned by city code inspectors the next
day.
Detective Blackwell testified that Mr. David Reed stated that he had attempted to
have sex with Ms. Hines at the party, that Ms. Hines had either pushed him away or
asked him to stop, and his DNA may have been on Ms. Hines. Detective Blackwell did
not ask the medical examiner to examine Ms. Hines for the presence of semen, noting
that Mr. David Reed never mentioned getting semen on Ms. Hines and that there was
nothing to indicate that Mr. David Reed assaulted her.
Detective Blackwell stated that he was aware that Ms. Hines’s father was shot and
killed approximately six months prior to Ms. Hines’s death and that Ms. Hines was
present either at the time of or immediately after the shooting. The investigation into her
father’s death was ongoing at the time of the Defendant’s trial. Detective Blackwell did
not send additional evidence to the TBI to confirm whether the cartridge casings from the
scene were actually linked to a prior shooting as indicated from the database because he
conducted an investigation and determined that the two shootings were not related.
On redirect examination, Detective Blackwell testified that he did not have the
opportunity to collect the Defendant’s cell phone, the firearm that he possessed on the
night of the party, or the clothes that he wore to CBC. Detective Blackwell stated on
recross examination that the Defendant refused to talk to him following his arrest.
Dr. Steven Cogswell, a forensic pathologist with the Hamilton County Medical
Examiner’s Office, performed the autopsies of Ms. Hines and Mr. Taylor. Dr. Cogswell
testified that both victims died from multiple gunshot wounds and that the manner of
death for both victims was homicide. Both victims had Xanax and marijuana metabolites
in their blood.
Dr. Cogswell testified that Mr. Taylor sustained three gunshot wounds from an
undetermined range, and Dr. Cogswell was unable to determine the order in which the
wounds were received. One projectile entered behind Mr. Taylor’s right ear and exited in
the center of his forehead. The wound would have been immediately incapacitating and
- 15 -
fatal. A second projectile entered on top of the left shoulder, traveled through the muscle
of the left upper back, and exited at the shoulder blade. The projectile did not strike any
large blood vessels or organs and would not have been incapacitating or fatal alone. A
third projectile entered on the back of Mr. Taylor’s right shoulder, severed the right
carotid artery, continued through the voice box, and exited through the left side of his
jaw. This was a fatal wound that would have caused a large amount of internal bleeding.
Dr. Cogswell testified that Ms. Hines sustained five gunshot wounds. One
projectile entered Ms. Hines’s left temple and exited at her right temple, resulting in a
fatal wound. Dr. Cogswell stated that the wound was an intermediate range wound,
meaning that the barrel of the gun was between one and four feet away when it was shot.
He said that based on the “loose” and “sparse” gunpowder stippling around the wound,
the barrel of the gun was at the “outer edge” of the three-to-four-foot range. The
remainder of Ms. Hines’s gunshot wounds were sustained at an undetermined range. A
second projectile entered the outside of Ms. Hines’s left breast; traveled through her chest
wall, left lung, heart, and right lung; and exited the back of the right side of her chest. Dr.
Cogswell stated that this was a fatal gunshot wound that took a “fairly horizontal
pathway” across Ms. Hines’s chest. A third projectile entered Ms. Hines’s left upper arm
near her elbow, traveled through the muscle and soft tissue in the upper arm, and exited
on the inner portion of her left upper arm. A fourth projectile entered through the palm
near Ms. Hines’s right ring finger and exited on the nail surface of the same finger. A
fifth projectile created a “skipping” pathway across Ms. Hines’s abdomen during which
the projectile tunneled underneath portions of her skin and soft tissue. Dr. Cogswell
stated that Ms. Hines must have had her abdomen flexed when she received the injury.
This injury was not fatal and did not cause significant bleeding.
Dr. Cogwell examined photographs of the scene and information he obtained from
the autopsies to determine the locations in which Ms. Hines and Mr. Taylor “most likely”
were when they were shot. He stated that Ms. Hines’s wounds were consistent with her
being shot while sitting on the couch in the living room and then trying to stand up. Dr.
Cogswell testified that Mr. Taylor’s wounds were consistent with his getting up off the
couch while being shot, moving somewhat, and then falling. The gunshot wound to Mr.
Taylor’s head could have been sustained while he was either lying on the ground or
standing. Dr. Cogswell stated that the wounds were consistent with the shooter standing
in the doorway when Mr. Taylor and Ms. Hines were shot.
Dr. Cogswell reviewed Ms. Scott’s medical records and examined her scars, and
he testified that she sustained three gunshot wounds. One projectile caused a grazing
wound across the upper portion of her right breast, and a second projectile entered and
exited her right forearm. A third projectile entered through Ms. Scott’s lower thigh just
above her right knee, traveled through her femur and her knee joint, and exited toward
- 16 -
the front of her knee. Dr. Cogswell stated that Ms. Scott’s wounds were consistent with
her sitting in a chair and the shooter standing in a doorway when she was shot.
On cross-examination, Dr. Cogswell agreed that the scenario regarding Ms.
Scott’s receiving her wounds was based on her sitting in the chair “in a normal fashion.”
He stated that the items surrounding the chair as depicted in the photographs left little
room for Ms. Scott to sit in some other position. He agreed that he did not know whether
Ms. Scott was slumped over when she was shot, that he did not have any information
regarding her exact position, and that he did not know where her body ended up after she
was shot.
Dr. Cogswell identified a sketch prepared with regard to the shooting of Ms.
Hines’s father and noted that he sustained a gunshot wound to the left side of his head.
He stated that he did not find the fact that both Ms. Hines and her father were shot on the
left side of their heads was significant because the position of those wounds was not
unique.
Defense Proof
The Defendant presented the testimony of CPD Sergeant Victor Miller regarding
his investigation in the death of Ms. Hines’s father in March of 2016. Sergeant Miller
stated that the investigation was ongoing and that the Defendant was not a suspect. Ms.
Hines was present in the home when her father was murdered, and Sergeant Miller
interviewed her on the following day. The defense played a portion of the video-
recorded interview during which Ms. Hines stated that she was afraid that she was
providing too much information to the police, that she did not want to die also, and that
she did not feel safe. On cross-examination, Sergeant Miller testified that the recording
only depicted a small portion of the forty-five-minute interview and that one or two days
later, Ms. Hines did not express fear for her safety when he showed her a series of
photographic lineups. Sergeant Miller noted that two other witnesses who were present
at the time of the shooting were still alive. Sergeant Miller met with Detective
Blackwell, and they found no evidence linking Ms. Hines’s death with her father’s death.
Mr. Christopher Harper, a critical care paramedic who responded to the scene of
the shooting and made contact with Ms. Scott, testified that according to his records, Ms.
Scott was awake and alert, complained of severe right leg pain, advised that she did not
wish to discuss the shooting, and denied any loss of consciousness. Mr. Harper stated
that minimal external bleeding was observed around her leg because the large amount of
swelling prevented the blood from exiting.
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Ms. Terri Broadnax-Wherry, the Defendant’s aunt, testified that on the morning of
September 5, 2016, she went to the home of Mr. Cotton’s aunt, who lived next to Mr.
Cotton, once she saw news about the shooting on television. Ms. Broadnax-Wherry
arrived between 9:10 a.m. and 9:15 a.m. and sat on the front porch with others. She
stated that when she arrived, she saw several people, including Mr. Cotton, Mr. David
Reed, and Mr. Dan Reed’s other son, in Mr. Cotton’s yard, and that they appeared “really
agitated and nervous.” Mr. Cotton was pacing with his hands up. Ms. Broadnax-Wherry
stated that at one point, she saw a car pull up and that once Mr. David Reed saw the car,
he took off running toward a nearby wooded area. After the car drove away, Mr. Dan
Reed arrived, and Mr. David Reed got into Mr. Dan Reed’s car.
Ms. Broadnax-Wherry testified that she saw Mr. Cotton and Mr. Dan Reed’s other
son engage in a confrontation, during which another man got in between them. She
stated that after the confrontation, the men in the yard “put their hands in” together as if
they were “making an agreement.” Sometime around noon, she saw Mr. Cotton put a
black trash bag that contained something that was not “really small” in the trunk of a car
and then drive away. Ms. Broadnax-Wherry also saw smoking coming from a burn
barrel located at the back of Mr. Cotton’s home.
On cross-examination, Ms. Broadnax-Wherry testified that Mr. Cotton exited his
home with the trash bag. She did not know where Mr. Cotton went when he drove away,
how long he was gone, or whether the trash bag was still in the trunk of the car when he
returned. Ms. Broadnax-Wherry acknowledged that it was not unusual for Mr. Cotton to
use the burn barrel. From where she was sitting, she could not see anyone place anything
into the barrel or what was in the barrel. She could only see smoke coming from the
barrel. She acknowledged that she did not speak to the police about her observations
until July 2018, almost two years after the shooting.
Ms. Sara Cotton, Mr. Cotton’s grandmother with whom he lived, testified by
deposition that at approximately 5:30 a.m. on the morning of the shooting, the Defendant
came to her home and asked for Mr. Cotton. She did not know from which direction the
Defendant came. She spoke to the Defendant while he remained on the front porch, and
she stated that the Defendant did not appear to be nervous. Ms. Cotton did not recall
whether she saw Mr. David Reed or Mr. Cotton that day. On cross-examination, Ms.
Cotton testified that she spoke to the Defendant through the storm door while he
remained on the front porch. She told the Defendant that Mr. Cotton was sleeping and
refused to awaken him.
The jury convicted the Defendant of two counts of first degree premeditated
murder and one count each of attempted first degree murder, aggravated assault, and
employing a firearm during the commission of a dangerous felony. The trial court
- 18 -
merged the attempted first degree murder and aggravated assault convictions and
imposed an effective sentence of life imprisonment plus twenty-six years. The Defendant
filed a motion for new trial, which the trial court denied following a hearing.
ANALYSIS
I. Sufficiency
The Defendant challenges the sufficiency of the evidence supporting his
convictions, asserting that the evidence is insufficient to establish his identity as the
shooter or premeditation as an element of his convictions for premeditated first degree
murder and attempted first degree murder. The State responds that the evidence is
sufficient to support his convictions. We agree with the State.
When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal,
“‘the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.’” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any questions concerning “the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court
applies the same standard of review regardless of whether the conviction was predicated
on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.
2011). “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).
First degree murder is the premeditated and intentional killing of another. T.C.A.
§ 39-13-202(a)(1). As the trial court instructed the jury, “[a] person commits criminal
attempt who, acting with the kind of culpability otherwise required for the offense …
[a]cts with intent to cause a result that is an element of the offense, and believes the
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conduct will cause the result without further conduct on the person’s part.” T.C.A. § 39-
12-101(a)(2). As related to the present case, a person commits aggravated assault who
intentionally or knowingly causes bodily injury to another, and the assault “[i]nvolved the
use or display of a deadly weapon.” T.C.A. §§ 39-13-101(a)(1); 39-13-102(a)(1)(A)(iii).
The employment of a firearm during the commission of or attempt to commit a dangerous
felony or during the flight or escape from the commission of or attempt to commit a
dangerous felony is a criminal offense. T.C.A. § 39-17-1324(b). The State relied on the
attempted first degree murder charge as the dangerous felony. See T.C.A. § 39-17-
1324(i)(1)(A).
A. Identity
Identity is an essential element of every crime. State v. Bell, 512 S.W.3d 167, 198
(Tenn. 2015). The identification of the perpetrator of a crime is a question of fact for the
jury. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005). In resolving questions of fact,
such as the identity of the perpetrator, “‘the jury bears the responsibility of evaluating the
conflicting evidence and accrediting the testimony of the most plausible witnesses.’”
State v. Pope, 427 S.W.3d 363, 369 (Tenn. 2013) (quoting State v. Hornsby, 858 S.W.2d
892, 897 (Tenn. 1993)).
The evidence presented at trial established that earlier in the night, Ms. Hines and
Ms. Scott refused to share their drugs with the Defendant and refused to allow him to
play pool with them. The Defendant became angry when Ms. Scott vomited in the
bathroom, and he demanded that everyone leave the home. The victims refused to leave,
and Ms. Scott and Ms. Hines argued with the Defendant. As they continued to argue, Mr.
David Reed left the home and began walking down the street. The evidence established
that the only people left inside the home were the Defendant and the victims. As Mr.
David Reed was walking down the street, he heard multiple gunshots and ran to Mr.
Cotton’s home, telling Mr. Cotton, “He killed them, he killed them.” Of the four people
who remained inside the home after Mr. David Reed left, only the Defendant was not
shot or otherwise injured. The victims were shot with the same nine-millimeter gun, and
the Defendant carried a nine-millimeter gun during the party. Following the shooting, the
Defendant fled the scene, went to his aunt’s house, and had her pay for him to stay at a
motel room that was registered under his aunt’s name. Once police officers discovered
his location, the Defendant again fled to another location. While in hiding, the Defendant
called Mr. David Reed and threatened him, warning him not to talk to the police. The
Defendant also posted a video recording on Facebook in which he did not deny shooting
the victims but, instead, acknowledged that he was aware that he was wanted by the
police, and maintained that the feeling of disrespect and not the denial of his sexual
advances would lead him to go on a “rampage.” We conclude that this evidence is
sufficient to support the jury’s finding that the Defendant was the shooter.
- 20 -
B. Premeditation
The Defendant challenges his premeditated first degree murder and attempted first
degree murder convictions, arguing that the evidence is insufficient to establish
premeditation. A premeditated act is one “done after the exercise of reflection and
judgment.” T.C.A. § 39-13-202(d). Premeditation requires a finding that “the intent to
kill must have been formed prior to the act itself. It is not necessary that the purpose to
kill preexist in the mind of the accused for any definite period of time.” Id. The statute
also specifies that “[t]he mental state of the accused at the time the accused allegedly
decided to kill must be carefully considered in order to determine whether the accused
was sufficiently free from excitement and passion as to be capable of premeditation.” Id.
Premeditation is a question of fact for the jury’s determination. State v. Davidson,
121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could
lead a rational trier of fact to infer that premeditation was established by the proof as
required by statute. Id. at 615. Courts frequently look to the circumstances surrounding a
killing to discern the presence of evidence sufficient to support a finding of
premeditation. State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013). Factors
which tend to support the existence of premeditation include: the use of a deadly weapon
upon an unarmed victim; the particular cruelty of the killing; declarations by the
defendant of an intent to kill; evidence of procurement of a weapon; preparations before
the killing for concealment of the crime; and calmness immediately after the killing.
Bland, 958 S.W.2d at 660. The factors listed in Bland are not exhaustive, however. State
v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of the killing or evidence
establishing a motive for the killing may also support a conclusion that the crime was
premeditated. Id. Repeated blows, although not alone sufficient to establish
premeditation, may be a relevant factor in determining the existence of premeditation. Id.Mutilation of the body may show that a killing was not rash or impulsive. Davidson, 121
S.W.3d at 616. Lack of provocation by the victim, failure to render aid, and destruction
or secretion of evidence may also support an inference of premeditation. Larkin, 443
S.W.3d at 815-16 (citing State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v.
Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000)).
When viewed in the light most favorable to the State, the evidence presented at
trial established that Ms. Scott and Ms. Hines refused to share their drugs with the
Defendant or allow him to play pool with them. The Defendant became angry when Ms.
Scott vomited in the bathroom sink, and he demanded that the victims leave. The victims
refused, and the Defendant began arguing with Ms. Scott and Ms. Hines. While standing
at a doorway, the Defendant shot the unarmed victims numerous times while they were
sitting down. Two of the victims were shot in the head, and ten bullet casings were
recovered. The Defendant did not render aid to the victims but, instead, fled the scene
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and hid in a motel room registered under his aunt’s name. In a video recording on
Facebook, the Defendant suggested that he shot the victims for being disrespectful to
him. The gun that he used to shoot the victims was never recovered. We conclude that
this evidence is sufficient to establish premeditation.
II. Batson Violation
During voir dire, the trial court denied the Defendant’s challenge, pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986), to the State’s striking a prospective juror who
was African American. The Defendant asserts that the trial court failed to make the
requisite findings in denying the challenge, and he urges this court to remand the case to
the trial court for a new hearing. The State responds that the trial court properly found
that the Defendant failed to make out a prima facie case of discrimination.
A. Proceedings in the Trial Court
During voir dire, the prosecutor asked prospective juror number 10 (“Juror 10”),
who was retired, whether she was looking forward to being sequestered, and Juror 10
replied that she was not. After the trial court explained sequestration, Juror 10 asked
whether she would be required to go to the hotel that night, and the trial court affirmed
that she would. Juror 10 stated that she did not drive and that she did not have anyone to
drive her to the hotel because her son was out of the country. The trial court stated that it
was possible that someone from the sheriff’s department could drive Juror 10 to the hotel.
Juror 10 affirmed that she would not be distracted by staying at a hotel but that her only
issue was the lack of transportation to the hotel. She also affirmed that she could be fair
and impartial. Later during voir dire, Juror 10 again expressed concern that she did not
have transportation to the hotel.
At the conclusion of voir dire, the State struck Juror 10, and defense counsel
objected based upon Batson. The following exchange occurred:
THE COURT: No, it’s premature at this point because they’ve only
used one challenge. The Court doesn’t find there’s a pattern.
[DEFENSE COUNSEL]: A pattern.
THE COURT: The Court has to find a pattern of discriminatory
action before the State has to provide any race-neutral explanation.
[DEFENSE COUNSEL]: I thought if we made a prima facie case,
they would have to answer what their neutral basis was?
- 22 -
THE COURT: One person doesn’t make a prima facie case.
[DEFENSE COUNSEL]: Judge, juror number 10 was African
American, and she gave no reasons for being struck and that’s why I’m
making a challenge.
THE COURT: Well, the State doesn’t have to give a reason yet. I
think there has to be a pattern—
[DEFENSE COUNSEL]: I have an objection.
THE COURT: --and I don’t think one person constitutes a pattern.
After the Defendant was convicted of the offenses, he alleged in his motion and
amended motion for new trial that the trial court erred in denying his Batson claim.
Although the State filed a written response to the Defendant’s motion, the State did not
address the Batson issue.
During a status hearing prior to the hearing on the motion for new trial, the trial
court stated that it had conducted additional research on the Batson issue and had
reviewed the trial transcript. The trial court stated, “I did not recall this, but that juror
was an elderly woman who had—she could not drive and she had issues related to her
transportation. That was not provided as a race-neutral reason, but it certainly would
have been one.” The trial court continued, “I, in looking at the law, don’t believe that
there was any prima facie showing of any kind of pattern of discrimination, which has to
be shown.”
During the hearing on the motion for new trial, defense counsel argued that the
trial court erred in finding that the defense was required to establish a pattern of
discrimination in order to demonstrate a prima facie case under Batson. Defense counsel
also argued that Juror 10 was African American, that the State gave no reasons for
striking the juror, and that the trial court failed to make adequate findings in denying the
Batson challenge. The trial court responded:
I do recall from reading the transcript in preparation for this hearing, and
because the Court did not make any further statement in the record at the
time of the trial related to this proceeding, as I went back and read it, that
the juror who was excused had expressed—I believe she was an elderly
woman—I think she was in her eighties—and she also indicated that she
did not drive, and there was going to be—there had already been something
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come up about traveling to and from court to home and to the hotel, and I
think I had indicated whether or not—my thought process about whether or
not the sheriff could assist her with that, so the State never gave a reason,
but I think it is significant that those things existed also at the time.
The trial court asked the prosecutor why the juror was stricken, and the prosecutor
responded, “Just that that was the reason for—that was the reason she was struck,
because of her issues, I guess, with transportation, and her age. It had nothing to do with
the fact that she was African American.” The trial court stated, “While the Court does
not want to discriminate—would not be based on age either—and certainly, I know that
at the time I had it in my mind as well that the situation of sequestration could be a
hardship on a person of that age.” The trial court noted that one of the jurors who sat on
the jury was African American. The trial court did not make any further findings on the
Batson issue and did not address the issue in its written order.
B. Analysis
“‘Peremptory challenges, along with challenges for “cause,” are the principal tools
that enable litigants to remove unfavorable jurors during the jury selection process.’”
State v. Spratt, 31 S.W.3d 587, 598 (Tenn. Crim. App. 2000) (quoting United States v.
Annigoni, 96 F.3d 1132, 1137 (9th Cir. 1996), overruled on other grounds as recognized
in United States v. Lindsey, 634 F.3d 541, 544 (9th Cir. 2011)). A peremptory challenge
allows for the removal of jurors who may exhibit hostility or bias but whose removal for
cause has not been established. Id.However, the use of a peremptory challenge to remove a juror on the basis of race
violates the Equal Protection Clause of the Fourteenth Amendment. Batson, 476 U.S. at
89; State v. Hugueley, 185 S.W.3d 356, 368 (Tenn. 2006). In Batson, the United States
Supreme Court established a three-step process that a trial court must undertake to
determine whether a juror was improperly challenged on the basis of race. 476 U.S. at
97-98. First, the defendant must make a prima facie showing of purposeful
discrimination against a venire member. Id. at 93-94. A defendant “may make out a
prima facie case of purposeful discrimination by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.” Id. Under this first step, the
defendant need not establish that the State’s challenge was “more likely than not the
product of purposeful discrimination.” Johnson v. California, 545 U.S. 162, 170 (2005).
A defendant can establish a prima facie case merely by demonstrating that the State
excluded members of a cognizable racial group from the jury pool. State v. Echols, 382
S.W.3d 266, 281 (Tenn. 2012). Furthermore, “the exercise of even one peremptory
challenge in a purposefully discriminatory manner would violate equal protection.” State
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v. Ellison, 841 S.W.2d 824, 827 (Tenn. 1992) (concluding that Batson applied even
though only one member of the venire belonged to the cognizable racial group).
If the defendant establishes such a prima facie case, the burden shifts to the State
to articulate a race-neutral reason for excluding the juror or jurors. Batson, 476 U.S. at
97. The prosecutor may not merely assert that the reason for the challenge was not
discriminatory. Ellison, 841 S.W.2d at 827. The State’s race-neutral explanation “must
be a clear and reasonably specific account of the prosecutor’s legitimate reasons for
exercising the challenge … [but] need not be persuasive, or even plausible.” Hugueley,
185 S.W.3d at 368 (citing Batson, 476 U.S. at 98 n.20; Purkett v. Elem, 514 U.S. 745,
767-68 (1995)). The State’s explanation need not include a reason that would justify
excusing the juror for cause. Batson, 476 U.S. at 97. “‘Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed
race[-]neutral.’” Hugueley, 185 S.W.3d at 368 (quoting Purkett, 514 U.S. at 768).
Finally, if the State offers a race-neutral reason, the trial court must determine if
the defendant has established purposeful discrimination. Batson, 476 U.S. at 98. This
step requires that the trial court examine the State’s reasoning to ensure it is not
pretextual. Hugueley, 185 S.W.3d at 368. When considering this third step, “the decisive
question will be whether counsel’s race-neutral explanation for a peremptory challenge
should be believed.” Hernandez v. New York, 500 U.S. 353, 365 (1991). “‘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.’” State v. Kiser, 284 S.W.3d 227, 255 (Tenn. 2009) (quoting Hugueley, 185
S.W.3d at 368).
“[D]etermination of the prosecutor’s discriminatory intent or lack thereof turns
largely on the evaluation of the prosecutor’s credibility, of which the attorney’s demeanor
is often the best evidence.” State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); see
Flowers v. Mississippi, 139 S.Ct. 2228, 2243-44 (2019). The United States Supreme
Court has recognized that a defendant may present a variety of evidence to support a
claim that a prosecutor’s peremptory strikes were made on the basis of race, including:
(1) statistical evidence comparing the prosecutor’s use of peremptory strikes against
African-American jurors and Caucasian jurors in the case; (2) the prosecutor’s disparate
questioning of African-American and Caucasian jurors in the case; (3) “side-by-side
comparisons” of African-American jurors who were struck and Caucasian jurors who
were not challenged; (4) the “prosecutor’s misrepresentations of the record when
defending the strikes during the Batson hearing”; (5) relevant history of the State’s use of
peremptory strikes in past cases; or (6) any other relevant circumstance bearing upon the
issue. Flowers, 139 S.Ct. at 2243. “When a prosecutor misstates the record in explaining
a strike, that misstatement can be another clue showing discriminatory intent.” Id. at
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2250. A prosecution’s shifting of reasons for the strike also suggests that the reasons
may be pretextual. Foster v. Chatman, 136 S.Ct. 1737, 1751 (2016).
“[T]he ultimate burden of establishing purposeful discrimination lies with the
party objecting to the peremptory challenge.” Hugueley, 185 S.W.3d at 374 (citing
Batson, 476 U.S. at 93). When ruling on a Batson challenge, the trial court must give
specific reasons for each of its factual findings, including: (1) whether a prima facie case
has been established; (2) whether a race-neutral reason for the challenge has been
provided; and (3) whether the totality of the circumstances supports a finding of
purposeful discrimination. Id. at 369 (citing Woodson v. Porter Brown Limestone Co.,
916 S.W.2d 896, 906 (Tenn. 1996)). The trial court’s findings are to be accorded great
deference on appeal, and this court will not set aside those findings unless they are
“clearly erroneous.” Woodson, 916 S.W.2d at 906.
The trial court improperly found that the Defendant was required to show a pattern
of discrimination in order to establish a prima facie case of purposeful discrimination.
Both the Tennessee Supreme Court and this court have held that it is not necessary to
show a “pattern” of strikes against potential jurors of a particular race. See e.g., Ellison,
841 S.W.2d at 827; Timothy Tyrone Sanders v. State, No. M2003-02416-CCA-R3-PC,
2005 WL 354100, at *4 (Tenn. Crim. App. Feb. 15, 2005); Benjamin Blackwell v. State,
No. W2001-02179-CCA-R3-PC, 2003 WL 402805, at *6 (Tenn. Crim. App. Feb. 12,
2003); State v. Theddaeus Medford, No. W2001-02930-CCA-R3-CD, 2003 WL 141049,
at *3 (Tenn. Crim. App. Jan. 14, 2003). The exclusion of a single juror of a particular
race may be sufficient to constitute a prima facie case. Ellison, 841 S.W.2d at 827;
Timothy Tyrone Sanders, 2005 WL 354100, at *4; Theddaeus Medford, 2003 WL
141049, at *3.
During a post-trial status hearing, the trial court again incorrectly stated that the
Defendant was required to make a “prima facie showing of any kind of pattern of
discrimination.” The trial court exacerbated the error by taking it upon itself to determine
a reason for excluding the juror and to find that the reason was “race-neutral,” instead of
requiring the State to provide its reasons for excluding the juror. By doing so, the trial
court assumed the State’s role and burden of providing a race-neutral reason for striking
the juror. The purpose of the three-step inquiry in Batson is not to determine whether any
race-neutral justification existed for excluding the juror but to ascertain the State’s actual
reason for excluding the juror and determine whether the reason articulated by the State
— and not by the trial court — is race-neutral.
During the hearing on the Defendant’s motion for new trial, the trial court repeated
the reasons that the court had found justified excluding the juror and then asked the State
for its reasons for excluding the juror. The prosecutor unsurprisingly agreed with the
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reasons that the trial court had articulated and previously found to be race-neutral.
However, the prosecutor’s response was equivocal, stating that he “guess[ed]” the juror
was excluded due to her advanced age and transportation issues. The trial court failed to
provide the Defendant with the opportunity to respond to the reason for excluding the
juror determined by the trial court and somewhat acquiesced in by the State. The trial
court made no further findings on the issue either during the hearing or in its order
denying the Defendant’s motion for new trial.
The trial court failed to comply with the three-step inquiry for determining a
Batson violation and failed to make adequate findings to determine the validity of the
Defendant’s objection to the State’s exclusion of the juror. Therefore, we remand the
case to the trial court for a hearing to address the three-part test under Batson. See
Ellison, 841 S.W.2d at 826; State v. Joan Odell, No. W2018-01341-CCA-R3-CD, 2019
WL 6499438, at *9 (Tenn. Crim. App. Dec. 3, 2019), no perm. app. filed; Theddaeus
Medford, 2003 WL 141049, at *3. At the hearing, the Defendant should be given the
opportunity to proceed with his efforts to establish a violation. The trial court shall make
specific findings, applying the principles set forth in this opinion. If the trial court
concludes that the Defendant has met his burden of establishing a Batson violation, the
trial court shall grant the Defendant a new trial. If the trial court concludes that the
State’s exercise of the preemptory challenge did not violate Batson, the Defendant shall
have the right to appeal the trial court’s decision.
III. Juror Misconduct
The Defendant asserts that a juror failed to disclose her prior knowledge of the
Defendant through a family relationship during voir dire and on the written jury
questionnaire. The Defendant also asserts that the same juror provided the rest of the jury
with extraneous information during deliberations when she “used her specialized
knowledge of a regional dialect to translate” the Defendant’s statements in his Facebook
video. The Defendant maintains that, as a result, his right to a fair trial with an impartial
jury was violated. The State responds that the Defendant waived his claim that the juror
withheld her prior knowledge of him by failing to challenge the juror’s qualifications
when the familiarity became apparent. The State further responds that the trial court
properly found that the juror was unaware of her distant connection to the Defendant and
brought no prior knowledge of him to jury deliberations. Finally, the State argues that
the juror’s inferences about the meaning of the Defendant’s language on the Facebook
video did not constitute improper extraneous information.
- 27 -
A. Proceedings in the Trial Court
Prior to trial, juror number 26 (“Juror 26”) completed a jury questionnaire in
which she stated that she had no knowledge of the homicides of Mr. Taylor and Ms.
Hines and that she had not seen any news stories or other media regarding the homicides.
During voir dire, the trial court asked all of the prospective jurors whether anyone knew
the Defendant, and none of the jurors indicated that they did. The State against asked the
prospective jurors whether they knew the Defendant, and no one responded.
Following the July 2018 trial and the January 2019 sentencing hearing, the
Defendant alleged in an amended motion for new trial filed in July of 2019 that Juror 26
had prior knowledge of the parties, which she failed to disclose during voir dire and that
due to her prior knowledge, Juror 26 introduced extraneous prejudicial information
during jury deliberations. The Defendant alleged that Juror 26’s uncle was married to the
sister of the mother of the Defendant’s child.
In support of his claim, the Defendant attached the affidavit of Ms. Soronia
Shant’a Millsaps, the mother of the Defendant’s child. In the affidavit, which was signed
and sworn on April 30, 2019, Ms. Millsaps stated that her sister was married to Juror 26’s
uncle from 2013 until 2017. She stated that she and the Defendant attended her sister’s
wedding reception and that Juror 26 also was in attendance. Ms. Millsaps also stated that
she and the Defendant had attended children’s birthday parties and family events in
which Juror 26 was present. Ms. Millsaps believed that as a result, Juror 26 had
knowledge of the Defendant prior to trial.
The Defendant also attached the affidavit of his niece, Ms. Emma Bentley, which
was signed and sworn on May 8, 2019. Ms. Bentley stated that she and Juror 26 had
attended school together and that they graduated high school in 2014. Ms. Bentley
recalled that while they were in high school, Juror 26 approached her and stated, “I didn’t
know Dolla was your [u]ncle.” Ms. Bentley stated in the affidavit that the conversation
indicated to her that Juror 26 had knowledge of the Defendant and his nickname, “Dolla.”
Ms. Bentley also stated that she and Juror 26 had been friends on Facebook for several
years and that Ms. Bentley frequently posted on Facebook about the Defendant, including
his photograph and information about “his prior criminal charges.” She stated that as a
result, she believed Juror 26 had knowledge of the Defendant prior to trial.
The State filed a response, maintaining that Juror 26 had no prior knowledge of
the Defendant and, therefore, did not introduce extraneous prejudicial information during
jury deliberations. The State attached Juror 26’s affidavit, in which she stated that she
was unaware of any connection with the Defendant prior to trial, during the trial, or
during jury deliberations. She stated that after the trial, a family member informed her
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that the Defendant was her “uncle’s wife’s sister’s husband.” She denied relaying any
outside information to any other juror during the course of the trial or deliberations. The
State also attached the affidavits of two other jurors, both of whom stated that they were
unaware of any connection between the Defendant and any other juror during the trial or
deliberations and that they were unaware of any juror relaying “outside information”
about the Defendant to other jurors.
On January 16, 2020, one of the Defendant’s counsel signed and filed an affidavit
regarding his telephone conversation with juror number 28 (“Juror 28”) on October 29,
2018. Defense counsel stated that Juror 28 described comments made by Juror 26, which
defense counsel believed exposed the jury to extraneous prejudicial information. Defense
counsel relayed that Juror 28 stated that during deliberations, Juror 26 reviewed the
Defendant’s Facebook video and told other jurors the meaning of specific language used
by the Defendant in the video. Defense counsel stated that Juror 28 told him that Juror 26
relied upon knowledge “of his own family members, implying it was gang related,” and
that Juror 26 believed “it was her service” to explain the Defendant’s language. Defense
counsel stated that according to Juror 28, Juror 26 believed “the colors in the evidence”
were gang-related.
Prior to the hearing, the State filed a motion requesting that the trial court conduct
an in camera examination of the jurors prior to conducting an evidentiary hearing in
order to protect the jurors and their privacy. The State noted that the Defendant knew
members of Juror 26’s family, had a violent criminal history, was affiliated with a gang,
and had threatened and attempted to influence some of the State’s witnesses. The
defense filed a response in opposition to the motion.
During a status hearing, the State announced that Juror 26 was upset and afraid
and that she did not want to testify during an evidentiary hearing because the Defendant
knew her and her family. Juror 26 contacted the prosecutor’s office and reported that
since the verdict, members of the Defendant’s family had attempted to contact her and
that “it has been ongoing…since the verdict.” The trial court found that Juror 26’s
concern was reasonable and that the court would not require Juror 26 to testify unless the
court determined that the Defendant established a prima facie case that shifted the burden
to the State. The trial court instructed defense counsel to have Ms. Bentley and Ms.
Millsaps present to testify at the hearing.
During the hearing on the Defendant’s motion for new trial, the affidavits
previously submitted by the parties were entered as exhibits. The defense also presented
the testimony of Ms. Bentley, Ms. Millsaps, and Juror 28.
- 29 -
Ms. Bentley testified that she did not attend the Defendant’s trial and that she and
Juror 26 had attended school together. Ms. Bentley recalled that in 2014, when they were
seniors in high school, Juror 26 approached and said she did not know that “Dolla,” who
is the Defendant, was Ms. Bentley’s uncle. Ms. Bentley stated that while she and Juror
26 were friends on Facebook, Ms. Bentley posted photographs of the Defendant, news
articles about the case, and statements such as “free my uncle.”
On cross-examination, Ms. Bentley testified that the Defendant did not know who
Juror 26 was at the time of trial and that she informed the Defendant of Juror 26’s
identity “a couple of weeks” after the trial. The Defendant told Ms. Bentley that Juror 26
looked familiar.
On redirect examination, Ms. Bentley testified that during the conversation
establishing that “Dolla” was her uncle, Juror 26 responded that the Defendant was
“crazy.” Ms. Bentley acknowledged on recross examination that this information was not
included in her affidavit even though she reviewed the affidavit before signing it to
ensure that all relevant information was included. She maintained that the affidavit did
not include her entire conversation with Juror 26.
In response to questioning by the trial court, Ms. Bentley testified that after the
trial, family members told her about Juror 26. Ms. Bentley told her relatives that she and
Juror 26 were once friends, and Ms. Bentley’s aunt informed her that Juror 26 was the
niece of the husband of Ms. Millsaps’s sister. Ms. Bentley stated that a few weeks later,
she had a telephone conversation with the Defendant and identified Juror 26. The
Defendant responded that Juror 26 had looked familiar.
Ms. Millsaps, the mother of the Defendant’s son, testified that she did not know
where the Defendant was living prior to his arrest. She stated that her sister was married
to Juror 26’s uncle. Ms. Millsaps attended trial and said that while Juror 26 seemed
“familiar” to her, she did not recognize Juror 26. Ms. Millsaps told the Defendant that
Juror 26 seemed “familiar” after the jury was selected, and the Defendant did not tell her
that he knew Juror 26.
In response to questioning by the trial court, Ms. Millsaps testified that around
September of 2013, she and the Defendant attended the wedding reception of her sister
and Juror 26’s uncle. Juror 26 also attended the reception, and Ms. Millsaps agreed that
the Defendant had the opportunity to see Juror 26 at the reception. Ms. Millsaps stated
that in 2012, she and the Defendant attended parties and family events during which Juror
26 also was present. Ms. Millsaps testified that she was around Juror 26 a sufficient
amount of time where Juror 26 looked familiar to her, but Ms. Millsaps was unable to
recognize Juror 26 when she saw her at trial.
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Juror 28 testified in response to questioning by the trial court that Juror 26, who
was the only African-American juror, did not tell other jurors that she was related to the
Defendant and did not provide them with any information about the Defendant that the
jurors did not learn during the trial. Juror 28 recalled that the Defendant used language in
the Facebook video that some of the jurors “culturally wouldn’t have understood” and
that Juror 26 “was able to tell us a little bit more based on her understanding, culturally,
what that meant.”
In response to questioning by defense counsel, Juror 28 testified that Juror 26 did
not mention that any of the language used by the Defendant was gang-related, that her
family members had ties to gangs, or that the colors displayed by some of the exhibits
indicated gang connections. Juror 28 stated that a “gang relation possibility” was evident
to some jurors based upon “the information that was received.” She said that Juror 26
had either relatives or friends who had experience with gangs and “was able to
understand certain gang slang that those of us that had never been in or around gang slang
would not have known.” Juror 28 stated that Juror 26 was not the only juror who
understood the language. Juror 28 denied that Juror 26 expressed that she felt that it was
“her service” to explain the Defendant’s language. Juror 28 recalled that someone asked
Juror 26 the meaning of some of the language and that Juror 26 explained the meaning of
the words “based on her experience.” Juror 28 testified that Juror 26 had to explain the
language on two or three occasions, but Juror 28 could not recall the exact words that
Juror 26 had to explain.
The trial court entered a written order denying the Defendant’s claims. The trial
court found that the jury was not exposed to extraneous information when Juror 26
explained some of the language used by the Defendant in the Facebook video. The trial
court found that Juror 26’s life experiences enabled her to infer facts from the evidence.
The trial court credited Juror 28’s testimony over the information in defense counsel’s
affidavit. The trial court noted that inconsistencies between Juror 28’s testimony and
defense counsel’s affidavit were possibility related to the fact that defense counsel’s
conversation with Juror 28 occurred in October 2018 and the affidavit was not sworn
until January 2020. The trial court found that defense counsel’s affidavit describing what
Juror 28 said to him about Juror 26’s statements contained hearsay, which was
insufficient to establish relief.
In rejecting the Defendant’s claims that Juror 26 misrepresented her knowledge of
the Defendant and demonstrated bias, the trial court noted that if the Defendant had
expressed concern about Juror 26’s seeming familiar at any time during the trial, the
court could have considered excusing her as an alternate. The trial court also noted that
despite Ms. Millsaps’s allegations that she and the Defendant had attended events during
which Juror 26 was present, neither Ms. Millsaps nor the Defendant could recognize
- 31 -
Juror 26 other than to say that she looked familiar. The trial court found that the failure
of Ms. Millsaps and the Defendant to recognize Juror 26 corroborated Juror 26’s
statement that she, too, was unaware of any connection to the Defendant at any time prior
to the conclusion of her jury duty.
The trial court expressed “concern[]” regarding Ms. Bentley’s testimony, which
was absent from her affidavit, that Juror 26 called the Defendant “crazy” during a
conversation that occurred approximately five years prior to Ms. Bentley’s testimony,
“especially considering the length of time that has expired since her alleged conversation
with [Juror 26], and the fact that the Defendant is her uncle, giving her the opportunity
for bias or personal interest in how the case is decided.” The trial court found that any
claim that Juror 26’s Facebook friendship with Ms. Bentley must have resulted in Juror
26’s recognizing the Defendant due to Ms. Bentley’s posts pertaining to his charges was
rebutted by Juror 26’s responses to the jury questionnaire in which she denied knowing
any information about the homicides.
The trial court found that Juror 26’s responses to voir dire questions established
that she did not recognize the Defendant and that no evidence was presented suggesting
any reason for Juror 26 to have been untruthful. The trial court also found that based
upon the totality of the evidence, including the affidavits of other jurors, Juror 26’s
explanations as provided in her affidavit were credible. The trial court did not require
Juror 26 to testify at a hearing but determined that her affidavit constituted sufficient
proof. In determining whether to require Juror 26 to testify, the trial court considered its
observation of Juror 26 during voir dire and the public policy considerations behind
Tennessee Rule of Evidence 606(b), which include “the prevention of jury harassment,
encouragement of free and open jury deliberation, promotion of finality of verdicts, and
the reduction of the incentive for jury tampering.” Based upon Juror 26’s responses to
questioning during voir dire, her affidavit, and the affidavits of other jurors, the trial court
concluded that Juror 26 did not know who the Defendant was until after her duty as a
juror concluded, that she did not intentionally fail to disclose information during voir
dire, and that she did not engage in any misconduct. The trial court determined that the
Defendant failed to establish by a preponderance of the evidence that Juror 26 engaged in
misconduct.
B. Analysis
Both the Sixth Amendment to the United States Constitution and article I, section
9 of the Tennessee Constitution guarantee the right to a trial by an impartial jury. “An
unbiased and impartial jury is one that begins the trial with an impartial frame of mind,
that is influenced only by the competent evidence admitted during the trial, and that bases
its verdict on that evidence.” State v. Smith, 418 S.W.3d 38, 45 (Tenn. 2013) (citing
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State v. Adams, 405 S.W.3d 641, 650-51 (Tenn. 2013); Durham v. State, 188 S.W.2d
555, 558 (Tenn. 1945)). The Defendant raises two allegations of juror misconduct on
appeal: (1) Juror 26 failed to disclose her knowledge of the Defendant during voir dire;
and (2) Juror 26 provided the other jurors with extraneous prejudicial information during
deliberations.
1. Failure to Disclose During Voir Dire
This court has recognized the importance of guarding the jury selection process to
ensure that a defendant is afforded a fair trial and that the verdict is reached by an
impartial jury. State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App. 1993). “‘The
ultimate goal of voir dire is to ensure that jurors are competent, unbiased and impartial.’”
Smith v. State, 357 S.W.3d 322, 347 (Tenn. 2011) (quoting State v. Hugueley, 185
S.W.3d 356, 390 (Tenn. 2006)). Challenges to a juror’s qualifications generally fall into
two categories: propter defectum (“on account of defect”) and propter affectum (“on
account of prejudice”). Carruthers v. State, 145 S.W.3d 85, 94 (Tenn. Crim. App. 2003)
(citing Akins, 867 S.W.2d at 355). Propter defectum challenges which are “based upon
general disqualifications, such as alienage, family relationship, or statutory mandate,”
must be raised prior to the return of the verdict. Id. Propter affectum challenges, which
are “based upon the existence of bias, prejudice, or partiality towards one party in the
litigation actually shown to exist or presumed to exist from circumstances,” may be
raised after the verdict in a motion for new trial. Id. The Defendant makes a propter
affectum challenge, alleging bias by Juror 26.
Voir dire provides for the impaneling of a fair and impartial jury through questions
that allow counsel to intelligently exercise challenges. Akins, 867 S.W.2d at 354.
Counsel’s full knowledge of the facts that might bear upon a juror’s qualifications is
essential to the intelligent exercise of peremptory and for-cause challenges. Id. at 355.
Jurors, therefore, are obligated to make “‘full and truthful answers … neither falsely
stating any fact nor concealing any material matter.’” Id. (quoting 47 Am. Jur. 2d, Jury §
208 (1969)).
The defendant has the burden of establishing a prima facie case of bias or
partiality. Id. A presumption of prejudice arises when “a juror willfully conceals (or
fails to disclose) information on voir dire which reflects on the juror’s lack of
impartiality.” Id. Silence in the face of a material question reasonably calculated to elicit
a response is equivalent to a negative answer. Smith, 357 S.W.3d at 348. The State may
rebut the presumption through evidence establishing the absence of “actual prejudice” or
“actual partiality.” Akins, 867 S.W.2d at 357. In determining whether the presumption is
overcome, the trial court “must view the totality of the circumstances, and not merely the
juror’s self-serving claim of lack of partiality.” Id.- 33 -
The State maintains that the Defendant waived this issue by failing to challenge
Juror 26 at trial. “Even in cases of propter affectum, challenges after the verdict are not
proper unless the ‘particular disqualification of a juror was unknown to the defendant and
his attorney at the time of the jury’s selection.’” State v. Jay Chambers, No. E2002-
01308-CCA-R3-CD, 2004 WL 626715, at *4 (Tenn. Crim. App. Mar. 25, 2004) (quoting
Durham v. State, 188 S.W.2d 555, 557 (Tenn. 1945)). According to the evidence
presented at the motion for new trial hearing, the Defendant did not recognize Juror 26 at
trial but only stated that she looked familiar. Under these circumstances, we cannot
conclude that the Defendant waived this issue by failing to bring Juror 26’s mere
familiarity to the trial court’s attention during the trial.
As found by the trial court, the Defendant failed to establish that Juror 26
recognized the Defendant from the events that they both attended six to seven years prior
to trial when neither the Defendant nor Ms. Millsaps were able to recognize Juror 26
from the events. Although Ms. Bentley testified regarding Juror 26’s knowledge of the
Defendant based upon Ms. Bentley’s conversation with Juror 26 approximately four
years prior to trial and Ms. Bentley’s Facebook posts about the Defendant, the trial court
declined to credit Ms. Bentley’s testimony. The trial court’s factual findings, such as the
credibility and weight afforded to a witness’s testimony, is reviewed on appeal de novo,
accompanied by a presumption of correctness unless the evidence preponderates
otherwise. Adams, 405 S.W.3d at 656 (citing Tenn. R. App. P. 13(d); Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001)). The trial court found that Juror 26’s statement in her
affidavit that she was unaware of her connection with the Defendant until after her jury
obligations concluded was supported by the affidavits and testimony of other jurors that
no one on the jury mentioned a connection with or prior knowledge of the Defendant
during the trial or deliberations. The evidence presented at the hearing does not
preponderate against the trial court’s findings.
The Defendant asserts that the trial court erred in relying upon Juror 26’s affidavit
and, instead, should have required Juror 26 to be present to testify at the hearing. Insofar
as the Defendant challenges the trial court’s reliance on Juror 26’s affidavit, we note that
the affidavit was entered as an exhibit at the hearing without objection by the defense.
Thus, the Defendant may not claim for the first time on appeal that the trial court erred in
considering the affidavit. See Tenn. R. App. P. 36(a) (providing that appellate courts
need not grant relief when the objecting party “failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”); State v.
Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time
on appeal are considered waived.”).
With regard to the Defendant’s claim that the trial court should have required
Juror 26 to testify at the hearing, our supreme court has stated,
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when misconduct involving a juror is brought to a trial court’s attention, “it
[is] well within [the judge’s] power and authority to launch a full scale
investigation by summoning … all the affiants and other members of the
jury, if need be, with a view of getting to the bottom of the matter, and thus,
if necessary, upon [the judge’s] own motion.”
Smith, 418 S.W.3d at 46 (quoting Shew v. Bailey, 260 S.W.2d 362, 368 (Tenn. Ct. App.
1951)). Courts have recognized the “general reluctance to ‘haul jurors in after they have
reached a verdict in order to probe for potential instances of … misconduct.’” State v.
James Webb, No. 02C01-9512-CC-00383, 1997 WL 80971, at *11 (Tenn. Crim. App.
Feb. 27, 1997) (quoting United States v. Infelise, 813 F. Supp. 599, 605 (N.D. Ill. 1993));
see State v. Kevin Waggoner, No. E2018-01065-CCA-R3-CD, 2019 WL 4635589, at *20
(Tenn. Crim. App. Sept. 24, 2019), perm. app. denied (Tenn. Feb. 19, 2020). Such post-
verdict inquiries may lead to the harassment of jurors, the inhibition of jury deliberations,
an increase in meritless pleadings, an increased temptation to tamper with the jury, and
uncertainty in jury verdicts. United States v. Vitale, 459 F.3d 190, 197 (2d Cir. 2005).
Prior to the evidentiary hearing, the State announced that Juror 26 was afraid of
testifying in the Defendant’s presence, that the Defendant knew Juror 26 and her family,
and that the Defendant’s family members had made “ongoing” efforts to contact Juror 26
since the verdict. There was proof at trial that the Defendant had threatened one witness.
The trial court expressed concern regarding the harassment of Juror 26 by the
Defendant’s family and ultimately determined that Juror 26’s testimony was unnecessary.
Based upon evidence presented at trial regarding the Defendant’s prior threatening of
witnesses, his family’s harassment of Juror 26, her fear of testifying, and the trial court’s
credibility determinations regarding the witnesses presented by the Defendant at the
hearing, we conclude that the trial court did not err in determining that Juror 26’s
presence and testimony were unnecessary.
We must determine whether the Defendant established a prima facie case of bias
when Juror 26 failed to reveal her connection with the Defendant at trial but was unaware
of that connection until after the verdict. In State v. Akins, this court noted that when a
juror provides false or misleading responses during voir dire, intent is not dispositive and
that a mistaken answer also raises a presumption of bias. Akins, 867 S.W.2d at 356 n.15;
see State v. Willie Calvin Taylor, Jr., No. W2011-00671-CCA-R3-CD, 2012 WL
2308088, at *8 (Tenn. Crim. App. June 18, 2012). Akins, however, did not involve a
juror who provided a mistaken answer; rather, the jury in Akins deliberately provided
false answers and demonstrated actual bias against the defendant. Id. at 357. The court
in Akins cited to Hyatt v. State, 430 S.W.2d 129 (Tenn. 1967), to support the proposition
that intent is not dispositive. Akins, 867 S.W.2d at 356 n.15. In Hyatt, the juror did not
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realize that he knew the defendant as someone against whose premises the juror
previously had secured a search warrant until another juror referred to the defendant by a
nickname during deliberations. Hyatt, 430 S.W.2d at 129-30. Although the court noted
that “‘[w]here the jury or juror has prejudiced the case, and the knowledge of his bias or
prejudice is unknown until after the verdict, the courts say it must be presumed that his
prejudices enter into and become a part of the result,’” the court’s reversal of the
conviction also was based on the finding that the juror was actually hostile to the
defendant. Id. (quoting McGoldrick v. State, 21 S.W.2d 390, 391 (Tenn. 1929)).
Unlike the juror in Hyatt who learned of his connection to the defendant during
deliberations and before a verdict had been rendered, the trial court found that Juror 26
did not learn of her connection to the Defendant until deliberations had concluded and a
verdict had been rendered. This court has recognized that “‘bias of the juror, ignorant of
the relationship until after the verdict, cannot be presumed.’” State v. Johnny W. Raines,
No. 86-224-III, 1987 WL 16072, at *3 (Tenn. Crim. App. Aug. 26, 2987) (quoting
Nashville, Chattanooga & St. Louis Railway v. Williams, 46 S.W.2d 814, 815 (Tenn.
1932)). This court has declined to grant a defendant relief based upon a juror’s failure to
reveal a relationship with one of the parties when the juror did not learn of the
relationship until after the verdict was rendered. See, e.g. State v. Daniel Darrell Inman,
No. E2005-01010-CCA-R3-CD, 2006 WL 3718235, at *19 (Tenn. Crim. App. Dec. 18,
2006) (noting that because the juror did not learn that his friend was the prosecutor’s
brother until after the trial had ended, the juror “could not be expected to disclose such
information during voir dire or during the trial”); Murphy v. State, 560 S.W.2d 414, 415
(Tenn. Crim. App. 1977) (holding that “no prejudice to the defendant can be shown”
when a juror had no knowledge of her relationship to one of the parties at the time the
juror was seated and did not learn of the relationship until after the trial was completed).
Because Juror 26 was unaware of any connection with the Defendant at the time of
trial, Juror 26 could not have been expected to reveal the connection during voir dire or
during the trial. Furthermore, Juror 26 could not have relied upon, considered, or
otherwise utilized that connection in rendering a verdict. Therefore, we conclude that the
Defendant failed to establish a prima facie case of bias and is not entitled to relief.
2. Extraneous Prejudicial Information
Our supreme court has recognized that a jury’s exposure to extraneous prejudicial
information or improper outside influence during trial renders the validity of the verdict
“questionable.” Adams, 406 S.W.3d at 650 (citing State v. Blackwell, 664 S.W.2d 686,
688 (Tenn. 1984)). Extraneous prejudicial information is defined as “information in the
form of either fact or opinion that was not admitted into evidence but nevertheless bears
on a fact at issue in the case.” Id. (citations omitted). “An improper outside influence is
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any unauthorized ‘private communication, contact, or tampering directly or indirectly,
with a juror during a trial about the matter pending before the jury.’” Id. at 650-51
(quoting Remmer v. United States, 347 U.S. 227, 229 (1954)).
The party challenging the validity of the verdict has the burden of presenting
admissible evidence that the jury was exposed to extraneous prejudicial information or to
an improper outside influence. Id. External influences that may warrant a new trial if
prejudicial include: “‘(1) exposure to news items about the trial; (2) consideration of
facts not admitted in evidence; and (3) communication with non-jurors about the case.’”
Carruthers v. State, 145 S.W.3d 85, 92 (Tenn. Crim. App. 2003) (quoting Caldararo v.
Vanderbilt Univ., 794 S.W.2d 738, 742 (Tenn. Ct. App. 1990)). Internal influences that
do not constitute grounds for relief include: “‘(1) discussions among jurors; (2)
intimidation or harassment of one juror by another; (3) a juror’s personal experiences not
directly related to the litigation; and (4) a juror’s subjective thoughts, fears, and
emotions.’” Id. (quoting Caldararo, 794 S.W.2d at 742). Once the challenging party
meets his or her burden of making an initial showing that the jury was exposed to
extraneous prejudicial information or an improper outside influence, a rebuttable
presumption of prejudice arises, and the burden shifts to the State to explain the conduct
or establish that the conduct was harmless. Adams, 405 S.W.3d at 651 (citing Walsh v.
State, 166 S.W.3d 641, 647 (Tenn. 2005)).
Trial courts are guided by Tennessee Rule of Evidence 606(b) in determining
whether evidence is admissible to challenge a verdict. Rule 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon any juror’s mind or
emotions as influencing that juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes, except that a juror
may testify on the question of whether extraneous prejudicial information
was improperly brought to the jury’s attention, whether any outside
influence was improperly brought to bear upon any juror, or whether the
jurors agreed in advance to be bound by a quotient or gambling verdict
without further discussion; nor may a juror’s affidavit or evidence of any
statement by the juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes.
Rule 606(b) “permits juror testimony to establish the fact of extraneous information or
improper influence on the juror; however, juror testimony concerning the effect of such
information or influence on the juror’s deliberative process is inadmissible.” Walsh, 166
S.W.3d at 649.
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The Defendant maintains that Juror 26’s explanation to other jurors of the words
that the Defendant used in the Facebook video constituted extraneous prejudicial
information. The trial court found that Juror 26’s explanation did not constitute
extraneous information. In reaching this conclusion, the trial court credited Juror 28’s
testimony over defense counsel’s affidavit, which the trial court noted included hearsay
about a conversation that occurred months before the affidavit was sworn.
The Defendant presented no evidence that Juror 26’s explanation was based upon
her personal experience with or knowledge of the Defendant. Rather, Juror 28 testified
that Juror 26 mentioned that her explanation was based upon her personal experience
with family members, who were affiliated with gangs. This court has held that
“information that can be inferred from the evidence offered at trial is not extraneous
information.” State v. Crenshaw, 64 S.W.3d 374, 393 (Tenn. Crim. App. 2001).
“‘[J]urors are free to use their common knowledge and judgment derived from
experience, observation, and reflection to decide whether a fact is logically deducible or
reasonably inferred from the evidence.’” Id. (quoting State v. Nesbit, 978 S.W.2d 872,
886 (Tenn. 1998)). Juror 26 simply used her knowledge and experience to infer the
meaning of the words used by the Defendant in a Facebook video that was entered as an
exhibit at trial. We conclude that Juror 26’s explanation did not constitute extraneous
information. Therefore, the Defendant is not entitled to relief regarding this issue.
IV. Excited Utterance
The Defendant contends that the trial court erred in admitting Mr. Dan Reed’s
testimony that Mr. David Reed informed him that the Defendant warned Mr. David Reed
against providing any information about the shootings to the police. The Defendant
maintains that Mr. Dan Reed’s testimony was inadmissible hearsay and that the trial court
erred in admitting the testimony under the hearsay exception for excited utterances. The
State responds that the trial court properly found that Mr. David Reed’s statement met the
requirements of an excited utterance. We agree with the State.
Mr. David Reed testified at trial that the Defendant called him after the shooting
and while Mr. David Reed was with Mr. Dan Reed. Mr. David Reed acknowledged
telling Mr. Dan Reed that he was afraid of the Defendant, but Mr. David Reed testified
that he did not recall telling Mr. Dan Reed that the Defendant warned him to not tell the
police anything about the shooting.
Mr. Dan Reed testified that after Mr. David Reed spoke to the police, they
returned to Mr. Dan Reed’s house and were on the front porch when Mr. David Reed
received a telephone call. Mr. Dan Reed stated that when Mr. David Reed answered the
call, he had a “s**t look on his face.” Mr. Dan Reed clarified that Mr. David Reed
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seemed fearful, upset, and “shaky” and that “[t]he look on his face was just like he saw a
ghost.” Mr. Dan Reed asked Mr. David Reed who was calling, and Mr. David Reed
replied, “Dolla,” or the Defendant. At some point, Mr. Dan Reed took the telephone
from Mr. David Reed and argued with the Defendant. Mr. Dan Reed stated that
following the telephone call, Mr. David Reed still appeared frightened and told Mr. Dan
Reed that the Defendant had told him not to tell the police what happened.
During a bench conference, defense counsel objected and argued that Mr. Dan
Reed’s testimony called for double hearsay. Defense counsel acknowledged that the
Defendant’s statements to Mr. David Reed would fall within a hearsay exception but
argued that Mr. David Reed’s statements to Mr. Dan Reed did not. The State responded
that the Defendant’s statements to Mr. David Reed were party opponent admissions and
that Mr. David Reed’s statements to Mr. Dan Reed fell within the excited utterance
hearsay exception. The State argued that Mr. David Reed was under the stress or
excitement of the telephone call that he received from the Defendant and that Mr. David
Reed’s statements related to the substance of the call.
The trial court found that Mr. David Reed, who was subject to a material witness
warrant, was a reluctant witness and that he was more forthcoming to the police than he
was on the witness stand. The trial court noted that Mr. David Reed made the statements
within twenty-four hours of the shooting, after which he appeared at Mr. Cotton’s house
crying. The trial court stated that Mr. David Reed was “somewhat emotional about the
whole episode.” The trial court noted that when Mr. David Reed received the telephone
call, he became fearful and shaky as if he had seen a ghost. The trial court determined
that Mr. David Reed’s statements fell within the excited utterance hearsay exception.
Following the bench conference, Mr. Dan Reed testified that Mr. David Reed
informed him that the Defendant asked what the police were saying and told Mr. David
Reed that he should not provide any information to the police.
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.- 39 -
An exception to the rule prohibiting hearsay that is included in the Tennessee
Rules of Evidence is a “statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.” Tenn. R.
Evid. 803(2). In order for the exception to apply “(1) there must be a startling event or
condition that causes the stress of excitement; (2) the statement must relate to the startling
event or condition; and (3) the statement must be made while the declarant was under the
stress of excitement.” State v. Land, 34 S.W.3d 516, 528-29 (Tenn. Crim. App. 2000).
The rationale behind the exception is that (1) because the statement is made
spontaneously in response to a startling event, there is little opportunity for reflection or
likelihood of fabrication and (2) that the statement will accurately reflect events while
they are fresh in the declarant’s mind. State v. Gordon, 952 S.W.2d 817, 819-20 (Tenn.
1997) (citing Neil P. Cohen, et. al., Tennessee Law of Evidence § 8.03(2).1 at 532 (3d ed.
1995)). The declarant must also have personal knowledge of the facts in the hearsay
statement in order for the exception to apply. Kendrick, 454 S.W.3d at 479. The
statement ought to be so spontaneous that it “preclude[s] the idea of deliberation and
fabrication.” State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993).
The application of the exception requires that there be a startling event or
condition. “The startling event need not be the act that gave rise to the legal
controversy.” Kendrick, 454 S.W.3d at 478. “[A] subsequent startling event or condition
which is related to the prior event can produce an excited utterance.” Gordon, 952
S.W.2d at 820 (concluding that the startling event was the victim’s pain from urination
related to the rape); State v. Carpenter, 773 S.W.2d 1, 9 (Tenn. Crim. App. 1989)
(holding that the startling even was the defendant’s return to the scene). “[S]tatements
made in response to questions may still be admissible if the declarant is under the
excitement or stress of the event.” Gordon, 952 S.W.2d at 820-21. The startling even
should be such that it “‘suspend[s] the normal, reflective thought processes of the
declarant.’” State v. Franklin, 308 S.W.3d 799, 823 (Tenn. 2010) (quoting State v. Stout,
46 S.W.3d 689, 699 (Tenn. 2001), superseded by statute as stated in State v. Odom, 137
S.W.3d 572, 581 (Tenn. 2004)).
Next, the statement must relate to the event. “A statement relates to the startling
even when it describes all or part of the event or condition, or deals with the effect or
impact of that event or condition.” Kendrick, 454 S.W.3d at 478.
Finally, the statement must be made under the stress or excitement from the event
or condition. Our supreme court has recognized that
[t]he “ultimate test” under this prong is whether the statement suggests
“spontaneity” and whether the statement has a “logical relation” to the
shocking event. When “an act or declaration springs out of the transaction
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while the parties are still laboring under the excitement and strain of the
circumstances and at a time so near it as to preclude the idea of deliberation
and fabrication,” this prong may be satisfied.
Id. (quoting Gordon, 952 S.W.2d at 820). In determining if the declarant is under the
stress or excitement of the startling event, the court may consider the interval between the
event and the statement, the nature and seriousness of the events, and the appearance,
behavior, outlook, and circumstances of the declarant. See State v. Smith, 868 S.W.2d
561, 574 (Tenn. 1993). The declarant’s circumstances include age and physical or mental
condition. Kendrick, 454 S.W.3d at 478. “[T]he ‘length of time between a startling event
and the statement does not automatically preclude the statement’s being admissible as an
excited utterance.’” State v. Banks, 271 S.W.3d 90, 116-17 (Tenn. 2008) (quoting Rickey
Williams v. State, No. W2006-00605-CCA-R3-PC, 2007 WL 2120174, at *7 (Tenn.
Crim. App. July 24, 2007)). The contents of the statement, which might indicate the
degree of the declarant’s stress, can also be considered. Kendrick, 454 S.W.3d at 478.
The court may also consider whether the statement is made in response to an inquiry or
whether it is self-serving. Id. at 479. “[W]hen a statement is made in response to an
inquiry or when the statement is self-serving, these factors may show the statement was
the result of reflective thought.” Id.
The Defendant argues that none of the three requirements for the application of the
excited utterance hearsay exception have been met. The Defendant notes that Mr. David
Reed testified at trial and he did not recall making the statement to Mr. Dan Reed.
However, the trial court found that Mr. David Reed was a reluctant witness whose
presence at trial had to be secured through a material witness warrant and that Mr. David
Reed was not forthcoming in his testimony at trial. Rather, Mr. Dan Reed testified that
when the Defendant called, Mr. David Reed became frightened, was shaking, and
appeared as if he had seen a ghost. We conclude that the Defendant’s calling Mr. David
Reed less than twenty-four hours after the Defendant was alleged to have shot Mr. David
Reed’s friends, killing two of them, was a startling event that caused the stress of
excitement. Mr. David Reed’s statement to Mr. Dan Reed related to the telephone call.
Mr. David Reed made the statement shortly after the call while he was still frightened.
Mr. David Reed was still laboring under the excitement from the telephone call and made
the statement at a time so near to the call as to preclude “‘the idea of deliberation and
fabrication.’” Kendrick, 454 S.W.3d at 478 (quoting Gordon, 952 S.W.2d at 820). We,
therefore, conclude that the trial court properly found that Mr. David Reed’s statement
was admissible as an excited utterance.
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V. Evidence of the Defendant’s Placement on the TBI’s Most Wanted List
The Defendant asserts that the trial court erred in admitting evidence that he was
placed on the TBI’s Most Wanted List. He maintains that the evidence was irrelevant
and unfairly prejudicial. The State responds that the trial court did not abuse its
discretion in admitting the evidence because the evidence was relevant to the Defendant’s
conscious and prolonged flight and its probative value was not substantially outweighed
by the danger of unfair prejudice. We agree with the State.
Prior to trial, the Defendant filed a motion in limine seeking to exclude any
evidence of his placement on the TBI’s Top Ten Most Wanted List. The Defendant
argued that the evidence was irrelevant and unfairly prejudicial. The State argued at trial
that the evidence was relevant to the Defendant’s flight and consciousness of guilt. The
State noted the steps that the police took in an effort to locate the Defendant and stated
that on September 6, 2016, when the police were unable to apprehend the Defendant,
they placed him on the TBI’s Most Wanted List, that the Defendant’s photograph was
shown to other law enforcement agencies throughout the state and the country, that a
reward was set, and that the Defendant turned himself in to the police on the following
morning. The State argued that placement on the list does not mean that a perpetrator is
guilty but only that the perpetrator has been charged with an offense.
The trial court noted that while the State had argued flight, the defense had argued
that the Defendant had turned himself in to the police voluntarily. The trial court found
that in light of the Defendant’s argument, the degree to which there was information in
the community about the Defendant’s charges was relevant and probative. The trial court
also found that the evidence was relevant as to the steps that officers had taken to attempt
to locate the Defendant. The trial court found that while the Defendant was “cloaked in
this stigma of being accused at this particular point,” the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice.
Relevant evidence is “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401. All relevant
evidence, subject to certain exceptions, is generally admissible under Rule 402 of the
Tennessee Rules of Evidence. Relevant evidence may be excluded if “its probative value
is substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403. The
admissibility of evidence is within the sound discretion of the trial court, and its decision
will not be disturbed on appeal absent an abuse of discretion. See Pylant v. State, 263
S.W.3d 854, 870 (Tenn. 2008).
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At trial, the State presented evidence of law enforcement’s efforts to locate and
apprehend the Defendant, while the defense argued that the Defendant voluntarily turned
himself in to the police. Evidence that the Defendant turned himself in to the police a
short time after he was placed on the TBI’s Most Wanted List, information about the
Defendant the charges was disseminated, and a reward for information leading to his
arrest was offered was relevant to the issue of flight and to rebut the defense’s claim that
the Defendant turned himself in to the police upon his own volition. The evidence is
especially probative in light of proof of the Defendant’s efforts to elude capture prior to
his placement on the list. While the evidence was somewhat prejudicial, the trial court
found that the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. We conclude that the trial court properly exercised its
discretion in admitting the evidence.
CONCLUSION
We remand the case to the trial court for a hearing regarding whether the State
struck a potential juror in violation of Batson. At the hearing, the Defendant should be
given the opportunity to proceed with his efforts to establish a violation. The trial court
shall make specific findings, applying the principles set forth in this opinion. If the trial
court concludes that the Defendant has met his burden of establishing a Batson violation,
the trial court shall grant the Defendant a new trial. If the trial court concludes that the
State’s exercise of the peremptory challenge did not violate Batson, the Defendant shall
have the right to appeal the trial court’s decision. We conclude that the Defendant is not
entitled to relief with regard to his remaining claims.
____________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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