State of Tennessee v. Jeremy McMillon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 24, 2011

STATE OF TENNESSEE v. JEREMY MCMILLON

Appeal from the Criminal Court for Hamilton County

No. 265349 Barry A. Steelman, Judge

No. E2010-01091-CCA-R3-CD - Filed September 22, 2011

Appellant, Jeremy McMillon, was indicted by the Hamilton County Grand Jury for first

degree murder and felony murder. At the conclusion of a jury trial, Appellant was convicted

of first degree murder. As a result, he was sentenced to life in prison. After the denial of a

motion for new trial, Appellant appealed, presenting the following issues for our review: (1)

whether the testimony of accomplice Cory Haden was sufficiently corroborated; (2) whether

the trial court erred in admitting the introduction of testimony about a bullet found during the

autopsy into evidence; (3) whether the evidence was sufficient to support the conviction; and

(4) whether the trial court erred by refusing to grant a new trial on the basis of newly

discovered evidence. After a thorough review of the record, we determine: (1) that the

evidence was sufficient to support the conviction; (2) that if the jury determined Mr. Haden

was an accomplice, his testimony was sufficiently corroborated; (3) that the trial court did

not err in admitting testimony about a bullet found during the autopsy into evidence as an

exception to the hearsay rule; and (4) that the trial court properly denied the motion for new

trial on the basis of newly discovered evidence. Accordingly, the judgment of the trial court

is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and

D. K ELLY T HOMAS, J R., JJ., Joined.

Donna Miller, Chattanooga, Tennessee, for the appellant, Jeremy McMillon.

Robert E. Cooper, Jr., Attorney General and Reporter, Cameron L. Hyder, Assistant Attorney

General; William H. Cox, III, District Attorney General, and Boyd Patterson, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

In August of 2007, Appellant, an individual named Eric Carter, and Lemario Rashard

Branham were indicted for the offenses of felony murder1 and premeditated murder for their

involvement in the death of Larry Lebron Parks. Prior to trial, Co-defendant Branham pled

guilty in a best interest plea to voluntary manslaughter. Co-defendant Carter pled guilty to

second degree murder.

A jury trial was held in March of 2009. At trial, the State’s star witness was Corey

Haden, the cousin of Co-defendant Eric Carter. Mr. Haden admitted at trial that his

testimony at trial was inconsistent with his testimony at a prior preliminary hearing. Mr.

Haden stated that he had made mistakes in his earlier testimony. At the time of the incident

involved, Mr. Haden was a juvenile. According to Mr. Haden, on the evening of March 7,

2007, he was at a cousin’s home recording some songs in a recording studio. Around 8:00

p.m., Mr. Carter arrived and told Mr. Haden that he was going to go to the “front store,” a

convenience store and gas station in the East Lake section of Chattanooga, Tennessee. Mr.

Carter asked Mr. Haden if he wanted to join him. Mr. Carter was driving his champange-

colored Ford Expedition.

When they arrived at the store there were a lot of people hanging out. Mr. Haden’s

brother was there. Mr. Haden got out of the vehicle to visit with his brother. Mr. Haden saw

Appellant pull up in a red Pontiac Grand Am. Appellant approached Mr. Carter and said that

he “heard” Mr. Carter’s “car got shot up.” Appellant asked Mr. Carter if he wanted to “do

something about it.” Mr. Carter told Appellant he wanted to “ask the dude named Peyton

why he shoot [sic] up my car.” Appellant told Mr. Carter he was a “pussy” and a “bitch” that

“let the n_____ shoot your car up and ain’t going to do nothing about it.” The men seemed

to get into an argument about the issue. Finally, Mr. Carter told Appellant to follow him.

Appellant never rode in Mr. Carter’s vehicle.

At trial, Mr. Haden testified that Appellant was mad about an incident that had

happened a few weeks prior during which one of his friends was shot in the face by someone

in Eastdale. Appellant had made it known that he was out to “get” the people responsible for

the shooting.

1

The indictment for felony murder was dismissed prior to trial on motion of Appellant and co-defendants after

the State conceded that there was no proof of an underlying felony.

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At that time, Mr. Carter drove his Expedition to “Mr. G’s” house. Mr. Haden rode

with him in the vehicle along with two other individuals; they were followed by Appellant

and Lemario Branham in the red Pontiac. Mr. Carter got out, went inside, and returned with

a rifle. The two cars traveled quickly down a side street off of Gillespie before stopping.

Mr. Branham and Appellant exited their vehicle and walked up to Mr. Carter’s Expedition.

Mr. Branham had a handgun. Mr. Branham, Appellant, and Mr. Carter went down the hill

on foot. Mr. Haden stayed back at the vehicle and could not see them anymore.

Mr. Haden heard gunshots from at least two different guns. Mr. Haden asked Mr.

Carter what was going on down there. Mr. Carter told him not to worry about it. Mr.

Branham and Appellant ran back up the hill. The two unidentified men who were riding with

Mr. Carter hopped out of his car and into Appellant’s car before they sped off. Mr. Haden

did not see a gun in Appellant’s hand.

The two vehicles traveled back to “Mr. G’s” house where Mr. Haden saw Appellant

getting out of the vehicle with an AK-47 assault rifle. According to Mr. Haden, Appellant

bragged, “I hit one of them n_____s, one of them n_____s dropped.” Mr. Haden described

Appellant as “happy” and “excited.” Mr. Haden was able to identify Appellant in a lineup.

Gregory Guillroy, or “Mr. G,” testified that he saw Mr. Carter on the night of the

incident. Mr. Carter drove his vehicle to the house that night to get a gun. He was

accompanied by a red car. Mr. Carter handed “Mr. G” an assault rifle that was still hot.

Another person handed a handgun to Mr. Carter in a plastic bag. Mr. Guillroy testified that

he later gave the assault rifle to Mr. Carter’s father. Mr. Guillroy testified that he did not see

Appellant at his house that night.

Mr. Guillroy recalled that Mr. Haden was sitting in the passenger seat of Mr. Carter’s

vehicle and there were four people in the red car. One of the men in the red car got out and

threw something in the drainage ditch. Officers later recovered a live .223 round in the

drainage ditch during the investigation. They also found a .380 semi-automatic handgun in

a plastic bag in Mr. Guillroy’s backyard and a .260 caliber bolt-action rifle in the front yard.

Charlie Jefferson, a friend of the victim, testified at trial. Mr. Jefferson was with the

victim on the night of the incident. The two decided to walk to the store for a quart of beer

to split. They heard gunshots, and Mr. Jefferson instructed his friend to “get down.” The

men tried to run hand in hand to the “corner” and “hide.” The victim let go of Mr.

Jefferson’s hand, and the two men fell to the ground. When the shots ended, Mr. Jefferson

found his friend lying in a ditch “all twisted.” Mr. Jefferson stated that the bullets came from

the hill and were “flying everywhere.” Mr. Jefferson testified that there were some “young

guys” standing in the street before the shooting started.

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Fingerprints were lifted from the Expedition that matched the fingerprints of Mr.

Carter, Mr. Branham, Mr. Haden, and Appellant. Appellant’s fingerprints were located near

gunshot residue primer that was found on the Expedition on the passenger-side doorframe

and armrest. Appellant’s prints were on the inside and outside of the passenger side door.

At the scene, authorities found twelve .223 shell casings and three .380 shell casings. The

assault rifle was not located.

Several other witnesses came forward that were able to testify that a tan SUV and red

car were seen on the night of the crime driving quickly down the street.

Mary Goolsby, a pathologist, testified that the victim suffered a gunshot wound to the

chest. The victim was not dead on arrival at the hospital but later died as a result of the

gunshot wound. The bullet entered the victim’s body through his back, split his spinal cord

in two, passed through his liver, his right lung, and exited the body through the chest. Marie

McGee, a forensic technician who assisted in the autopsy of the victim, testified at trial. She

testified that a bullet was found during the victim’s autopsy and the bullet must have fallen

out of the victim’s clothing. The bullet was identified as a .223 caliber bullet. There was

testimony from a firearms expert that the .223 caliber bullet could not have been fired from

the rifle that was recovered from Mr. Guillroy’s yard.

Appellant called Carol Pilcher, Appellant’s aunt, to testify. At the time of the

incident, Ms. Pilcher recalled that Appellant had been staying with her for a few weeks. On

the evening of the incident, Appellant came home between 8:30 p.m. and 9:00 p.m. Ms.

Pilcher remembered the time because the Jeopardy television show had concluded. Ms.

Pilcher admitted that she had a prior felony for a forged check.

At the conclusion of the proof, the jury found Appellant guilty of first degree murder.

Appellant filed a motion for new trial and several amendments. After a hearing, the trial

court denied the motion for new trial. A timely notice of appeal followed. On appeal,

Appellant argues that the evidence was insufficient, that the accomplice testimony was

uncorroborated, that the trial court improperly allowed the State to introduce testimony about

the bullet found during the autopsy of the victim, and that the trial court erred by denying the

motion for new trial despite the introduction of new evidence.

Analysis

Sufficiency of the Evidence

Appellant argues on appeal that the evidence was insufficient to support the

conviction. Specifically, Appellant contends that there was “absolutely no evidence to

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corroborate the testimony of Corey Haden, an uncharged accomplice, and . . . no evidence

of the requisite mens rea of premeditation . . . .” The State disagrees.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to

review that claim according to certain well-settled principles. A verdict of guilty, rendered

by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. The relevant question the

reviewing court must answer is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.

P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

precluded from re-weighing or reconsidering the evidence when evaluating the convicting

proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction

is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379

(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

The identity of the perpetrator is an essential element of any crime. State v.

Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). However, the identification of the defendant

as the person who committed the crime is a question of fact for the trier of fact. See State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993).

First degree murder is described as “[a] premeditated and intentional killing of

another; . . . .” T.C.A. § 39-13-202(a). Tennessee Code Annotated section 39-13-202(d)

provides that:

“[P]remeditation” is an act done after the exercise of reflection and judgment.

“Premeditation” means that the intent to kill must have been formed prior to

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the act itself. It is not necessary that the purpose to kill pre-exist in the mind

of the accused for any definite period of time. The mental state of the accused

at the time the accused allegedly decided to kill must be carefully considered

in order to determine whether the accused was sufficiently free from

excitement and passion as to be capable of premeditation.

An intentional act requires that the person have the desire to engage in the conduct or

cause the result. T.C.A. § 39-11-106(a)(18). Whether the evidence was sufficient depends

entirely on whether the State was able to establish beyond a reasonable doubt the element of

premeditation. See State v. Sims, 45 S.W.3d 1, 7 (Tenn. 2001); State v. Hall, 8 S.W.3d 593,

599 (Tenn. 1999). Whether premeditation is present is a question of fact for the jury, and it

may be inferred from the circumstances surrounding the killing. State v. Young, 196 S.W.3d

85, 108 (Tenn. 2006); see also State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000); State v.

Pike, 978 S.W.2d 904, 914 (Tenn. 1998).

Premeditation may be proved by circumstantial evidence. See, e .g., State v. Brown,

836 S.W.2d 530, 541-42 (Tenn. 1992). Our supreme court has identified a number of

circumstances from which the jury may infer premeditation: (1) the use of a deadly weapon

upon an unarmed victim; (2) the particular cruelty of the killing; (3) the defendant’s threats

or declarations of intent to kill; (4) the defendant’s procurement of a weapon; (5) any

preparations to conceal the crime undertaken before the crime is committed; (6) destruction

or secretion of evidence of the killing; and (7) a defendant’s calmness immediately after the

killing. See Pike, 978 S.W.2d at 914-15; State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).

This list, however, is not exhaustive and serves only to demonstrate that premeditation may

be established by any evidence from which the jury may infer that the killing was done “after

the exercise of reflection and judgment.” T.C.A. § 39-13-202(d); see Pike, 978 S.W.2d at

914-15; Bland, 958 S.W.2d at 660.

One learned treatise states that premeditation may be inferred from events that occur

before and at the time of the killing:

Three categories of evidence are important for [the] purpose [of inferring

premeditation]: (1) facts about how and what the defendant did prior to the

actual killing which show he was engaged in activity directed toward the

killing, that is, planning activity; (2) facts about the defendant’s prior

relationship and conduct with the victim from which motive may be inferred;

and (3) facts about the nature of the killing from which it may be inferred that

the manner of killing was so particular and exacting that the defendant must

have intentionally killed according to a preconceived design.

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2 Wayne R. LaFave, Substantive Criminal Law § 14.7(a) (2d ed. 2003).

We agree with Appellant that convictions may not be based solely upon the

uncorroborated testimony of accomplices. See State v. Robinson, 971 S.W.2d 30, 42 (Tenn.

Crim. App. 1997). However, Tennessee law requires only a modicum of evidence in order

to sufficiently corroborate such testimony. See State v. Copeland, 677 S.W.2d 471, 475

(Tenn. Crim. App. 1984). More specifically, precedent provides that:

The rule of corroboration as applied and used in this State is that there must be

some evidence independent of the testimony of the accomplice. The

corroborating evidence must connect, or tend to connect the defendant with the

commission of the crime charged; and, furthermore, the tendency of the

corroborative evidence to connect the defendant must be independent of any

testimony of the accomplice. The corroborative evidence must[,] of its own

force, independently of the accomplice’s testimony, tend to connect the

defendant with the commission of the crime.

State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (quoting Sherrill v. State,

321 S.W.2d 811, 815 (Tenn. 1959)). In addition, our courts have stated that:

The evidence corroborating the testimony of an accomplice may consist of

direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. The quantum of evidence necessary to corroborate

an accomplice’s testimony is not required to be sufficient enough to support

the accused’s conviction independent of the accomplice’s testimony nor is it

required to extend to every portion of the accomplice’s testimony. To the

contrary, only slight circumstances are required to corroborate an accomplice’s

testimony. The corroborating evidence is sufficient if it connects the accused

with the crime in question.

Id. at 589 (footnotes omitted). Furthermore, we note that the question of whether an

accomplice’s testimony has been sufficiently corroborated is for the jury to determine. See

id. at 588; State v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997).

When the evidence at trial is clear and undisputed that a witness participated in the

crime, the trial court is required to declare that witness an accomplice as a matter of law and

properly instruct the jury regarding corroboration of accomplice testimony. State v. Lawson,

794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). When the evidence of whether a witness is

an accomplice is unclear, however, it becomes a question of fact for the jury to determine

whether the witness is an accomplice. Id.; State v. Green, 915 S.W.2d 827, 831-32 (Tenn.

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Crim. App. 1995). If the jury determines the witness is an accomplice, they must also

determine whether there is corroborating evidence to support the witness’s testimony. Id.

During the trial herein, there was testimony from Officer Scott Bales indicating that

Mr. Haden was never charged during the investigation because he was not considered an

accomplice. At the conclusion of the testimony and prior to the jury charge, there was

discussion as to whether Mr. Haden was an accomplice. The trial court held that the

determination of whether Mr. Haden was an accomplice was a question for the jury. The

trial court instructed the jury as to their duty as part of the jury instructions, informing the

jury if they determined that Mr. Haden was an accomplice, his testimony had to be

sufficiently corroborated.

The jury could have determined that Mr. Haden was not an accomplice. If that was

the case, then it was unnecessary for his testimony to be corroborated. If the jury determined

that Mr. Haden was an accomplice, we conclude that the record contains independent

evidence that corroborated his testimony implicating Appellant. Mr. Haden testified that

Appellant was involved in the crime and drove a red Pontiac the night of the incident. There

were multiple witnesses who testified that they saw a red car following a champagne-colored

Expedition after hearing gunshots in the area. Further, Appellant’s fingerprints were located

in the Expedition near the gunshot residue primer. While “Mr. G” did not recall seeing

Appellant at his home that night, he did recall seeing a red Pontiac with at least four

passengers inside.

Moreover, in a light most favorable to the State, a rational trier of fact could have

found Appellant guilty of first degree murder based on the facts entered into evidence at trial.

In the case at hand, the jury concluded that Appellant acted with premeditation when killing

the victim. Several of the circumstances listed by our supreme court from which a trier of

fact can infer premeditation were present in the facts presented to the jury. Appellant

approached Mr. Carter and suggested retaliation against someone for previous incidents and

that he was “ready to do these n_____s.” Appellant followed Mr. Carter to “Mr. G’s” house

to get guns, then followed Mr. Carter to the scene of the crime. Appellant exited his car and

went over the hill where multiple gunshots were heard, placing himself in the vicinity of the

crime. The victim was seemingly unarmed. In addition, immediately after the murder,

Appellant got into his car with several other men and rode back to “Mr. G’s,” where he

bragged about the killing, saying that he was responsible for one of them being “dropped.”

This showed calmness immediately after the shooting. The gun used to commit the crime was

not located. “Mr. G” claimed that he gave the “hot” assault rifle to Mr. Carter’s father. Also,

Appellant’s fingerprints were also found on the Expedition near the gunshot residue primer.

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As stated above, the trier of fact determines the credibility of the witnesses, any issues

of fact, and the weight to be given the evidence presented at trial. Pruett, 788 S.W.2d at 561.

The jury clearly found that Appellant acted both intentionally and with premeditation when

the victim was shot and discredited Appellant’s alibi testimony. We conclude that when the

evidence is viewed in a manner that favors the State, there is sufficient evidence to support

the jury’s verdict with regard to the first degree murder conviction.

Admission of Bullet Testimony

Next, Appellant insists that the State failed to establish a proper chain of custody and

that the trial court erred in admitting testimony about the bullet found during the autopsy of

the victim. Specifically, Appellant argues that the bullet was not properly authenticated

under Tennessee Rule of Evidence 901(a) and, as such, the State should not have been

allowed to suggest that this was the bullet that killed the victim. The State argues that

Appellant waived the issue for failure to present it in a motion for new trial. In the

alternative, the State contends that the bullet was not tangible evidence and was not admitted

as an exhibit and, therefore, there was no requirement that the bullet be properly

authenticated by the State.

At the outset, we note that contrary to the State’s assertion, Appellant properly raised

this issue in an amended motion for new trial. Specifically, Appellant argued that “[t]he trial

court erred in failing to suppress evidence regarding the finding of a bullet and in excluding

it from evidence.” Additionally, Appellant stated in his motion that the trial court “erred in

allowing witness Goolsby to testify RE: when, where, and how the bullet fragment was

recovered in the autopsy room.”

Prior to trial, Appellant sought to exclude the introduction into evidence of a .223

caliber bullet found during the autopsy of the victim. The trial court reserved ruling on the

matter. At trial, Appellant objected to the testimony of Dr. Goolsby about the bullet.

Appellant claimed the testimony was hearsay because Dr. Goolsby was not there when the

bullet was found and was going to reference a postmortem examination worksheet that was

prepared by someone else, Marie McGee, during her testimony about the cause of death. The

trial court determined that while the statement was hearsay, it was an exception under

Tennessee Rule of Evidence 803(6), records of regularly conducted activity. Further, the trial

court noted that Ms. McGee was available to testify and did ultimately testify.

During the testimony of Dr. Goolsby, a picture of the bullet found during the autopsy

was entered into evidence for identification purposes. The bullet itself was never admitted

into evidence. Dr. Goolsby identified the picture as a picture of the .223 bullet “recovered

in the autopsy morgue at about the time that the decedent’s clothing was being processed by

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the autopsy tech.” Specifically, Dr. Goolsby read the following entry in the notes from the

autopsy that described the bullet as: “deformed, small-caliber, copper-jacketed, lead bullet.”

Later on in the notes was this statement: “[t]his bullet was discovered on the floor in the

morgue in the area below the body cart where this decedent’s clothing was removed from a

separate plastic bag to be laid out on a sheet and photographed. It is uncertain which item

of clothing contained this bullet.” Dr. Goolsby testified that she was unable to make a

determination as to whether this bullet killed the victim or from which piece of clothing the

bullet came.

Ms. McGee testified that the bullet in question was discovered during the autopsy of

the victim. She also explained the cleaning protocol with regard to the morgue. The policy

is that the floors are wiped, cleaned, and “squeeged” between every autopsy. In other words,

the bullet came from the victim’s clothing and was not left behind by another autopsy.

“[T]rial courts have broad discretion in determining the admissibility of evidence, and

their rulings will not be reversed absent an abuse of that discretion.” State v. McLeod, 937

S.W.2d 867, 871 (Tenn. 1996). Rule 901(a) of the Tennessee Rules of Evidence provides

that “[t]he requirement of authentication or identification as a condition precedent to

admissibility [of evidence] is satisfied by evidence sufficient to the court to support a finding

by the trier of fact that the matter in question is what its proponent claims.” The testimony

of a witness with knowledge “that a matter is what it is claimed to be” is sufficient. Tenn.

R. Evid. 901(b)(1). Once this foundation has been established, the “trier of fact then makes

the ultimate decision of whether the item is actually what it purports to be.” Neil P. Cohen

et al., Tennessee Law of Evidence § 9.01[2][a] (5th ed. 2005).

Additionally, as stated correctly by Appellant, before tangible evidence may be

introduced, the party offering the evidence must either call a witness who is able to identify

the evidence or must establish an unbroken chain of custody. State v. Holloman, 835 S.W.2d

42, 46 (Tenn. Crim. App. 1992).

In the case herein, the bullet at issue was never actually entered into evidence. In fact,

Appellant concedes this in his brief. Therefore, the bullet itself is not tangible evidence, as

argued by Appellant, and there was no need for authentication. State v. Scott, 33 S.W.3d

746, 760 (Tenn. 2000).

Appellant also complains that the trial court improperly admitted testimony about the

bullet. While Appellant challenges the admission of this testimony and claims that the State

insisted that this was the bullet that killed the victim, he does not provide legal argument,

with the exception to his challenge to the chain of custody, to support his assertions.

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Initially, we note that the admissibility of evidence is generally within the broad

discretion of the trial court. Absent an abuse of that discretion, the trial court’s decision will

not be reversed. State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). The rules of evidence

provide that “[h]earsay is not admissible except as provided by these rules or otherwise by

law.” Tenn. R. Evid. 802. Under Rule 803(6) of the Tennessee Rules of Evidence, a “data

compilation” is admissible hearsay if it is made by a person with knowledge and a business

duty to record the information. Tenn. R. Evid. 803(6). The statement must be written at or

near the time the information was encountered, and it must occur as part of a “regularly

conducted business activity.” Id. This foundation must be laid by a “custodian or other

qualified witness.” Id.

In the case herein, after hearing testimony from Dr. Goolsby outside the presence of

the jury, the trial court determined the following:

[T]he statement by the doctor that “This bullet was discovered on the floor in

the morgue in the area below the body cart where the decedent’s clothing was

removed from a separate plastic bag to be laid out on a sheet and

photographed. It is uncertain which item of clothing contained this bullet,”

that statement itself is a record of regularly conducted activity.

There is hearsay, though, within that statement, which is that this tech

told her that the tech - - the tech told the doctor that the tech discovered the

bullet and then the doctor made the note about what she was told from the

tech. That’s hearsay within hearsay under rule 805, . . . .

And the hearsay rule itself does say that “a report of a condition from

information transmitted by a person,” so if this tech is the person who

transmitted the information to the doctor and the doctor makes the report, that

falls within the hearsay exception of 803(6).

We conclude that Dr. Goolsby’s testimony about the report was admissible under Rule

803(6) of the Tennessee Rules of Evidence. The report was completed during the autopsy

and both Dr. Goolsby and Ms. McGee who actually assisted in the autopsy, testified not only

about the creation of the report but the discovery of the bullet. There was no error in the

admission of testimony concerning the discovery of the bullet in question.

Finally, the State did not, as argued by Appellant, claim that the bullet found during

the autopsy was the cause of the victim’s death. During closing arguments, the State urged

the jury to “use [their] common sense to determine whether . . . that was the bullet that

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actually killed [the victim].” The determination of whether that bullet was the one ultimately

responsible for the victim’s death was a matter left to the jury.

Appellant is not entitled to relief on this issue.

Denial of Motion for New Trial on the Basis of Newly Discovered Evidence

Lastly, Appellant claims that the trial court improperly denied the motion for new trial

after he presented newly discovered evidence in the form of an affidavit from Co-defendant

Eric Carter in which Mr. Carter completely exonerated Appellant in the crime. Appellant

claims that if this testimony were available at trial, the result would have been different. The

State insists that the trial court properly denied the motion for new trial.

In order to receive a new trial on the ground of newly discovered evidence, a

defendant must demonstrate: “(1) reasonable diligence in seeking the newly discovered

evidence; (2) materiality of the evidence;” and (3) the likelihood that the evidence would

change the outcome of the trial. State v. Nichols, 877 S.W.2d 722, 737 (Tenn. 1994) (citing

State v. Goswick, 656 S.W.2d 355, 358-60 (Tenn. 1983)). Additionally, the decision

regarding whether to grant or deny a motion for a new trial predicated on newly discovered

evidence “rests in the sound discretion of the trial court.” State v. Walker, 910 S.W.2d 381,

395 (Tenn. 1995). Moreover, the trial court is authorized to ascertain the “‘credibility of

newly discovered evidence for which the new trial is asked,’” and the motion should be

denied unless the court has assured itself that the testimony would be worthy of belief by the

jury. Id. (quoting Rosenthal v. State, 292 S.W.2d 1, 5 (Tenn. 1956)). When it appears that

the newly discovered evidence can have no other effect than to “discredit the testimony of

a witness at the original trial, contradict a witness’ statement or impeach a witness,” the trial

court should not order a new trial “unless the testimony of the witness who is sought to be

impeached was so important to the issue, and the evidence impeaching the witness was so

strong and convincing that a different result at trial would necessarily follow.” State v.

Rogers, 703 S.W.2d 166, 169 (Tenn. Crim. App. 1985).

After the conclusion of the trial, defense counsel met with Appellant at the jail.

Appellant advised defense counsel that Mr. Carter wanted to meet with counsel to tell the

truth about the homicide. Counsel continued the hearing on the motion for new trial in order

to meet with Mr. Carter. Defense counsel drafted an affidavit after the meeting. In the

affidavit, Mr. Carter claimed that Appellant had nothing to do with the crime. In fact, Mr.

Carter claimed that there was a conspiracy between Mr. Haden, Mr. Branham, and Mr. Carter

to implicate Appellant as the sole perpetrator of the crime. Mr. Carter did not testify at the

hearing. After the hearing on the motion for new trial, the trial court noted that Mr. Carter

had essentially made four different statements over the course of three years with regard to

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the facts and circumstances of the crime. The trial court determined that Mr. Carter’s

testimony was “suspect at best and lacks any credibility at worst” because it contradicted

what Mr. Carter had subsequently alleged as the factual basis in his petition for post-

conviction relief.

The trial court, as stated previously, is in the best position to judge the credibility of

the witnesses, and this Court must defer to the trial court’s credibility determinations on

appeal. Odom, 928 S.W.2d at 23. Thus, the trial court did not abuse its discretion in denying

the motion for new trial on the basis of newly discovered evidence. Appellant is not entitled

to relief on this issue.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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