State of Tennessee v. Reginald Rome

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2007

STATE OF TENNESSEE v. REGINALD ROME

Appeal from the Criminal Court for Shelby County

No. 03-01497 Joseph B. Dailey, Judge

No. W2006-00838-CCA-R3-CD - Filed June 5, 2008

The defendant, Reginald Rome, was convicted by a Shelby County Criminal Court Jury of first

degree murder and of five counts of attempted first degree murder, Class A felonies. The defendant

is serving sentences of life without parole for the first degree murder and twenty years for each of

the five attempted first degree murder convictions. The sentences were imposed consecutively, for

an effective sentence of life without parole plus 100 years. In this direct appeal, the defendant

contends (1) that the evidence is insufficient to convict him of first degree murder, (2) that the trial

court erred in admitting the testimony of a nurse about a bullet recovered from the victim at the

hospital, (3) that the trial court erred in allowing admission of insufficient evidence about the chain

of custody of the bullet recovered at the hospital, (4) that the prosecution withheld information about

a technical failure in videotaping the deposition of an unavailable witness, (5) that the trial court

erred in ruling that the defendant could not introduce evidence from the deposition of a non-

testifying state’s expert and then call its own expert to refute that proof, and (6) that the trial court

erred in its jury instructions. Upon consideration of the defendant’s issues, we hold that no error has

been shown, and we affirm the trial court’s judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT

W. WEDEMEYER , JJ., joined.

Coleman W. Garrett, Memphis, Tennessee, and Paul J. Springer, Memphis, Tennessee (at trial), for

the appellant, Reginald Rome.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;

William L. Gibbons, District Attorney General; and J. Robert Carter, Jr. and Valerie Smith, Assistant

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

OPINION

Jessica Selby testified that she was married to Greg Selby, the deceased victim, who was a

Shelby County Deputy Sheriff. She said the victim worked the shift from 3:00 p.m. until 11:00 p.m.

in December 2002. She recalled that on the day of his death, the victim babysat one of their two

children while she was at work and prepared dinner for the family before he left for work.

Detective William Speight testified that he was employed by the Shelby County Sheriff’s

Office and was assigned to the narcotics division on December 4, 2002. He was part of the team of

officers that went to the defendant’s home that evening to execute a search warrant. He said that he

had obtained the warrant on December 3 and that a team of twelve officers met on December 4 to

plan their execution of it. He said that they went to the defendant’s house about 5:30 or 6:00 p.m.

and that it was dark outside. He and the other officers were wearing “raid gear,” which included a

ballistics vest, a helmet with goggles, and a holster for their guns. He said the gear and their clothing

contained markings identifying them as law enforcement officers. The victim was on the entry team

meaning he would be the first officer inside the residence.

Detective Speight testified that he did not hear evidence of people inside the house when he

first approached it but that there was a porch light on and a light in the living room. He said after

the officers had positioned themselves at the defendant’s house, he banged on an iron door at the

front entry twice with a heavy metal pick and announced, “Sheriff’s office, search warrant.” He

repeated this procedure a second time. He said he allowed more than enough time for someone to

answer the door and that when no one did, he checked the door and found it locked. He and

Detective Jones used a pick and ram to pry open the iron door, and Detective Jones forcefully

rammed the wooden door and cracked it open four to six inches after one blow. He said he heard

a gunshot come from the house, which struck the victim, who was on his way up the porch. He said

the victim fell off the porch. He said he ran down the porch and positioned himself behind a window

unit air conditioner beside the door and returned fire into the house through a window. He said that

he shot into the house in the direction where he thought the shooter was. He said that he knocked

the glass out of the window in order to see inside the house and that he could see a person lying on

the living room floor. He said that this person was Calvin Williams, who was unarmed. He said that

the shots from inside the house stopped but that he heard a detective who was not at the front door

firing a shotgun. He said Detective Chambers sent a police dog inside to get Williams out. He said

that they learned from Williams that someone else was inside the house and that the police dog went

back inside the house and retrieved the defendant. He said that after the defendant told them no one

else was inside the house, he and his partner, Detective Feathers, entered and found a silver revolver

in the hallway.

On cross-examination, Detective Speight admitted that he had not received any formal

training about executing search warrants when he joined the narcotics division in October 1998. He

said he had learned on the job that the law required a “knock and announce” procedure before

entering a home. He said he had never been given any formal instruction regarding a specific length

of time after knocking and announcing before forcibly entering a home. He said the narcotics team

did not attempt to surprise people, but he admitted they used a large number of people to protect the

evidence they were attempting to seize and to ensure the safety of the officers. He denied having

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seen the doorknob missing on the wooden door, any damage to the door, or that the door frame was

missing. He acknowledged a “barrage of bullets” and having heard the shotguns being fired but said

he did not know how many shots the officers fired at the defendant’s house.

Detective Speight testified that there was not a specific period of time to wait before entering

a house after the knock and announce procedure. He said the time varied according to how long it

would take an occupant to get to the door based upon the size of the house and any information

known about specific dangers that existed at that residence. He said that he had information about

the defendant having been in possession of a sawed-off shotgun in the past and that this information

played into the decision of how long to wait before attempting to enter the defendant’s house. He

said they waited long enough for a person to get from the back of the defendant’s house to the door.

Lieutenant Alvin Moore of the Shelby County Sheriff’s Department testified that he was

involved in the investigation of the defendant. He said he requested a trace through the federal

Alcohol, Tobacco, and Firearms database of a Colt King Cobra .357. He learned through the

database information that the weapon had been purchased by Willie Collins. He spoke with Mr.

Collins, who was registered in the database as being a California resident, but who had moved to

Shelby County.

Calvin Williams testified that he was living temporarily with his brother-in-law, the

defendant, in December 2002. He said that on December 4 at about 5:30 or 6:00 p.m., he was lying

on the living room couch drinking a beer about to go to sleep, having just eaten dinner. He said it

was not dark yet. He said that a couple of minutes before the police came, a person named Roderick

had come by. He said that the defendant had answered the door for Roderick and that he had been

cooking dinner at the time. He described the home as a four-bedroom house. He said the defendant

used the master bedroom, which was in the back corner. He said that after dinner while he was on

the couch, the defendant was in his bedroom. He said that the living room television was turned on

and that he thought the defendant’s bedroom television was turned on, as well.

Mr. Williams testified that he heard some noise and thought that Roderick had returned and

was “playing on the door.” He said he heard the door coming open, a “boom,” and hollering “Police,

sheriff, put your hands up, don’t move.” He also heard them say, “Search warrant.” He said, “I

didn’t know what he was talking about because the house had just been previously burglarized.” He

said he was scared because he did not know whether the person who committed a burglary the day

before had returned. He also said he was not paying attention to what they were saying because he

was trying to see what they were pointing at him. He said that he lay on the floor and saw the

defendant come down the hall with his gun. He said he could see that the people outside were police

officers and could see a gun pointed at him. He yelled at the defendant that the police were there and

not to shoot because they were aiming a gun at him. He said the defendant reached around a corner

and shot. He said the first shots were fired from the hallway inside the house and then shots came

from outside, “[a]ll over the house.”

Mr. Williams testified that he did not open the door before the shooting started because it was

already opening. He could not say whether there was banging on the metal door before that because

he was not paying attention and was “nodding out.” He later said he heard a loud noise that he could

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not identify but that it was not a knock. He said that it was chaotic and that he could see the police

entering the house.

Mr. Williams testified that he and the defendant had been away from home the previous day

and that when they returned, the front door had been kicked in, the house ransacked, and household

items stolen. He said there was an iron door with a glass insert and a wooden door at the front

entrance. He described the iron and wood doors as “cracked open” and the wood door as “kicked

off the hinges almost.” He said the items taken included televisions, vacuum cleaners, and VCRs.

He said they called the police that morning to report the burglary. He admitted that he had told the

police that there was also some marijuana stolen from the house and that the defendant had been

selling marijuana after being laid off from a welding job. He said that after the December 3 break-in,

they locked the storm door and put a latch on the wood until the doorknob could be fixed.

Mr. Williams testified that he did not know whether there was marijuana or cocaine in the

house on December 4. He said he knew there was a glass cooking tube that was used for cocaine

in a storage area.

Willie Collins testified that he had lived in Bartlett for about twelve years and had lived in

California before that. He said he owned a .357 Magnum Colt King Cobra which he discovered

missing in December 2002 when he searched for it after receiving a call from the police. He said

he later learned that his son, Brandon Collins, had taken the gun.

Brandon Collins testified that he had taken a gun from his father’s house in the summer of

2002. He said he took it to his mother’s house, which was three streets away from the defendant’s

street. He said that he did not tell either of his parents that he had taken the gun and that he gave it

to Jonathan Upchurch.

Jonathan Upchurch testified that he lived one street from the defendant’s street in 2002. He

said his friend Brandon Collins gave him a gun, which he sold to “a guy named Rome.” He

identified the gun as one of the courtroom exhibits and the purchaser as the defendant. He said he

did not know the defendant before selling him the gun and had heard through his uncle that the

defendant was looking for a gun. He said that he and his uncle went to the defendant’s house and

that he sold the defendant the gun for eighty dollars. He said the sale was about five months before

the crime on trial took place.

Phil Drewery testified that he was a retired Shelby County Sheriff’s Department lieutenant.

He said that he was a detective in December 2002 and that he investigated the crime scene. He said

he made drawings and photographs of the scene and collected evidence. He said that two separate

investigations were made of the scene relative to the homicide and narcotics and that his involvement

was with the homicide investigation. He said that there were numerous bullet holes throughout the

house and that he determined that the holes corresponded with fifteen forty-caliber bullets and three

rounds of double aught buckshot having been fired. He said a revolver was on the hallway floor.

He said that ammunition was in the closet of the master bedroom, including a box of CCI .357

Magnum live rounds with seven rounds missing and a box of Blazer CCI .357 Magnum live rounds

with twenty-four rounds missing. He said that in one of the bedrooms, there was a trail of blood

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droplets leading into the bedroom, to the window, and back to the hallway. He said there were holes

and blood stains on the curtains in this bedroom. He said the window in that room faced the front

yard. He said there was evidence of a shotgun round having been fired in through this window. He

said that bullet holes in the front door indicated that a projectile had gone through the door and into

and out of a wall onto the porch area while the door was “wide open” and that another one had been

fired while the door was closed. He said that at least three rounds were fired from inside the home

through the front door. He described the scene as a video of it was played for the jury. He said that

from the outside of the house, he recovered eleven Winchester forty caliber spent shell casings and

three spent and one live Winchester twelve gauge double aught shotgun shells. He said this

ammunition was consistent with that used by the Sheriff’s Department. He said that due to the

height of the grass, the condition of the ground, and the traffic of officers and emergency personnel

in the yard, it was possible that not all the ammunition was recovered from the yard. He said he was

able to account for about twenty-one rounds fired on the scene. He said there were some shell

casings on the front porch but that most of them were down the driveway from the porch to the

street. He was not able to determine whether shots had been fired out the front window, but he did

determine that shots were fired in through the window. He used a diagram to describe specific

locations where the ammunition and other evidence was recovered outside the house. He said that

the photographs of the iron door showed damage to a deadbolt lock and a missing doorknob on the

outside with the doorknob intact on the inside. He said the locking mechanism was missing from

the wood door. He said that based upon the position of the doors when he was at the scene, the doors

must have been open at some point during the shooting based upon the positioning of bullet holes

in the wood door and the fact that the glass was intact in the iron door. He said the door had been

forced open at some point before his inspection of the scene because there was damage to the door

frame and wall. He said he did not see any marks on the wood door that were consistent with having

been struck with a ram.

Officer Samuel Jones of the Shelby County Sheriff’s Department testified that he was

assigned to the narcotics division in December 2002. He said he was the “ram man” on the search

warrant team that went to the defendant’s house. He was wearing apparel with Sheriff’s Department

markings as well as body armor, under armor, raid vest, helmet, and goggles. He said that he went

to the front of the house with Detectives Speight and Selby and that Speight “knocked and

announced” by hitting the iron door with the pick and that he “announced,” as well. He said Speight

was “beating on the door” loudly and that other officers were yelling, “Sheriff’s office - sheriff’s

office.” He said that after a “reasonable amount of time,” Speight stuck a pick into the seam of the

iron door and that he hit the pick twice with the ram. He said they were able to open that door. He

said that he hit the wood door with the ram and that it opened about half way. He did not see a chain

on the door. He identified a place on the doorknob where he had struck the wooden door with the

ram. He said he stepped aside for Detective Selby, who was holding a shotgun, to go inside. He

heard a gunshot and saw Selby start to fall back. He said the door opened and the gunshot was

“[m]aybe a second” or “a couple of seconds” later. He said that he shot inside the house and that he

could see a chrome pistol but not the person holding it inside the house. He heard someone say,

“Get George - Get George,” referring to Selby. He said he fell off the porch as he tried to drag Selby

to safety.

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Officer Jones testified that it was dark when they arrived at the defendant’s house. He said

there was a car in the driveway. He did not recall whether lights were illuminated. He said the

narcotics division’s policy was that once forced entry was begun, they would continue even if they

heard someone coming to the door.

Brad Taylor testified that he was a nurse on duty at Regional Medical Center of Memphis

when the victim arrived on December 4, 2002. He said that in the course of treatment, which

included removing clothing, he found a bullet in between the victim’s skin and his vest, which was

placed in a cup and labeled with the victim’s identifying information and given to the liaison officer,

Norman Benjamin.

Officer Norman Benjamin of the Memphis Police Department testified that he was assigned

to Regional Medical Center on December 4, 2002. He said that he went to the emergency room

when he heard an injured officer was being transported and that he stood outside the treatment room

door to prevent other officers from going inside. He said Nurse Taylor gave him a bullet in a clear

container that had been collected as evidence. He gave the evidence to Detectives Roberts and

Galloway, who were arriving as he received it from Nurse Taylor.

Detective B.G. Roberts of the Shelby County Sheriff’s Department testified that he and

Detective Denford Galloway went to the hospital on December 4, 2002, to investigate the homicide

of Detective Selby. He said that they received the bullet and Selby’s clothing and that Detective

Galloway initialed the cup which held the bullet. He identified the cup and bullet in evidence as the

same ones he received that night. He said he brought the evidence to his office and turned it over

to Sergeant White.

Roger Carpenter testified that he was a former reserve officer of the Shelby County Sheriff’s

Department and was on the narcotics team on December 4, 2002, when they went to the defendant’s

house to execute a search warrant. He was assigned to watch the carport door to make sure no one

used it to escape from the house. He said he was making his way to the carport when he encountered

a dog. He heard deputies yelling “Sheriff’s Department Narcotics - Sheriff’s Department Narcotics,”

and he heard banging on a door. He heard three gunshots and someone saying, “Purple down,”

which referred to an officer being shot. He heard people shouting to get Detective Selby to safety

and saw officers shooting into the front door. He heard someone say, “Shoot the window out,” but

could not see a target inside the window. He said a loud gunshot went off behind him and the

window broke. He returned to the carport to stay out of the line of fire. After the gunfire stopped,

he went inside and “cleared” the house.

Mr. Carpenter testified that he received instruction at the training academy on “how to clear

and search a house.” He said this information was not specific to search warrant execution. He said

the operations plan in the present case included getting all the officers into place secretively before

alerting any occupants of the house to their presence. He said they parked down the street and

attempted to get into position, although he was not sure they had been successful in executing the

plan. He said the only officer he specifically recalled having seen shooting was Detective Feathers,

whom he said was shooting a shotgun at the window while standing in front of the door.

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Officer Chauncy Walton of the Shelby County Sheriff’s Department testified that he was

presently employed by the department and had been a reserve officer with the narcotics unit in

December 2002. He participated in the search warrant briefing and execution at the defendant’s

house. He was assigned to cover the carport door and back of the house along with Roger Carpenter

and George Stauffer. He wore his raid vest with departmental insignia on it. He said there were

twelve officers, a police dog, and four police vehicles on the scene to execute the warrant. He was

making his way to his assigned position when a Rottweiler dog who was not restrained and was

barking at the officers came out of the carport. He said that he focused on the dog and that as he got

closer to Officers Carpenter and Stauffer, the dog turned and ran to the back of the house. He said

he was still in the driveway and heard the “knocking and announcing” and “a loud boom.” He said

that he first heard knocking and announcing as he was closing the doors to the van and that he heard

the boom around the time the dog was running away. He said the amount of time that elapsed was

adequate for someone to answer the door given the size of the house. He said he heard someone say,

“He’s got a gun. Get some cover,” and he heard officers returning fire. He said that he checked the

back of the house and determined that there was no way for someone to escape and then took cover

in the carport. He said that he heard more gunfire but that he did not shoot his weapon. He said they

sent the police dog inside the house to retrieve the occupants. He attempted to call for help for

Detective Selby but had poor radio reception.

Officer Walton testified that he had received academy training regarding building searches.

He said he had received on-the-job training that was specific to execution of search warrants.

Officer George Stauffer of the Shelby County Sheriff’s Department testified that he

participated in executing the search warrant at the defendant’s house on December 4, 2002. He had

been assigned to open and close the side doors of the police van and to watch the carport door in the

operations briefing, and he had been told the defendant had a gun conviction. He said that it was

dark outside when they arrived but that the street lights were illuminated. He said lights were also

on inside the house. He said he could hear officers banging on the iron door and announcing,

“Sheriff’s Narcotics,” repeatedly as he closed the van doors. He started toward the carport but

stopped when a barking and growling Rottweiler came toward him. He said that he may have yelled

at the dog and that the dog ran away. He went to the far corner of the porch by the carport and heard

one of the officers say, “Let’s do this.” He said the other officers on the porch used the ram and pick

to open the iron door. He heard a boom, which he identified as the ram hitting the wood door. He

heard another boom “seconds later” and saw Officer Selby fall backwards. He said, “[a] lot of shots

started.” He ran around the house to make sure no one was coming out the back windows and then

returned to the front.

Officer Stauffer testified that he had known the victim since high school and that he brought

him blankets from the defendant’s house after it was cleared. He said the victim said that he could

not feel his legs, that he was cold, and that he was going to die. He said the victim asked what he

was going to do about his girls. He rode to the hospital in an ambulance with the victim. He said

the emergency personnel opened the victim’s vest in order to cut off his shirt to attach medical

equipment.

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Officer Stauffer testified that he could not say exactly how much time elapsed from the time

he first heard the other officers knocking and announcing and when they used the pick and ram, but

he said, “[I]t seemed like forever.” He said he had time to leave the van door, go across the yard,

deal with the dog, warn the others about the dog, check the carport, and come out of the carport and

get into position.

Officer Stauffer testified that he received hands-on training when first assigned to the

narcotics division in 1997 by being paired with an experienced officer. He said they sometimes

practiced by staging mock search warrant executions at abandoned houses. He said it was not

atypical for the knock and announce to begin before all officers were in position.

Captain Phillip Barnett of the Shelby County Sheriff’s Department testified that he was on

the narcotics team on December 4, 2002, and participated in executing the search warrant at the

defendant’s house. He was in charge of the evening shift that night. He said Detective Speight, as

the case officer, prepared an operations plan which was approved by Sergeant Nelson. Captain

Barnett was on the scene to supervise the officers. He wore marked clothing and a bullet-proof vest

under his clothing but not the outer vest worn by the other officers. He said they parked out of view,

which was important for officer safety. He said that according to the operations plan, the victim was

designated as the first person who would go inside the house. He saw the officers go straight to the

house from the van and get into position. From his position on the street, he heard Speight knocking

and saying, “Sheriff’s Office Narcotics.” He said the officers waited long enough for someone

inside the house to answer the door. He heard the sounds of the officers forcing the door open and

a shot. He turned and saw Detective Selby fall back from where he was standing on the front porch.

He ran to assist Selby as other officers returned fire. He said that as he was trying to pull Selby to

safety, he fell in front of the front window. He said that when he first reached to grab Selby, he

heard gunfire and thought he “felt the pressure of the bullet, and heard the sound coming right past

my head” from the window area. He heard someone say the shooter was in the window. Officer

Hubbard came and helped him move Selby to the west side of the yard. Sergeant Nelson came to

help with Selby. Captain Barnett said that he told Nelson to remove Selby’s vest to see the location

of the entry wound and that he went back to the corner of the house. He could see a person lying on

the living room floor inside the house. They decided to send the police dog inside. The dog brought

the person out and then returned to the house and brought out the defendant. He said that after the

police dog was taken from the scene by an officer, he approached the defendant, who said he had

been shot.

Captain Barnett testified that when the dog brought the defendant out of the house, Officer

Chambers got the dog promptly. He denied that the defendant and Calvin Williams were taken out

of the police cars later in order for the dog to attack them. He said that if this had been attempted,

he would have stopped it.

Captain Barnett testified that the amount of time before beginning forced entry varied in

search warrant execution and that the officers waited a reasonable time based upon the circumstances

of the case. He said that ideally, someone would answer the door and allow them to come inside.

He said, however, that factors which might affect the amount of wait time included the size of the

house and whether they have information that weapons are involved. He said that the situation is

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safer for the officers and citizens if forced entry were not used. He said there would be a danger in

waiting too long to force entry because someone inside the home may destroy evidence or get a

weapon.

Robert Rivera testified that he was a reserve officer with the Shelby County Sheriff’s

Department on December 4, 2002, and that he was part of the entry team executing the search

warrant at the defendant’s house. He said that when the entry team reached the front porch,

Detective Speight knocked loudly on the door with the pick. He said Detectives Speight and Jones

announced “Sheriff’s Department” repeatedly. He said there were several knocks and numerous

announcements. When they received no response, the pick was used to open the iron door, followed

by the ram being used to open the wood door. He said that right after Detective Jones opened the

wood door with the ram, shots were fired from inside the house. He said Detective Selby was hit

by the first bullet and “went backwards.” He said he saw someone with a gun behind a wall and

returned fire. He did not recall whether the person had a shotgun or a handgun. He identified the

defendant as the person with the gun. He said that as other officers removed Selby from the porch,

he covered for them to try to keep them from being shot.

Mr. Rivera testified that he did not recall how many times the door was rammed before it

opened. He said that typically, the officer with the ram tried to hit the doorknob with the ram. He

said the door was wide open after the ram was used but he did not see anyone lying on the floor. He

denied any knowledge of the police dog being allowed to attack the defendant and Calvin Williams

while they were handcuffed.

Lieutenant Richard Nelson of the Shelby County Sheriff’s Department narcotics division

testified that on December 4, 2002, he was the sergeant assigned to review the operations plan for

the execution of the search warrant at the defendant’s house. He went to the scene and stood to the

side with Lieutenant Barnett. He was assigned to secure the rear of the house. He said he did not

recall hearing the knock at the door, which he said he would not have been able to hear from where

he was, but he said he did hear “Sheriff’s Department Narcotics - Sheriff’s Department Narcotics.”

He said there was a shot and “a short body of gunfire.” He said he was familiar with the sound of

the officers’ weapons and recognized the sound of the first shot as being different from that made

by weapons issued by the Sheriff’s Department. He ran to the back corner of the house to make sure

no one was escaping from inside then went to attend the victim. He said the victim was complaining

of difficulty breathing. He had another officer retrieve a first aid kit. He said he cut the victim’s

shirt open and found a bullet hole under the victim’s right nipple. He plugged the hole with a

bandage and monitored the victim’s pulse. He said the victim asked to see his children and asked

Lieutenant Nelson to keep him alive.

Detective Dirk Beasley of the Shelby County Sheriff’s Department testified that on

December 4, 2002, he was on the first shift search warrant team of the narcotics division and was

called to work during the evening shift. He responded to the defendant’s house and was assigned

to do the narcotics investigation after the homicide investigation was completed. He was sent home

until the homicide investigation was completed and returned the following day to conduct the

narcotics investigation. At that point, he executed the search warrant inside the house. He said that

in the living area of the house, the search team found identification and paperwork belonging to the

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defendant, four sets of hand scales of the type commonly used by marijuana dealers, a gallon bag

with residue inside that smelled like marijuana, a bowl containing marijuana “roaches,” a razor blade

with residue which field tested positive to be cocaine, a pack of 1.5 rolling papers, and a prescription

bottle bearing the defendant’s name and containing a plastic bag with what appeared to be a drug

cutting agent inside. He said they recovered from a car in the driveway that was registered to the

defendant’s wife a small set of scales, a razor blade, a set of digital scales, and white powder that

field tested positive to be cocaine. He said that from a storage area, they recovered two glass crack

cooking tubes containing residue that field tested positive to be cocaine, two bottles of substances

commonly used to “cut” cocaine, paper that was cut and folded in a manner commonly used to hold

drugs in powder form, and a box for digital scales which was of the same brand of scales as those

found in the car. In the attic of the house, they found an empty, operating refrigerator. He said it

was not unusual for drugs to be kept inside a refrigerator to keep out rodents. He said it was unusual

that this refrigerator was plugged in and running because the attic was not a walk-up type attic and

required a person to push aside a board and stand on a chair to get into the attic.

Diana Parmenter of the Tennessee Bureau of Investigation testified as an expert witness in

forensic chemistry. She tested the items submitted from the search warrant. She said that the

powder inside the prescription bottle did not contain any controlled substances but that one of the

glass tubes contained cocaine and the substance from the plastic bag was marijuana. She did not test

the residue in the second glass tube.

Sergeant Brock Owens of the Memphis Police Department testified that he was assigned to

uniform patrol on December 3, 2002, and that he responded to a call at the defendant’s house around

8:00 or 8:30 a.m. He said that the defendant and a friend were present and that the defendant filed

a burglary complaint and reported two RCA Zenith televisions and a Sony camcorder as missing.

He said he saw no sign of forced entry into the house. He said that he went to the front door when

he arrived and that he did not see any damage, although he later conceded he could not be sure the

wood door’s lock was intact. He said the molding around the door was intact. He said that when

he knocked on the door he waited an “average amount of time” and that someone answered the door.

He said the house had not been ransacked, although it was typical that a house would be ransacked

in a burglary. He said he walked through the house and went into the bedroom from which the items

had been taken. He said he thought he saw a television in the living room but was not positive. He

said he did not see any evidence which warranted having the crime scene unit process the scene. He

said that he saw some items in the house that he would not have expected to see after a burglary and

that he was suspicious whether a burglary had occurred based upon those items and the condition

of the house.

Officer Darren Feathers of the Shelby County Sheriff’s Department testified that he was on

the narcotics division search warrant team on December 4, 2002, and was involved in executing the

search warrant at the defendant’s house. He attended the briefing conducted by Detective Speight

and was assigned to be a “shotgun man,” as was Detective Selby. He said Selby was to be the first

officer in the house and he was to be the second. He said he was wearing his raid gear that night.

He said that the goal in beginning the execution process was to enter the scene without alerting

anyone of the police presence and then letting them know the police were there when the police were

ready. He said that Detective Speight knocked on the door and announced, “Sheriff’s Office,

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Narcotics,” and that Speight repeated this process a second time. He said they waited a “reasonable”

amount of time, that being enough time for someone within the house to come to the door, and then

Speight placed the pick in the door and Detective Jones hit it. He said that while Speight and Jones

were opening the door, the announcing continued. He said that Jones hit the doorknob of the wood

door with the ram and that as the door opened, a gunshot came from inside the house and Selby fell

to the ground. He said he shot into the house to give the other officers cover to move the victim.

He felt his arm go back but looked and did not see blood or his shirt torn and reloaded his shotgun.

He said he was later treated for a grazing wound. He said Lieutenant Barnett and Detective Hubbard

moved the victim to the side of the house. He said that as Barnett, Hubbard, and the victim reached

a front window, Hubbard looked at him and at the window and that Feathers shot through the

window because he thought there was a threat inside. He said there was another window beyond that

window at which he did not shoot because he did not believe there was a threat. He said the police

dog removed the defendant and another person from the house.

Detective Feathers testified that he did not see any damage to the wood door before Jones

struck it with the ram. He said he did not know whether the door’s lock was in place before it was

forced open. He said that just before Selby was shot, Selby was standing at the door with a shotgun

on his shoulder pointed at the door.

Sergeant Reginald Hubbard of the Shelby County Sheriff’s Department testified that he was

a detective in the narcotics division in December 2002 and participated in the search warrant

execution at the defendant’s house. He said he was the van driver and was on the entry team. He

said he was supposed to get in line with other officers on the entry team after securing the van. He

was going across the yard when he heard the knock and announce process. He said he heard

knocking three or four times. He said when he came across the yard, he saw one of the officers

holding the iron door and saw Jones ramming the wood door. He said that as Jones hit the door, a

shot hit Selby, who fell back. He went to aid the victim and drew his weapon and fired into the

house in the direction of gunshots he heard inside. He said that the door was open wide and that he

did not see anyone lying on the living room floor. He helped pull the victim to the side of the house.

He said that as he reached a window, he could see the curtains moving. He fired at the window and

yelled, “Cover the window.”

Sergeant Hubbard testified that the victim asked him for help and indicated his chest was

hurting. He retrieved a first aid kit from Sergeant Nelson’s car and called for help on his radio.

Officer Scott Chambers of the Shelby County Sheriff’s Department testified that he was

assigned to the dog squad and had a dog named Rex who did both apprehension and narcotics duties.

He said the dog scratched and barked when he detected drugs and did “bite work,” such as

apprehending a subject from a house. He said Rex responded to his verbal commands but not the

commands of others. He and Rex were at the defendant’s house the night the search warrant was

executed. He stood in the yard and watched the entry team. He saw them line up. He said they

began saying, “Search Warrant, Sheriff’s Office” before they reached the house and then approached

the door, knocked, and announced. He heard someone say, “Pick.” He saw light coming from

between the wood door and the house, shots come out the front door, and Detective Selby fall. He

-11-

said he squatted down and told Selby to stay down. He said Selby asked him to come help but that

he could not. He said that another officer reached Selby and attempted to move away and that he

moved toward the door to try to help suppress the gunfire coming at the officers. He said someone

shot out a window, sending glass in his direction. He said someone was shooting from inside the

house because the glass and curtains or blinds flew outside. He yelled for someone to shoot at the

window. He said that he saw Sergeant Barnett making unsuccessful attempts to call for help on two

radios and that he went to his truck, called for help on his radio, and returned to the front door with

Rex.

Officer Chambers testified that before he had gone to his truck, the officers were yelling for

the occupants of the house to come outside and were identifying themselves as the Sheriff’s office.

He said that when he returned with Rex, the officers were still trying to get the occupants to come

outside and that he gave Rex a command, “Stella,” which meant to go inside and find the threat. He

said Rex could physically drag a person across a room. He heard someone screaming and called for

Rex to come out. Rex returned with a person. He said he “[i]mmediately took the dog off” and sent

him back inside. He heard a commotion, screaming, and bumping from inside the house. He yelled

for the person to come outside, and the person said for him to get the dog off him. He said that the

person would not come out on his own and that he called for Rex to come out. He said that Rex

brought the defendant out and that he separated the dog from the defendant immediately. He sent

Rex inside the house a third time, but Rex did not find anyone else. He said that he put Rex into his

truck and that the officers checked the house to make sure there was no one else inside. He said he

did not get Rex out of the truck again.

Officer Chambers testified that Rex would bite a person to get hold of him and would drag

the person out of the house. He said Rex was trained to hold on to the person until he gave the dog

the command to release the person. He said, however, that Rex would not continuously bite and

attack a person while removing him from a house. He denied having ordered Rex to attack the

defendant after the defendant was outside.

Rachel Copeland testified that she was a nurse practitioner and that she obtained a blood

sample from the defendant. She took the sample to the Tennessee Bureau of Investigation.

Sergeant Scott Wright of the Shelby County Sheriff’s Department testified that he was

assigned to the detective division in December 2002. He received a call around 6:30 p.m. about an

officer having been shot at the defendant’s house. He went to the scene and learned that Selby and

the two occupants of the house had been taken to the hospital for treatment. While still on the scene,

he learned that Selby had died. He was the case officer for the homicide investigation, meaning he

directed other officers in performing the various investigative tasks. He said that they recovered a

gun containing six empty shell casings in the hallway of the defendant’s house and that there were

blood droplets on the floor of a bedroom. He learned that one of the officers had gone into the home

and taken some blankets and sheets for Selby before the investigation took place. He learned that

the defendant had received medical treatment for a gunshot wound to the left hand and dog bites.

He said that he received information that the bullet was still in the defendant’s hand and sent word

to the jail that if the defendant had the bullet removed, he would like to receive it, and that he did

not ever receive it.

-12-

Sergeant Wright testified that Calvin Williams was interviewed but was not charged in

connection with the events of December 4. He said that he took two statements from Williams on

December 6 and that Williams did not have any serious injuries, although he had some marks from

dog bites.

Colonious Davis testified that he was the medical records manager with Regional Medical

Center. He identified the medical records for the defendant’s December 4 treatment.

Chad Johnson of the Tennessee Bureau of Investigation testified as an expert witness in

DNA. He examined curtains that were submitted for testing and determined that some of them had

human blood on them. He later compared a blood standard identified as coming from the defendant

with the substance on curtains that were submitted and obtained a “100 percent match.” He said that

statistically, the odds that the blood on the curtains came from someone other than the defendant

exceeded the earth’s population.

Don Carmen of the Tennessee Bureau of Investigation testified as an expert witness in

forensic firearms identification. He examined the Colt King Cobra .357 magnum revolver that was

recovered from the defendant’s house and the bullet that was recovered at the hospital from the

victim’s clothing and determined that the bullet had been fired from the gun. He also determined

that the shell casings recovered from the gun were of the same type, manufacturer, and caliber as

unfired cartridges recovered from the master bedroom closet at the defendant’s house. He examined

the curtains submitted and determined that there was gunshot residue on them. He said that a

particular grouping of holes was indicative of a shotgun blast. He said he was not able to determine

in which direction ammunition had traveled through the curtains.

Cerdinia Braswell of the Tennessee Bureau of Investigation and formerly of the Shelby

County Medical Examiner’s office testified as an expert witness in blood spatter analysis. In her

previous employment with the medical examiner, she examined evidence at the defendant’s house.

She examined blood spatters in a bedroom, blood drips in the hallway, and blood drops on the

curtains in a second bedroom. She said the blood on the bottom of the curtains indicated that blood

had fallen from above onto the curtains. She said that it appeared someone had stood in contact with

the curtains for some time with the blood dripping down and that the pattern was consistent with

someone being shot in the left hand, coming into contact with the curtain, and dripping blood from

the wound onto the curtain. She said the blood spatter evidence was consistent with impact from

a gunshot wound. She said there was evidence in the hall of a castoff pattern, which was consistent

with someone bleeding and moving down the hall. She said there was also evidence of a transfer

pattern on a doorknob, indicating that something covered with blood had touched the doorknob, and

consistent with the pattern a bloody hand would make. She said there was a blood trail down the

hallway, to the bedroom window, and back out of the room.

Doctor O’Brian Cleary Smith testified as an expert witness in forensic pathology. As part

of his duties as medical examiner, he examined the scene with two additional members of his staff.

He also performed the autopsy of the victim and examined the victim’s clothing. He said the victim

died of a gunshot wound to the chest. He said the fatal bullet struck the front of the victim’s armpit

area, grazed his upper arm, went between the third and fourth ribs, severed the artery and the vein

-13-

underneath the third rib, entered the right lung, caused extensive bruising of the heart, entered the

spine at the sixth vertebra fragmenting bone and crushing the spinal cord, and exited the body. He

said the victim had external abrasions where the bullet had bounced off the body armor and hit the

skin. He said the findings relative to the victim’s clothing, including the body armor, correlated with

the autopsy findings. He said that based upon the appearance of the entrance wound, it was his

opinion that the bullet may have passed through an intermediate target before striking the victim.

Linda Simmons testified for the defendant that she lived next door to the defendant in

December 2002. She recalled that on the date in question, she was standing at her front door and

saw two or three unmarked trucks come to the area at around 6:00 p.m. and that three men in dark

clothes got out of the trucks and went around the house. She said she did not know whether the men

were police officers. She said she walked to a bedroom after closing her front door and that she

heard a screech that sounded like someone was trying to open the defendant’s metal door. She said

she heard a shot and then more shooting. She denied having heard the men say anything before the

screech and the shooting began. She said that she thought it was a driveby shooting, that she took

cover with her family, and that she told her daughter to call 9-1-1. She said that about three or four

minutes after the gunfire, she looked out a window and saw an officer bringing “Calvin” out of the

defendant’s house. She said that she saw someone taking photographs or filming outside that night

and that a day or two later, a police officer came to her house and asked if she knew who had been

taking photographs or video. She said the police went around the neighborhood asking what anyone

had seen.

Ms. Simmons testified that she suspected Calvin had stolen her dog. She also said she was

suspicious that Calvin had arranged the burglary of the defendant’s house on December 3, 2002.

Robert Johnson testified that he was a friend of the defendant and had been a co-worker of

his at Diamond Steel. He said the defendant was a welder and had been laid off shortly before the

crime. He said they were frequently laid off by their employer. He visited the defendant’s home the

evening before the crime and had seen that the front door had been “broken into.” He said both the

iron door and the wood door had been damaged and that the locks would not engage. He said they

were not secure. He said a portion of the door knob of the wood door had been ripped off the handle

and was no longer present. He said the defendant was going to work on getting the iron door fixed

or replaced the next day.

Jonathan Bozart testified that he lived on the defendant’s street and that he had been at home

on December 4, 2002. He said he saw a white SUV pull up and four or six men dressed in black get

out and go to the defendant’s house. He denied seeing any writing on the back of their vests. He

said he was in the carport. He said that the men had “semi weapons,” which he said were long guns

rather than handguns. He saw them go to the defendant’s door and thought they were going to break

into the house. He said that he saw them get past the iron door and that he could see light through

a crack in the wood door but that shots were fired before they got in through the wood door. He said

there was a shot fired from inside the house and then more shots, with a total of fifteen to thirty

shots. He saw one of the men on the front porch fall and some of the other men drag the fallen

person away. He said he heard screaming and someone yelling, “I give up,” and saw the dog bring

people out of the house individually. He said that the officer who handled the dog was standing by

-14-

the front door when the dog brought the defendant out and that the officer stomped the defendant

on the head a couple of times and told the dog to “get him.” He said that the defendant was later

handcuffed and placed face down in the yard and that the officers allowed the dog to attack him for

about five minutes. He said an officer came to his house and told him to go inside. He said that the

defendant was put in a car and that he later saw a Memphis Police car pull up and an officer get out,

pull the defendant out of the car, and hit the defendant a couple of times as other officers watched.

Mr. Bozart testified that when he saw the officer stomping the defendant as the dog brought

the defendant out of the house, he retrieved a camera and took pictures, which he said did not

develop properly. He said officers came to talk to him two days later and inquired what had

happened and whether he had a camera. He said he told the officers that “the lawyer already had the

camera.” He identified “the lawyer” as one of the defendant’s attorneys.

Mr. Bozart testified that he had been alone outside for about thirty minutes before the police

arrived. He denied having seen anyone knock on the defendant’s door shortly before the police

arrived. He said the men did not start yelling that they were police officers until after the shooting

started. He acknowledged that he did not call 9-1-1 despite the fact he first thought the men were

robbers.

Darnisha Simmons testified that she lived next door to the defendant in December 2002. She

said that on the night in question, she was in her room watching television and saw a van park

outside. She said it was there about ten minutes and that she heard “creeping noises” of people

walking. She looked outside and saw “[p]eople in black spread out in the yard with guns.” She said

she assumed the people were police officers, although she could not see writing on their vests. She

said that she moved away from the window and that she heard a shot followed by “a couple of more

shots.” She went to the hallway when she heard the first shot. She said she went to the door after

the shooting and was told by the police to get out of the doors and windows.

Jim Russell testified that he was the owner of Diamond Steel Corporation. He said the

defendant had been employed full-time as a welder from 1999 until 2002, at which time he was laid

off due to economic conditions in the industry. He said the defendant’s working environment would

have been “fairly noisy.” He said the defendant had participated in the company’s 401K program.

The defendant testified that he had lived in a home he owned on Chattering Lane for eight

years before the events on trial occurred. He said that the residence had been home to himself, his

wife, and his four children, but that he and his wife were separated on December 4 and that Calvin

Williams was living at the home with him. He said that he had completed vocational training to be

a welder and a tractor-trailer truck driver and that he had been employed for his adult life. He said

that he was laid off his job as a welder at Diamond Steel in August or September 2002 and that he

received unemployment benefits and withdrew money from his 401K account. He said that he had

an active bankruptcy petition filed in December 2002 and that he had paid into the Chapter 13 plan.

He acknowledged having used crack cocaine and marijuana but said he stopped in 1996 and was

enrolled in a rehabilitation program for about seven months. He admitted he had used marijuana in

2000. He said he sold crack cocaine for a short period of time in 1996 and had a drug conviction

from this time period. He admitted having “some personal weed” while living on Chattering Lane

-15-

and said he probably sold some of it to friends who were visiting, but he denied selling drugs from

the house.

The defendant testified that his house had been burglarized twice, in 2000 and in 2002. He

said that on December 3, 2002, the date of the second burglary, he and Calvin Williams left the

house at 5:20 or 5:30 a.m. He did not know whether the house was locked because Williams was

the last person out of the house. He said Williams did not have a key but could have locked the

wood door by turning the handle from the inside. He said the iron door did not have a knob on the

outside but had a deadbolt for which he had the only key. He said the iron door could be pried open

or opened with a screwdriver if the deadbolt were not engaged. He said that he and Williams

returned home an hour and a half to two hours later and that the front window and wood door were

wide open and the iron door was closed. He said the iron door looked like it had been pried and the

wood door was cracked at the doorknob. He said the latch on the wood door was on the floor in the

front room and the door frame was “busted.” He said the damage to the doorknob area of the wood

door that was evident on the door, which was a trial exhibit, was the same as how it appeared after

that morning. He said that a television was missing from the front room and that a television,

cologne, a camcorder, watch, and a ring were missing from the master bedroom. He said the master

bedroom door had been pried open and the bed was “totally tore up.” After calling his mother and

eliminating his brother-in-law as a suspect, he called 9-1-1. When an officer arrived, he showed the

officer the damage to the door and showed him the lock in the living room floor. He said that they

went into the kitchen and that the officer filled out a report of the missing items but that he did not

think the officer recorded everything he told him. He said he offered to show the officer the area in

the back of the house where most of the damage had been done but the officer declined. He said he

did not repair the doors that day and locked the iron door that evening. He said there was no reason

to lock the wood door because it would not hold.

The defendant testified that he owned a .357 weapon he purchased from a young man named

John Upchurch for $100. He said he found out about the weapon when the young man’s uncle went

around asking people if they wanted to buy a gun. He admitted knowing he was not allowed to have

a gun because of his prior drug conviction. He said that on December 4, he had .22, .38, .380, and

.357 caliber ammunition at his house.

The defendant testified that after dark on December 4, he was in the master bedroom after

dinner and Williams told him that someone was at the door. He said “Rob” came in the house for

two or three minutes and then left. He said that Rob was there because Rob owed him $50 and that

he loaned money to other people despite the fact he was unemployed. He went back to his room for

about thirty to forty minutes and watched television, and while he was in the bathroom, he heard a

“huge” bang. He said he asked Williams what the noise was and that Williams told him someone

was breaking into the house. He said Williams looked scared and was barely able to speak. He said

that he was scared because he thought the burglars from the previous day had returned and that he

ran to the dresser drawer and got a gun. He said he did not hear any other noises or commands after

the bang. He said he went toward the end of the hallway and heard the iron door hit the air-

conditioning unit, a sound with which he was familiar. He said he went to the end of the hallway,

saw that the wood door had come open, and fired a shot at the door. He said he did not know who

was behind the door and denied hearing the officers yelling they were with the Sheriff’s Department

-16-

and had a search warrant. He said that he heard a shot from outside and that he continued shooting

at the door until he had emptied his gun. He said that while he was shooting, he saw a curtain fly

open and determined that someone was firing through the window. He denied ever seeing the wood

door come open. He said that after he ran out of bullets, he was shot in the hand as he tried to look

around a wall to see whether the wood door had come open. He said he dropped the gun, fell to the

floor, and crawled to another room. He said he was trying to get to a cellular telephone to call the

police. He said that as soon as he opened the door, shots came through the window. He said that

he crawled into the room and that he may have bled on the curtains but that he never looked out the

window. He said he heard a police scanner and realized the people outside were police. He denied

that he would have shot had he realized the people were police officers.

The defendant testified that he crawled to the end of the hallway and yelled, “I give up,” and

that he heard an officer tell him to show his face. He said he stuck his head behind a wall and saw

a shotgun and handgun at the door. He said that they told him to lie flat on the floor against the wall

with his hands on his head and that he complied. He said that Williams was lying on the floor in the

living room and that Williams yelled, “I give up.” He said that the police told Williams to come out

first and that Williams was in the process of doing so when a dog came through the door and

attacked Williams. He said that the dog and Williams wrestled until Williams was outside, that the

officers took the dog off Williams immediately, and that a couple of the officers beat Williams. He

said an officer told him to crawl to the door and that he was doing so when the dog came in and

attacked him. He said he was too heavy for the dog to pull and that he pushed the dog out the door

while the dog was “clamped on” him. He said he got halfway out of the house and was kicked by

someone. He said that he kept yelling for them to get the dog off him but that the officers took their

time in doing so. He said that he complied with the directive to lie flat on the ground and that an

officer kicked him in the face and the bottom. He said that he was handcuffed and that an officer

allowed the dog to attack him again. He said he was placed in a police car and had his head bumped

in the process. He said that he was later removed from the police car and searched and that in the

process, an officer hit him in his testicles with a fist and another officer hit him across his head with

a pistol.

The defendant testified that he was taken by ambulance to the hospital. He said that on the

way, he asked the officers whether the officer whom he shot was okay and told them he did not

know who they were and thought a robber had returned. He said he was unaware of any drugs in

his house other than possibly some “roaches” that belonged to him. He denied that the 1.2 grams

of marijuana other than the roaches was his but admitted that the scales in the closet were his. He

said that he used the scales to “[w]eigh up some weed” but that it had been two or three months since

he had used them. He said the scales that were found in the car had been there for two or three

months. He said the car belonged to his wife and had transmission problems. He said the cooking

tubes had been in the storage area for two or three months.

The defendant identified the refrigerator that was found in the attic and said he had stored

it in the attic. He denied that it was plugged into the electricity.

A videotape of the scene was played during part of the defendant’s direct examination. The

defendant identified various items and locations which were relevant to the events in question. He

-17-

noted that the videotape depicted both the broken lock from the wood door and a glass of beer he

was drinking when the incident began were sitting on his bedroom dresser.

On cross-examination, the defendant acknowledged that there had been marijuana in a gallon

bag that was in his bedroom but claimed it had all been smoked before December 4. He admitted

that the drug paraphernalia with cocaine residue was his, but he denied he had used it since 1996.

He acknowledged that there was stereo equipment, two televisions, a handgun, and a VCR which

were not taken during the burglary. The defendant admitted that he had locks on his bedroom door

and closet door and that he was the only person with keys. He said he had locks on the doors to keep

visiting relatives from stealing from him. He said the televisions that were in the living room and

his bedroom on December 4 had been in his children’s bedrooms before the burglary on December

3. He admitted that he was taking care of his wife’s Rottweiler and that the dog would bark if

strangers came to the house but said the dog ran loose and may have been elsewhere during the

burglary. He denied that Williams ever told him not to shoot because the police were at the door.

The defendant said the police dog left bite marks on his arms but did not attack other parts of his

body. He said he cut the bullet out of his hand with a razor and flushed it in a toilet while he was

in jail.

The state recalled Detective Speight for rebuttal proof. Using the pick he had taken to the

defendant’s house on December 4, 2002, Detective Speight demonstrated the knock and announce

procedure he followed that night.

After receiving the evidence, the jury found the defendant guilty of first degree murder of

George Selby and guilty of attempted first degree murder of William Speight, Samuel Jones,

Reginald Hubbard, Darren Feathers, Scott Chambers, and Robert Rivera. The jury found the

defendant not guilty of any offense in the counts alleging attempted first degree murder of George

Stauffer, Roger Carpenter, Chauncey Walton, Phillip Barnett, and Richard Nelson.

The state and the defendant entered into a sentencing agreement which called for the

defendant to serve a sentence of life without parole for the first degree murder conviction. After a

sentencing hearing, he received twenty-year sentences for each of his five attempted first degree

murder convictions. Consecutive sentencing was imposed, for an effective sentence of life without

parole plus 100 years.

I

The defendant challenges the sufficiency of the evidence to support his first degree murder

conviction. Our standard of review when the sufficiency of the evidence is questioned on appeal 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, 99 S. Ct. 2781, 2789 (1979). This means that we do not reweigh the

evidence but presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d

542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding

-18-

witness credibility, conflicts in testimony, and the weight and value to be given to evidence were

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

As relevant here, first degree murder is an unlawful “premeditated and intentional killing of

another[.]” T.C.A. §§ 39-13-201; -202(a)(1).

“[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 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.

T.C.A. § 39-13-202(d). The presence of premeditation is a question for the jury and may be

established by proof of the circumstances surrounding the killing. State v. Bland, 958 S.W.2d 651,

660 (Tenn. 1997). Our supreme court has noted many factors tending to support the existence of

premeditation, including: “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, destruction or secretion of

evidence of the murder, and calmness immediately after the killing.” State v. Nichols, 24 S.W.3d

297, 302 (Tenn. 2000). Without sufficient evidence of premeditation, a homicide in Tennessee is

presumed to be second degree murder. State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992).

“‘Intentional’ means that a person acts intentionally with respect to . . . a result of the conduct when

it is the person’s conscious objective or desire to . . . cause the result.” T.C.A. § 39-11-106(a)(18).

In the light most favorable to the state, the evidence demonstrates that the defendant

purchased a weapon, despite the fact he was legally prohibited from owning one. Although he

denied that he was a drug dealer, he acknowledged that he sold “personal weed” to friends. He had

several items of drug paraphernalia and small quantities of drugs in his home, as well as a

refrigerator hidden in the attic, which was not unusual for drug dealers. There was evidence that

additional drugs had been stolen from the defendant the previous day. When the victim and his

fellow police officers went to the defendant’s residence, they announced their presence, identity, and

purpose. They did so loudly. The officers began forcibly entering the home, and the defendant

admitted he heard the sound of the iron door on the front entrance banging on the air conditioner.

The defendant armed himself and, despite the fact that Calvin Williams told the defendant that the

people outside were police officers and not to shoot, the defendant fired his gun at the front door

where the officers were entering, ultimately striking the victim. The victim fell after the first shot

was fired. The defendant continued to fire until he exhausted the ammunition in the gun, shooting

at the door and from a window in a bedroom. After receiving the evidence, a rational juror could

conclude that the defendant knew that the people outside were the police and that he chose a course

of hiding from a secure location behind a hallway wall and shooting at the door where the officers

were attempting to enter with the objective or desire of stopping them from entering, even at the cost

of taking human life. In evaluating the weight and credibility of the evidence, the jury was entitled

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to reject the defendant’s explanation that he did not know the people outside were police officers and

that he was scared a home invasion burglary was about to occur. The evidence sufficiently supports

the defendant’s first degree murder conviction.

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II

The defendant raises several interrelated issues regarding the admission and exclusion of

evidence. He claims that the trial court erred in admitting Nurse Brad Taylor’s testimony about the

bullet he recovered from the victim during medical treatment at the hospital, that the state did not

adequately establish a chain of custody of the fatal bullet, that the prosecution failed to reveal to the

defense that there had been a technical failure in video recording part of the deposition of Heath

Barker, and that the trial court erred in not allowing the defense to introduce evidence of Barker’s

deposition and to call a defense expert to contradict Barker. These issues are all raised under the

umbrella of the defendant’s allegation that serious questions existed before the trial about whether

the bullet that killed the victim was fired by the defendant or the other officers, that “the state’s

strategy of withholding and manipulating the evidence blindsided the defense in several ways, all

that helped to obfuscate the real doubt about what bullet struck Officer Selby,” and that the trial

court’s evidentiary rulings given this history were prejudicial.

Issues Related to Brad Taylor’s Testimony

With respect to the admission of Nurse Taylor’s testimony and the sufficiency of the proof

of the chain of custody of the bullet retrieved from the victim, the defense asserts that during the

years the case was pending before trial, they were given information that the fatal bullet had been

retrieved from the victim at the hospital but that they were never able to learn from discovery or their

own subpoena and investigation specific information about the recovery. The defense states they

learned on Sunday before trial that the state would call Taylor to testify that he recovered the bullet

and provided it to the authorities. At the time Taylor was called to testify, the defense did not object

to the admission of his testimony on the basis they had not been provided adequate notice. The

defendant objected during Taylor’s testimony to the adequacy of the state’s proof of the chain of

custody. After the close of the state’s proof, the defense notified the court that they were having

difficulty getting the hospital to comply with a subpoena for the victim’s medical records and

expressed further concern about the sufficiency of the proof of chain of custody. Counsel stated on

the record that the defense had tried before trial to obtain any record of the bullet having been

retrieved during the treatment of the victim but had been told there was not a notation in the log book

where the retrieval of evidence would customarily be recorded. Counsel stated that the state had

notified the defense on the Sunday before trial that Brad Taylor would testify and that at the time of

Taylor’s testimony, the defense had been provided with a copy of Taylor’s nursing notes

documenting the bullet retrieval. Counsel expressed concern about the chain of custody but did not

specifically object to Taylor’s testimony based upon the state’s late notice that Taylor would be a

witness.

The district attorney general is to list on the indictment the names of witnesses expected to

be called at trial. T.C.A. § 40-17-106. However, this duty is directory only. State v. Baker, 751

S.W.2d 154, 164 (Tenn. Crim. App. 1987); State v. Underwood, 669 S.W.2d 700, 703 (Tenn. Crim.

App. 1984). Accordingly, failure to include a name on the list does not necessarily disqualify that

witness from testifying. State v. Street, 768 S.W.2d 703, 711 (Tenn. Crim. App. 1988). However,

the statute is intended to prevent surprise to a defendant and to ensure that the defendant will not be

handicapped in defense preparation. State v. Morris, 750 S.W.2d 746, 749 (Tenn. Crim. App. 1987).

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A defendant will be entitled to relief for nondisclosure if he or she can demonstrate prejudice, bad

faith, or undue advantage. State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992); State v. Kendricks, 947

S.W.2d 875, 883 (Tenn. Crim. App. 1996). The decision to allow a witness to testify is discretionary

with the trial court. Id.

In the present case, the defendant has not demonstrated that the state’s late disclosure of

Taylor involved prejudice to him, bad faith by the state, or undue advantage to the state. The

defendant did not object during the trial to Taylor’s testimony on the basis of untimely notice of the

witness, meaning the trial court was never asked to rule on the admissibility of Taylor’s testimony

on the basis of nondisclosure. We hold that the trial court did not abuse its discretion in allowing

Taylor to testify.

Turning to the chain of custody question, the Tennessee Rules of Evidence provide, “The

requirement of authentication or identification as a condition precedent to admissibility 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.” Tenn. R. Evid. 901(a). If the facts and circumstances regarding the

evidence “reasonably establish the identity and integrity of the evidence,” it should be admitted.

State v. Kacy Dewayne Cannon, ___ S.W.3d ___, No. E2005-01237-CCA-R11-CD, Hamilton

County (Tenn. Apr. 28, 2008). If the state’s proof of the chain of custody is lacking, then the

evidence should not be admitted unless other appropriate means demonstrate the identity and

integrity of the evidence. Id. In establishing the chain of custody, the state is not required to call

as a witness every person who handled the evidence or to establish the identity of the evidence

beyond all possibility of doubt or to exclude every possibility of tampering. Id.

The state offered proof that Nurse Taylor recovered the bullet in the victim’s clothing, placed

it in a cup, labeled the cup, and gave it to Officer Norman Benjamin. Officer Benjamin testified that

he immediately gave it to Detectives Roberts and Galloway. Detective Roberts’ testimony

corroborated this. Roberts also testified that he returned to his office and gave the evidence to

“Sergeant White,” who tagged the evidence. Sergeant Scott Wright testified that he transported the

gun containing shell casings recovered from the defendant’s house and the bullet recovered from the

victim at the hospital to the T.B.I. lab for testing and that the items were later received back in the

Sheriff’s Department evidence room. T.B.I. Special Agent Don Carmen identified the same exhibit

that was identified by Detective Roberts as the bullet he examined. The trial court found that the

chain of custody of the bullet recovered from the victim had been established. We hold that the

admission of the related evidence was not an abuse of discretion.

As part of the defendant’s argument about the chain of custody proof, he complains that he

was deprived of the opportunity to challenge the evidence in a pretrial motion to suppress by the

state’s failure to provide him with complete information. However, even in light of the belatedly

revealed witness and the trial evidence about the chain of custody, he has not demonstrated any

defect in the chain of custody which would have supported a favorable ruling for him in a pretrial

motion to suppress. He is not entitled to relief on this basis.

Issues Related to Heath Barker’s Deposition

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According to the record, Heath Barker, a former T.B.I. employee, did extensive testing of

the

firearms and ammunition involved in this case, including weapons and ammunition from the

officers. At some point, the parties took Mr. Barker’s deposition because of his pending

unavailability due to military service. The deposition was transcribed, and an attempt was made to

video record the deposition. However, the battery on the video equipment did not last for the entire

deposition. During its case-in-chief, the state called Special Agent Don Carmen to testify as a

forensic expert about the ballistics evidence. Agent Carmen had re-examined the .357 revolver, the

bullet recovered at the hospital, the shell casings from the .357 revolver, the ammunition found in

the master bedroom, and the curtains from another bedroom. He did not examine any of the law

enforcement items. The state requested Agent Carmen’s re-examination after the technical failure

at Heath Barker’s deposition. The state did not seek to use the Barker deposition during its case-in-

chief, but the defendant sought to introduce it during his case-in-chief and to call his own expert

witness to contradict evidence given by Barker pertaining to the chain of custody. The defendant

claims he was not aware of the technical failure in video recording part of the deposition until after

Agent Carmen testified. He argues that by the time Carmen examined the bullet recovered at the

hospital, “the trail of questions about the provenance of the Rome bullet had been obscured.”

Regarding the defendant’s contention that the state failed to disclose problems with the

videotaping of the deposition, we are not able to determine the legal basis for the defendant’s

contention because he has cited none in his brief. See Tenn. R. App. P. 27(a)(7) (requiring argument

section of appellant’s brief to contain citation to legal authorities). We note, however, that neither

in his motion in limine seeking to introduce the deposition nor in the motion for new trial did the

defendant offer any evidence or compelling explanation of prejudice from this technical failure.

Further, we discern none because a written transcript of the deposition was available, which the

defendant attempted to introduce. The defendant is not entitled to relief on this basis.

Next, we turn to the question of the trial court’s ruling on the defense’s attempt to introduce

the Barker deposition for the purposes of calling a defense expert to controvert Barker’s testimony.

Depositions are allowed in criminal proceedings in certain situations, provided they are otherwise

admissible under the Rules of Evidence. Tenn. R. Crim. P. 15(f). Tennessee Rule of Evidence 702

provides for the admissibility of testimony by experts as follows: “If scientific, technical, or other

specialized knowledge will substantially assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. “Questions

concerning the qualifications, admissibility, relevancy, and competency of expert testimony

generally are left to the trial court’s discretion.” Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)

(citing Brown v. Crown Equip. Corp., 181 S.W.3d 268 (Tenn. 2005)). “This Court will not overturn

a trial court’s decision to admit or exclude expert testimony absent an abuse of that discretion.” Id.

“A trial court abuses its discretion by applying an incorrect legal standard or reaching an illogical

or unreasonable decision that causes the complaining party to suffer an injustice.” Id.

In the present case, the defendant argues that the Barker deposition “shed[s] light on the lack

of integrity in the chain of custody of the bullet [recovered at the hospital],” which would be

demonstrated through the testimony of the defense expert. He contends the trial court’s ruling

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prevented him from demonstrating flaws in Barker’s work and in the chain of custody. We are

unable to evaluate whether there is a valid factual basis for this argument because the record does

not contain either the deposition transcript or an offer of proof of the defense expert’s contentions,

and none otherwise appears on the record. We conclude that the defendant offered only an

unsubstantiated argument and therefore failed to prove how the expert evidence would substantially

assist the trier of fact in understanding the evidence or determining a fact in issue. The trial court

did not abuse its discretion in excluding this evidence.

III

The defendant claims that the jury instructions were misleading. He argues that the

instructions were flawed because they caused the jury to ignore the question of mens rea and to

believe conviction was required even if it did not accept inconsistencies and ambiguities in the

prosecution’s evidence. The instructions in question read:

Members of the jury, if you find from the proof that the

officers had a search warrant, you may infer that the officers were

under a legal duty to conduct the search. If the defendant knows that

the search is being made by law-enforcement officers, respect for the

rule of law requires that the defendant submit to the apparent

authority.

The law requires that a serving officer wait a reasonable

period of time after announcing before entering.

The types of considerations that the law allows an officer to

take into account for determining the existence of a reasonable period

of time include considerations such as:

Whether the officers have a justified belief someone within

the dwelling is in immediate peril of bodily harm.

Whether the officers have a justified belief those inside of the

dwelling are aware of their presence and are engaged in escape or the

destruction of evidence.

Whether a person inside the dwelling is armed and is either

likely to use the weapon or become violent.

Or whether the person inside the dwelling has threatened the

officer’s safety, possesses a criminal record reflecting violent

tendencies or has a verified reputation of a violent nature.

Whether or not any of these factors exist in this case, and if

so, what impact they may have had on determining what constituted

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a reasonable period of time in this case are factual matters for the jury

to determine.

Although the defendant states that the first paragraph regarding the defendant’s knowledge was

proper, he contends that the remainder of the instructions were erroneously given because it misled

the jury into believing that if the attempted search entry was properly executed, this fact was relevant

in determining the defendant’s guilt. He argues that his state of mind, not that of the officers, was

relevant. He also argues that these instructions confused the jury, as evidenced by their verdicts

convicting the defendant of the first degree murder and some of the attempted first degree murder

counts but acquitting him of other attempted first degree murder counts. The state argues that any

complaints about the jury instructions have been waived by the defendant’s failure to raise the issue

in the motion for new trial and by his failure to cite relevant authority in his brief. The state argues

that the jury was properly instructed on self defense.

Regarding the state’s waiver arguments, we discount the state’s argument based upon citation

deficiencies. Although the majority of the defendant’s citations are to cases from other jurisdictions

and for general propositions of law, his brief adequately addresses the legal authority for his

argument. However, the state is correct that the defendant did not raise the jury instructions in his

motion for new trial. Tennessee Rule of Appellate Procedure 3(e) provides that appellate issues

“predicated upon . . . jury instructions granted or refused” must have been specifically stated in a

motion for new trial or will be treated as waived. Because the defendant failed to specifically state

an issue regarding the jury instructions in his motion for new trial, the issue is waived.

In consideration of the foregoing and the record as a whole, the judgments of the trial court

are affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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