State of Tennessee v. Travis Boyd and Rodriccus Funzie

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

August 4, 2015 Session

STATE OF TENNESSEE v. TRAVIS BOYD and RODRICCUS FUNZIE

Appeal from the Criminal Court for Shelby County

No. 1201930 James C. Beasley, Jr., Judge

No. W2014-00676-CCA-R3-CD - Filed December 23, 2015

_____________________________

Appellants, Travis Boyd and Rodriccus Funzie, were jointly indicted and tried for first

degree murder. Upon verdicts of guilty as to each appellant, the trial court imposed a

mandatory sentence of life in prison. Appealing their convictions, both appellants

challenge the sufficiency of the convicting evidence and the trial court‟s admission of

recorded jail conversations. Appellant Boyd challenges the trial court‟s ruling allowing

testimony concerning an altercation between Boyd and the victim that occurred on the

Saturday night prior to the murder; the admission of evidence gathered during the course

of Boyd‟s allegedly illegal forty-eight-hour hold; the trial court‟s ruling allowing

identifications of Boyd by five witnesses; and the State‟s failure to provide complete

discovery. Appellant Funzie challenges the trial court‟s admission of two witnesses‟

statements as substantive evidence. Following our review, we affirm the judgments of

the trial court.

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

ROGER A. PAGE, J., delivered the opinion of the Court, in which ALAN E. GLENN and

ROBERT H. MONTGOMERY, JR., JJ., joined.

Paul J. Springer (at trial and on appeal) and Varonica R. Cooper (at trial), Memphis,

Tennessee, for the Appellant, Travis Boyd.

Richard S. Townley (on appeal); Marvin Earl Ballin and Benjamin Katz (at trial),

Memphis, Tennessee, for the Appellant, Rodriccus Funzie.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Pamela Fleming-Stark

and Reginald Henderson, Assistant District Attorneys General, for the Appellee, State of

Tennessee.

OPINION

This case concerns the shooting of the victim, Antuan Farris, at the barber shop

where he was employed. Appellants Boyd and Funzie1 were both indicted for first

degree murder for their participation in the shooting.

I. Facts and Procedural History

A. August 22, 2013 Continuation of Motion to Suppress

At the commencement of this hearing, the court stated on the record, “I think this

is further testimony on a motion to suppress. I think I‟ve already ruled on everything but

the one witness left; is that right?” Counsel agreed, stating that the only witness

remaining was Cory Hemphill. The State questioned Mr. Hemphill about his

whereabouts on September 13, 2011. Mr. Hemphill stated that he was present at a barber

shop in the area of Mountain Terrace and Frayser Boulevard on that date. Mr. Hemphill

was familiar with Boyd and his father and observed Boyd that day around 2:30 p.m. Mr.

Hemphill stated that he “just seen [sic] [Boyd] walking from the end of the store towards

the barber shop and he started shooting . . . at [the victim]. Him [sic] and [the victim] said

something and I seen [sic] [the victim] take off running and I seen [sic] [Boyd] shooting

behind him.” Mr. Hemphill recalled hearing three to four gunshots.

At this time, Mr. Hemphill had pulled his vehicle to the side of the road. He

turned around and exited his vehicle to locate the victim and assess his condition. He

found the victim lying in the back of a house, bleeding. The victim told him that

“„[Narvin Boyd‟s]2 brother Travis . . . shot him.‟” Mr. Hemphill remained at the scene

and spoke with police, and then he subsequently gave a statement at the police

department. At that time, Mr. Hemphill identified Boyd from a photographic line-up.

On cross-examination, Mr. Hemphill stated that he had known Boyd for five to six

years. He did not have a “relationship, per se,” with Boyd; he simply knew of him

1

Because this case involves two appellants, we will refer to each by his surname or collectively

as “appellants.”

2

Because Boyd has a brother, Narvin Boyd, who was involved in this matter, we will refer to

him as “Narvin Boyd” to avoid confusion. At times, Narvin Boyd is also referred to by his nickname,

“Da Da.”

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through Boyd‟s father. He clarified that on the day in question, he pulled up to the barber

shop and saw Boyd walking across the parking lot. Mr. Hemphill said that when Boyd

walked in front of the victim, he “look[ed] like he had something in his pocket, like he

was, you know, up to something.” Other individuals were standing with the victim—

Courtney, Adoll, and Michael (no surnames given). Mr. Hemphill described that the

barber shop was located at the corner of a strip mall that contained other stores. After the

shooting, the victim ran alongside the strip mall past the other store fronts, and the three

individuals ran around the back of the strip mall.

Mr. Hemphill stated that when the police arrived, they took his contact

information and asked him what he had seen. He told the officers what the victim had

told him about the identity of the shooter. Mr. Hemphill remained at the scene for fifteen

to twenty minutes, and he denied seeing Boyd brought back to the scene by police during

that time.

With regard to the photographic identification, Mr. Hemphill did not recall the

time of day that he made the identification or the name of the officer who administered

the line-up. He stated that at the time he viewed it, the only information written on it was

the offense number. Mr. Hemphill wrote the name “Travis Boyd” under Boyd‟s

photograph, and he signed it. He said that his identification of Boyd was based on his

previous knowledge of him and confirmed that he saw Boyd shoot the victim.

Based upon the testimony, the trial court denied Boyd‟s motion to suppress Mr.

Hemphill‟s identification of him.

B. Trial

Appellants‟ trial began on November 20, 2013. The State called the victim‟s

mother, Mae Smith, to establish the date of the victim‟s death. The State‟s next witness

was Rami Habhab, who, at the time of the murder, owned an EZ Store 3 located at the

corner of Frayser Boulevard and Mountain Terrace that was part of the strip mall. He

maintained a video surveillance system at his business, and he allowed police access to

his system so that they could copy the footage captured outside of his store on the day in

question. Through him, the video and multiple still photographs were introduced into

evidence and viewed by the jury.

The videotape provided by Mr. Habhab showed Funzie‟s green Cavalier as it

pulled into the EZ Store‟s parking lot. The driver‟s side door opened, and a black male

3

This business is described by various witnesses as “EZ Store,” “EZ Mart,” and “EZ Shop.”

However, because the business owner referred to it as an “EZ Store,” we will maintain that nomenclature

throughout this opinion.

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wearing clothing that matched the description of what Funzie was wearing on the date in

question exited the vehicle. The male walked around the front of the vehicle and out of

camera range. Seconds later, the victim ran past the Cavalier from the opposite direction,

followed presumably by Funzie. Both men ran around the corner of the building. Funzie

then returned to his vehicle, allowed the person who was firing the weapon to enter the

vehicle, and drove away.

The State then called Ryan Henderson, who testified that the victim had been his

barber and had been “like a big brother to [him].” Mr. Henderson said that on Saturday,

September 10, 2011, he finished work around 9:00 p.m., as did the victim. The two men

purchased a bottle of liquor and drove to the residence of an individual known as

“Jarvis.” The victim walked up to speak with people at the house, and Mr. Henderson

remained standing beside the vehicle. About fifteen minutes later, Boyd‟s brother,

Narvin Boyd, began walking toward them, “and he‟s pointing out two guys with the

white shirt[s].” Mr. Henderson wore a white button-down collared shirt at the time, and

the victim wore a white and blue-striped collared shirt, so he believed that Narvin Boyd

was pointing toward them. Neither the victim nor Mr. Henderson knew why Narvin

Boyd was pointing them out. Mr. Henderson continued, “And like three minutes later,

[Boyd] pulled up in the SUV truck and came out with the gun to me and [the victim]. In

three or four seconds he ran. [The victim] ran.” Mr. Henderson said that the victim

never asked any questions or said anything before he began running. Mr. Henderson said

that after about three seconds he “caught on” and began to run, also. He had no idea what

had triggered the confrontation, but he “guessed” that the confrontation was related to the

subsequent murder of the victim.

Mr. Henderson recalled that on the following Tuesday, he left his grandmother‟s

house and drove to the EZ Store to purchase gas. Before doing so, he walked into the

barber shop to speak to the victim. Mr. Henderson was accompanied by a friend, Tavaris

(no surname given). Mr. Henderson then walked into the EZ Store to pay for his gas. As

he was exiting, Tavaris, also known as “T.B.,” approached him and told him that there

were some “guys outside.” Upon exiting the store, Mr. Henderson observed that it was

Narvin Boyd and that he was driving a red Cadillac. Mr. Henderson stood outside of the

store talking with a young lady, and Narvin Boyd approached him and asked, “„What‟s

up from the other night[?]‟” Mr. Henderson replied that he was unsure what Narvin

Boyd was talking about. He described, “I looked around and checked my surroundings

and [Narvin Boyd] hit me in the back of the head with the gun. That‟s when I fell against

the store door and I ran in Black‟s Barber Shop and . . . said I just got hit in the head with

a gun.” Mr. Henderson said that he then walked back outside to be sure that no one was

chasing him. He entered his car and began to leave. As he was leaving, he saw Steve

Chambers and some other individuals pumping gas at pump four.

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Mr. Henderson recalled that when he left, he saw his father at the Victory gas

station across the street. He drove to his grandmother‟s house, which was nearby, and sat

down. About five minutes later, he heard gunshots. He drove back to the scene and

learned that the victim had been shot.

At that point in the proceedings, the State asked Mr. Henderson if he could

identify the individual who pulled the gun on him and the victim on Saturday night. Mr.

Henderson indicated Boyd and said, “I think that‟s him right there with the blue shirt.

The defense objected that it was not a positive identification, but the trial court allowed it

with “whatever weight [the jury] want[s] to give it.”

On cross-examination, Mr. Henderson explained that he and the victim drove to

Mr. Jarvis‟s house because the victim wanted to check on an incident involving Mr.

Jarvis wherein he had been robbed earlier in the day. Mr. Henderson stood on the edge

of the road while the victim went up to the house and spoke with some of its occupants.

Narvin Boyd, who had been sitting on the porch at a house across the street, began to

walk over while pointing out two individuals wearing white shirts. Mr. Henderson said

that this caused him to wonder what he had done because he was not acquainted with

Narvin Boyd. Mr. Henderson kept hearing Narvin Boyd saying “white shirt, two white

shirts.” Within approximately three minutes, Boyd‟s vehicle turned the corner, and Boyd

was pointing a gun at Mr. Henderson and the victim. The victim fled, followed by Mr.

Henderson. Mr. Henderson described the gun Boyd wielded and said that he thought it

was the same gun with which Narvin Boyd struck him the following Tuesday.

Mr. Henderson testified that when they left Mr. Jarvis‟s neighborhood, he and the

victim traveled to the residence of the victim‟s girlfriend, where they remained until

Monday. He stated that he went to the barber shop on Tuesday morning and that the

incident occurred around 9:00 or 10:00 a.m. He clarified that when he saw his father at

the Victory gas station, he told his father that he had been struck in the head with a pistol

and that his father followed him to his grandmother‟s house. There, Mr. Henderson‟s

father assessed his injuries. Soon, they heard gunshots, and Mr. Henderson‟s father

advised him to return to the scene and inform the police of what had occurred earlier.

Cory Hemphill, the victim‟s brother-in-law, was the State‟s next witness. The

victim had just cut Mr. Hemphill‟s hair at Black‟s Barber Shop on Tuesday, September

13, 2011, around 2:30 p.m., and Mr. Hemphill had been standing outside of the barber

shop talking to someone for thirty to forty-five minutes. As he entered his vehicle and sat

down, Mr. Hemphill observed Boyd “come from inside of the store walking up the

sidewalk and walk up on [the victim].” He clarified that he knew Boyd through Boyd‟s

father. Mr. Hemphill saw the two men talking but could not hear what was being said.

At that time, the victim began to run, and Boyd gave chase, pulling a weapon from his

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pocket or waistband and shooting at the victim while he ran. The two men ran toward the

EZ Store.

Mr. Hemphill stated that he followed the victim to render aid. He located the

victim in a backyard on Mountain Terrace, which was nearby. Mr. Hemphill said that the

victim had a large hole near his collarbone. The victim told him that “[Narvin Boyd‟s]

brother shot him.” Mr. Hemphill identified Boyd in court as the person whom he saw

shoot the victim. Mr. Hemphill testified that at the scene, he also saw someone known to

him as “Little Ryan,” or Ryan Henderson. He witnessed Narvin Boyd strike Mr.

Henderson with a gun.

On cross-examination, Mr. Hemphill admitted that he had been convicted of drug

charges previously but denied that the barber shop was a “front” for selling drugs or that

he had been selling drugs at the barber shop on the day in question. He clarified that

when Boyd approached the barber shop, the victim was seated on a garbage can outside

of the shop talking with Courtney Adair. Mr. Hemphill recalled that the police asked him

to give a description of the person who shot the victim, and he described the shooter as

being “dark-skinned,” around 5′6″, and wearing Air Max shoes and khakis. However,

defense counsel pointed out that Mr. Hemphill described the shooter as having a medium

complexion and being between 5′9″ and 6′0″.

The State called Alvin Shaw as its next witness. Mr. Shaw was present with the

victim on the Saturday prior to his death and was with him when he was shot. Mr. Shaw

stated that on Saturday, there was an altercation of some sort but that he did not know the

cause of it. While he was standing there, the victim became engaged in an argument with

Narvin Boyd, and shortly thereafter, Boyd arrived and pulled a gun on the victim. The

victim ran. Mr. Shaw stated that at that point, “it was over.”

Mr. Shaw testified that on the following Tuesday, he was as at the barber shop

when Mr. Henderson ran inside and told them that Narvin Boyd had struck him in the

head with a gun. Mr. Shaw and the victim ran outside to ascertain the situation, but

everyone was gone. They walked next door to the EZ Store and purchased beer then sat

outside the barber shop drinking. About fifteen minutes later, Boyd arrived and

addressed the victim, “„[A]in‟t you the same n***** that got that beef with my

brother[?]‟” The victim replied that they had “squashed that s***.” Mr. Shaw stated that

“mayhem” erupted at that point.

Mr. Shaw recalled that the victim had not paid any attention to Boyd; he had

continued texting on his telephone and had not looked up until Boyd “upped” his gun at

the victim. At that point, the victim ran toward Mountain Terrace, and Mr. Shaw ran

toward Frayser Boulevard. Mr. Shaw eventually came back toward the barber shop with

the intention of driving his vehicle to locate the victim, but he saw the victim in a

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backyard across the street before he could drive away and proceeded toward him. Mr.

Shaw said that the victim was gasping for breath and had a hole in his body that was

“pouring out blood.” Mr. Shaw removed his own shirt, poured water on it, and applied it

to the victim‟s wound, reassuring him that an ambulance was en route.

During the investigation, Mr. Shaw was shown a photographic array, and he

identified Boyd from the array. When he made the identification, he wrote below Boyd‟s

photograph, “That‟s the guy that walked up on us and started shooting [the victim] and he

also pistol[-]played [the victim] Saturday night.” Mr. Shaw also identified a photograph

of Narvin Boyd from an array, below which he wrote, “That‟s Da Da [a/k/a Narvin

Boyd]. He pulled up on the -- in the Cadillac before the shooting started.”

Mr. Shaw elaborated that regarding the altercation on Saturday, when he arrived at

the scene, the victim was not saying anything. Narvin Boyd was talking to the victim,

saying that he was not about to rob anyone and that they had him “messed up.” After

that, Boyd drove up and asked Narvin Boyd “which one it [was]” because there were two

individuals wearing white and blue shirts. Mr. Shaw stated:

So [the victim] and Little Ryan [Henderson] both had a white and blue shirt

on, so [Boyd] upped the gun on both of them. But he pointed at Little Ryan

first and asked him was this him and then he was like no. Then when he

pointed at [the victim], [and] [the victim] just got to running.

With regard to the Tuesday incident, Mr. Shaw explained that he just “sat there”

until Boyd “got ready to up his pistol.” He said, “By the time he got ready to cock it, I

was in motion running.” Mr. Shaw heard six to seven shots fired in rapid succession. He

recalled that Boyd was wearing a gray or brown shirt with a lime green stripe at the

bottom, a hat, and Air Max tennis shoes. He expounded that he did not pay much

attention to Boyd when he first approached because Boyd “looked young, . . . like all the

other school kids.”

Mr. Shaw explained that at the time, he thought that Boyd had left with Narvin

Boyd because he did not see any other car in which Boyd could have fled. He agreed that

he knew Cory Hemphill and that he saw Mr. Hemphill that day. Mr. Shaw said that he

was parked behind Mr. Hemphill and that he had to move his vehicle so that Mr.

Hemphill could leave. He recalled that Mr. Hemphill left “before everything took place.”

Mr. Shaw was shown articles of clothing and was asked if he could identify any of

them. He identified the Air Max tennis shoes as being worn by Boyd on the day in

question, but he could not unequivocally identify the shirt or the jeans he was shown.

Further, with regard to the Saturday incident and the involvement of Mr. Jarvis, he

confirmed that Mr. Jarvis was a little “slow.”

-7-

The State called Michael Pitts, a licensed barber who was working at Black‟s

Barber Shop on September 13, 2011. Mr. Pitts recalled that he and the victim had just

returned from the EZ Store around 2:30 that afternoon and were sitting outside of the

barber shop drinking beer. Boyd walked up and said that someone had a problem with

his brother, and then he fired his weapon. Mr. Pitts and Boyd fled in opposite directions.

Mr. Pitts was familiar with Boyd prior to this date because Boyd had attended school

with Mr. Pitts‟s brother. At some point, Mr. Pitts stopped and returned to the barber

shop. He, Mr. Henderson, Adrian Moore, and someone known as “A-Dog” began to

search for the victim. They located the victim in a backyard, and he was “gasping for

air” after having been shot. Mr. Pitts remained on the scene but did not speak with

police. He later gave a statement and identified Boyd from a photographic array.

Mr. Pitts stated that to his recollection, Mr. Henderson had been at the barber shop

earlier in the day but that he was no longer present when the victim was shot. He also

acknowledged that “A-Dog” could have walked with them to the EZ Store and that he

was sitting outside when Boyd approached.

Courtney Guy, the State‟s next witness, testified that he was present at the barber

shop when the victim was shot. He explained that he and some other individuals were

sitting outside when Boyd exited a car, approached them, and asked what was going on

between the victim and Narvin Boyd. Mr. Guy relayed that the victim told Boyd that the

issue had been “squashed” but that Boyd drew his gun and started firing. The victim

began to run, and Mr. Guy sought shelter behind an automobile. He watched as Boyd

ceased fire and fled the scene as a passenger in a small turquoise car. Thereafter, he

joined in searching for the victim, whom they found in a backyard across the street.

Boyd was yelling something about “Da Da‟s brother.” Mr. Guy remained at the scene

and gave a statement to the police. He also identified Boyd from a photographic array.

Mr. Guy described Boyd‟s clothing that day as a “[s]nap back hat, lime green

colors, with jeans and a t-shirt, and some really loud Air Max.” He clarified that when he

identified Boyd in the photographic array, no one had told him whom to circle. The

writing that was on the array was placed there by Mr. Guy; he wrote, “This is the guy that

shot [the victim] . . . .”

On cross-examination, Mr. Guy acknowledged that prior to that day, he was

unfamiliar with Boyd and had never met him. He also emphasized that he worked “with

clothing and shoes and fashion all day, so that‟s the first thing [he] look[ed] at on

anybody,” which was why he was certain of Boyd‟s clothing, including the lime green

stripes on his shoes.

The State called Andrea Carlton as its next witness. Ms. Carlton testified that

Boyd, also known as “T-Roc,” was the best friend of her baby‟s father. Funzie was also a

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close friend of her baby‟s father. Ms. Carlton denied any memory of September 13,

2011, any knowledge of the locations in question, and any recollection of giving a

statement.4 She also denied having viewed a video of the incident on the following day.

Upon examination by the State as a hostile witness, Ms. Carlton read from her statement

and said that appellants were at her house on the day in question. She read that Boyd was

wearing an Aeropostale shirt, a black and green hat, and Air Max tennis shoes, while

Funzie was wearing black jeans, a black hat, solid red shoes, and a white “wife beater”

undershirt. Funzie was driving a green Cavalier that day. Ms. Carlton also agreed that

she identified both appellants in photographic arrays and confirmed that her signature

was on the arrays. She further acknowledged that she was taken to the police station

because her name had been provided as an alibi witness but that she was unable to

provide an alibi for either appellant.

On cross-examination, Ms. Carlton claimed that she was using drugs at the time

she gave her statement and that she was “[a]bout a nine, ten” on a scale of one to ten

measuring her level of intoxication. She claimed to have ingested Lortab and Xanax

before giving her statement. She disavowed any memory of the questions asked of her by

Lieutenant Murray as well as having viewed the video surveillance tape.

The State called Memphis Police Department (“MPD”) Officer Darron Smith as

its next witness. Officer Smith and his partner responded to information regarding a

shooting at the EZ Store on September 13, 2011, around 2:30 p.m. When they arrived, he

observed a large group of people assembled at a residence across the street from the

commercial building. He discovered the victim lying in the backyard, bleeding from a

chest wound. Officer Smith asked the victim who shot him, and the victim responded

that it was “Da Da‟s brother.” Another individual was kneeling beside the victim,

rendering aid. Shortly thereafter, Officer Smith and his partner began clearing the crowd

to protect the crime scene. He testified that the victim died either in the backyard or at

the hospital. On cross-examination, Officer Smith acknowledged that after the victim

named “Da Da‟s brother” as the shooter, individuals on the scene began saying, “Travis.”

MPD Officer Manta Massey was the State‟s next witness. Officer Massey stated

that when she and her partner heard the radio call regarding the shooting, the information

contained a description of the suspect. Thus, they decided to check the area as they were

en route to look for possible suspects. Specifically, they were looking for an individual

named “Travis” who was wearing lime green shoes. As they were driving, they

encountered Boyd, an individual who fit the description, so they stopped, asked him his

4

During a jury-out hearing, the State called Lieutenant Vivian Murray, who took Ms. Carlton‟s

statement, as a witness. Following her testimony, the trial court found that the preponderance of the

evidence supported that Ms. Carlton gave her statement under circumstances that would indicate

trustworthiness and that her statement was admissible under Tennessee Rule of Evidence 803(26).

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name, and detained him. They drove back to the crime scene with Boyd, where

investigators advised them to take him to the homicide division of the police department.

Officer Massey stated that they never removed Boyd from the cruiser and that they were

at the scene for a short time.

Officer Massey stated that they first observed Boyd around a mile to a mile and a

half away from the crime scene. The arrest ticket indicated that he was detained at 3:05

p.m. On cross-examination, Officer Massey agreed that if the dispatch log stated that

they left the scene at 3:55 p.m., she would have no reason to dispute that information.

MPD Officer Sam Blue, a crime scene investigator, identified a sketch that another

officer made of the crime scene as well as photographs that he took of the scene.

Through him, shell casings recovered at the scene were admitted into evidence.

The State called Zaviaus Miller as its next witness, who knew the victim only by

his nickname, “Andy.” Mr. Miller stated that he arrived at the barber shop with Narvin

Boyd in a burgundy-colored Cadillac. He was walking toward the barber shop when

someone began shooting. Mr. Miller, in turn, ducked and started running. During his

testimony, Mr. Miller claimed that officers disavowed his statement and threatened to

charge him with first degree murder if he did not implicate the shooter(s). He stated that

the police “basically” wrote the statement and made him sign it.5 When asked about

specific facts in the statement, Mr. Miller denied having given those answers during his

police interview. He denied seeing either appellant at the barber shop on the day in

question and denied seeing them drive up in a green Cavalier. He acknowledged

identifying both appellants and Narvin Boyd in photographic arrays while at the police

station.

MPD Lieutenant Anthony Mullins testified that on the day of the victim‟s murder,

he was working as a homicide officer and that he came into contact with Boyd during the

course of the investigation. Lieutenant Mullins observed the clothing Boyd was wearing

that day and requested that the crime scene unit photograph and collect the clothing.

Through Lieutenant Mullins, the clothing was admitted into evidence.

Lieutenant Mullins stated that he first came into contact with Zaviaus Miller at the

homicide office. He was unaware of how Mr. Miller came to be at the police station.

Other officers were attempting to interview Mr. Miller, and when they ceased the

5

During a jury-out hearing, the State called Lieutenant Anthony Mullins, who took Mr. Miller‟s

statement, as a witness. Following his testimony, the trial court found that the preponderance of the

evidence supported that Mr. Miller gave his statement under circumstances that would indicate

trustworthiness and that his statement was admissible under Tennessee Rule of Evidence 803(26).

-10-

interview and left the room, Mr. Miller began “yelling and hollering that he want[ed]

somebody to come talk to him.” Accordingly, Lieutenant Mullins checked on Mr. Miller,

and when Mr. Miller recognized Lieutenant Mullins from a previous case, Mr. Miller said

he wanted to speak with Lieutenant Mullins about the murder. Lieutenant Mullins said

that Mr. Miller had already been read his rights because he was a possible suspect in the

homicide. Mr. Miller agreed to give Lieutenant Mullins a statement, which was recited

in part for the jury. In the statement, Mr. Miller implicated Boyd as the shooter; Mr.

Miller acknowledged having been at the scene and having witnessed Boyd shoot the

victim. He surmised that the motive behind the shooting had something to do with

Narvin Boyd. Mr. Miller was present because Narvin Boyd was dropping him off at the

barber shop. Boyd did not ride with them; he arrived separately in a green Cavalier with

“Rod.”

Specifically, Mr. Miller stated:

Well[,] I called [Narvin Boyd] about noon or a little before noon on

Tuesday so I could get me a haircut. He had already told me he‟ll take me

but he said he wasn‟t gonna stick around „cause he had smacked a dude up

there earlier that morning. So when I got on the lot in the burgundy

Cadillac, I hopped out the car and then I was walking to the front of the

barbershop, [Boyd] was already walking up there as well. [Boyd] got up

there before I did and when he got up there, him and [the victim] had

words, a few words. It couldn‟t been more than thirty seconds to a minute

that they had been arguing in front of the barber shop. [The victim] jumped

up and took off running and [Boyd] start[ed] shooting after that. [Boyd]

chased [the victim] down to the end of the store and still was shooting, it

was like 7 shots. I was already in the Cadillac pulling off the lot. We

pulled off the lot, we turned off Whitney and the car died.

Mr. Miller indicated in his statement that the victim was holding a beer bottle in

his hand and that he did not have a gun. He described Boyd‟s gun as being a black and

silver automatic weapon and said that he did not know what became of the weapon. Mr.

Miller said that he saw Boyd earlier in the day when they “smoked” but that he did not

know that Boyd intended to confront or shoot the victim. Mr. Miller affirmed in his

statement that he knew Narvin Boyd, Travis Boyd, and Funzie and that he wrote their

names and signed the corresponding photographic array containing their pictures.

Dr. Marco Ross, a Shelby County medical examiner, was offered as an expert

witness in the field of forensic pathology and was accepted as the same by the trial court.

Dr. Ross testified that the victim suffered a gunshot wound to the chest region as a result

of an entrance wound in the victim‟s back. The bullet traveled through the fourth rib on

the left side and punctured the upper part of the left lung. The bullet exited just behind

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the collarbone where it meets the sternum or chest bone. The victim‟s toxicology report

indicated a positive result for alcohol at twenty-one milligrams per deciliter, or 0.021 on a

“breathalyzer” scale. No other illegal substances were detected. Dr. Ross opined that the

victim‟s cause of death was a gunshot wound to the chest.

On cross-examination, Dr. Ross stated that the maximum length of time a person

with this type of injury could live without medical intervention would be one hour. He

noted from his review of the record that the victim was shot around 2:39 p.m. and that he

arrived at the hospital by ambulance around 3:00 p.m.

The State presented MPD Officer Juaquatta Harris, whose employment involved

monitoring and disseminating inmate telephone calls. She said that the recording of jail

telephone calls is initiated by a request from a law enforcement agency. Each inmate has

a unique RNI number, which is used to retain and store the calls. They also log

information from databases to assist in identifying the calls for which they are searching,

such as co-defendants‟ names, addresses, and telephone numbers. To begin a recording,

Officer Harris would input an inmate‟s RNI number into their telephone system, and any

calls that were placed using that unique RNI number would appear. She would then

listen to each of the calls, using the above criteria, to confirm that the person whom she

was trying to record was actually the person on the call. She would then note the

telephone number that was dialed. A cross-reference system was also in place in the

event that an inmate allowed someone else to place a call using his RNI number.

Through Officer Harris, recordings of telephone calls placed by both appellants

while in jail were identified, introduced into evidence, and played for the jury. Officer

Harris testified that in addition to the above safeguards that she utilized, she was also

familiar with Funzie‟s voice.

The State‟s final witness was MPD Lieutenant Vivian Murray, the case officer for

the investigation. When she arrived at the scene, officers had secured the witnesses and

had taped off the crime scene. Lieutenant Murray was given a description of the shooter,

and officers had already broadcast the description over the radio. An officer soon

advised that he had located an individual matching the suspect‟s description and that the

individual gave the name of “Travis” when asked. Boyd was arrested and was briefly

brought to the crime scene then transported to the jail. Lieutenant Murray confirmed that

Boyd was not removed from the vehicle while at the scene and that no one was permitted

to view him. Witnesses were also taken to the police department, and investigators were

asked to begin interviews upon the witnesses‟ arrival.

Lieutenant Murray testified that her presence was required at the scene but that

after the crime scene sketch had been completed, she returned to her office. During the

course of the investigation, she received the names of three individuals who could

-12-

allegedly provide alibis for both appellants. One of those individuals was Andrea

Carlton, who gave Lieutenant Murray a statement. Through Lieutenant Murray, the State

introduced the statement of Ms. Carlton.

Lieutenant Murray stated that while giving her statement, Ms. Carlton viewed the

video surveillance tape and identified Boyd and Funzie‟s automobile. She said that Ms.

Carlton was upset because she wanted to know who would involve her as an alibi to a

homicide. Lieutenant Murray recalled that as part of the interview procedure, she would

assess whether the interviewee was under the influence of alcohol, an intoxicant, or

drugs. She said that Ms. Carlton signed, initialed, and dated her statement and that

according to her observation, Ms. Carlton was not under the influence of alcohol or drugs

at the time she gave her statement. In fact, Lieutenant Murray stated that she would be

“surprised” to learn that Ms. Carlton had ingested drugs because she exhibited no signs of

being under the influence.

Lieutenant Murray also interviewed Funzie, who reported to the police station on

his own volition. Funzie said that he had an appointment to get his hair cut on the day in

question. He pulled up to the strip mall and began to exit but saw his barber sitting

outside and heard gunshots, so he drove away. When Lieutenant Murray confronted him

with the videotape, Funzie “didn‟t say anything. He just kind of looked at the video

screen, dropped his head, took like a sigh or a deep breath, and then told me[,] [„][Y]‟all

can just take [me] back to jail.[‟”] Lieutenant Murray did not take Boyd‟s statement.

Lieutenant Murray testified that through the use of an alternative light source, she

identified gunshot residue on Boyd‟s hands. However, no swabs were submitted to the

Tennessee Bureau of Investigation (“TBI”) for confirmation.

Lieutenant Murray stated that she was unaware of the exact time that she arrived at

the crime scene. However, she recalled that Boyd was brought to the scene while she

was there. She agreed that the arrest ticket indicated that Boyd arrived at the scene in

police custody at 3:16 p.m. and that he was taken from the crime scene at 3:55 p.m. She

acknowledged that the arrest ticket indicated that Boyd was apprehended by police at

3:05 p.m. Lieutenant Murray said that she was not aware that Boyd was present at the

crime scene for that duration of time. She denied that the purpose in taking Boyd to the

crime scene was for a “show-up” identification of him. She did not have any contact

with Boyd while he was present.

Lieutenant Murray testified that Boyd was placed on a forty-eight-hour hold upon

his arrest and that she had probable cause to detain him. Specifically, she reviewed the

evidence in support of his detention that police had amassed thus far in the investigation:

“[Narvin Boyd‟s] brother had been implicated; the name “Travis” had been given to

-13-

police by eyewitnesses to the crime; Boyd matched the description of the suspect that had

been supplied to the police; and, officers verified the relationship between Narvin Boyd

and Travis Boyd.” Lieutenant Murray stated that Funzie arrived at the police station on

his own, where he was subsequently detained.

The State then introduced the contents of telephone calls that each appellant made

while in custody, as follows: calls placed by Boyd on 9/13/2011, at 23:45, and on

9/14/2011, at 00:13, 00:34, and 00:43; and a call placed by Funzie on 9/23/2011, at

10:16. Thereupon, the State rested its case-in-chief.

Boyd recalled Mr. Miller as a witness. Mr. Miller testified that his statement bore

his initials but that he did not initial the statement. He also claimed that he did not sign

the identification of Boyd on the photographic array and noted that his name was

misspelled in the signature. However, he acknowledged that he was familiar with Boyd

and Funzie and that he could have identified them nonetheless.

On cross-examination, Mr. Miller acknowledged that in his initial testimony, he

said that officers made him sign the statement but that at that point, he had not had time

to review his statement fully. He explained that officers made him correct “mistakes” in

his statement and that they forged his signature. He agreed that he would have had no

problem identifying both appellants but that he simply did not sign the identifications.

He clarified that he identified Narvin Boyd and Funzie but not Travis Boyd. He claimed

that he was forced to initial his statement or face a first degree murder charge.

Sebias Johnson was Boyd‟s next witness. She testified that she was the mother of

Boyd‟s child. She said that Boyd telephoned her for a ride to his grandmother‟s house on

September 13 between noon and 1:00 p.m. She maintained that she picked him up from

The Villages apartments and drove him to Sandpiper Avenue. She waited at the

residence while Boyd assisted his family in caring for his disabled uncle. She planned to

drive him back to The Villages, but while en route, Boyd‟s cellular telephone kept

ringing, and he silenced it. This angered Ms. Johnson because she believed the calls were

being placed by a female. Accordingly, she stopped her vehicle on Range Line Road and

demanded that Boyd exit immediately. She estimated that the time was 2:00 p.m. or

shortly thereafter. On cross-examination, Ms. Johnson acknowledged that Boyd shared a

vehicle with his mother but stated that she worked two jobs, thus implying that she was

using the vehicle at that time. She admitted that she was acquainted with Funzie but

denied knowing Mr. Miller.

Boyd presented Dustin Carter as a witness. Mr. Carter said that he picked up

Boyd from his mother‟s home around 10:00 a.m. and drove him to Ms. Carlton‟s

residence at The Villages apartments to assist Ms. Carlton in packing boxes because she

was moving. He recalled that Ms. Johnson arrived to drive Boyd to his grandmother and

-14-

uncle‟s residence. Mr. Carter remained at Ms. Carlton‟s apartment until Boyd telephoned

him approximately one hour later requesting a ride. He said that Boyd needed a ride

because Ms. Johnson had left him stranded. Mr. Carter said that when he arrived at

Boyd‟s location, he observed that Boyd had been detained by police. When the police

drove away with Boyd, he followed the squad car to the EZ Store. In the interim, Mr.

Carter telephoned Narvin Boyd and Boyd‟s father to inform them of what was

transpiring.

On cross-examination, Mr. Carter stated that Mr. Miller was not present during

this time. He clarified that he arrived at Ms. Clayton‟s residence around noon and that he

remained there around two hours. Funzie was not present. He also stated that Boyd was

away from Ms. Carlton‟s apartment approximately one to two hours before he telephoned

for a ride. Mr. Carter said that he watched Boyd on Range Line Road for thirty minutes

to one hour before the police drove away with him. He also watched Boyd at the EZ

Store but did not exit his vehicle while there.

Cedric Davis was Boyd‟s last witness. He lived on Nunnelee Avenue with his

wife and children. He recalled that on September 10, 2011, he went outside and learned

that Mr. Jarvis had been robbed and that people were accusing Narvin Boyd of the crime.

Mr. Davis was talking to Mr. Jarvis‟s uncle, “Melvin,” when other individuals gathered.

“Words” were exchanged wherein the victim accused Narvin Boyd of being involved.

Mr. Davis claimed that the victim then pulled up his shirt to reveal a black handgun. At

that time, Narvin Boyd was on Mr. Davis‟s porch, but he then started to walk down the

street. Mr. Davis stopped Narvin Boyd and told him not to get involved because it was in

“the best of [their] interest to leave.” Mr. Davis said he never saw Travis Boyd that night

and that Narvin Boyd left forthwith. Mr. Davis said that on September 13, 2011, between

11:30 p.m. and 12:00 a.m., his home was “shot up” and that it occurred again ten days

later.

Upon this proof, Boyd rested his defense. Funzie rested without presenting

evidence. The State called MPD Lieutenant Darren Goods as a rebuttal witness, who

testified that he took Boyd‟s statement. In the statement, Boyd claimed that he was

picked up by Mr. Carter from his mother‟s residence and that Mr. Miller was present at

the time. Boyd said that they proceeded to someone‟s girlfriend‟s residence to try to

gather rent money so that she would not be evicted. When they left that residence, Mr.

Carter allegedly dropped off Boyd “in the neighborhood sometime.” He said that he

eventually arrived at the home of his girlfriend but that they argued and she made him

leave. He was then arrested.

On cross-examination, Lieutenant Goods acknowledged that the supplement to his

report indicated that Boyd said that later in the day, he telephoned his girlfriend and

-15-

asked her to pick him up and take him to his aunt and uncle‟s house on Sandpiper

Avenue but that on the way, they argued and she forced him from her vehicle.

Following deliberations, the jury found both appellants guilty of first degree

murder as charged in the indictment. The trial court imposed automatic sentences of life

in prison. Each appellant now appeals his conviction.

II. Analysis

In this appeal, both appellants challenge the sufficiency of the convicting evidence

and the trial court‟s admission of recorded jail conversations. Boyd challenges the trial

court‟s ruling allowing testimony concerning the altercation between Boyd and the victim

on the Saturday night prior to the murder; the admission of evidence gathered during the

course of Boyd‟s allegedly illegal forty-eight-hour hold; the trial court‟s ruling allowing

identifications of Boyd by Mr. Henderson, Mr. Hemphill, Mr. Shaw, Mr. Pitts, and Mr.

Guy; and the State‟s failure to provide complete discovery. Funzie challenges the trial

court‟s admission of the statements of Mr. Miller and Ms. Carlton as substantive

evidence.

A. Sufficiency of the Evidence

1. Standard of Review

The standard for appellate review of a claim challenging the sufficiency of the

State‟s evidence is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing

Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v.

Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient

evidence, appellant must demonstrate that no reasonable trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at

319. This standard of review is identical whether the conviction is predicated on direct or

circumstantial evidence, or a combination of both. State v. Dorantes, 331 S.W.3d 370,

379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “„we afford the prosecution the strongest legitimate view of

the evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857

(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of

witnesses and the weight and value to be given the evidence, as well as all factual

-16-

disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,

958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

This court presumes that the jury has afforded the State all reasonable inferences from the

evidence and resolved all conflicts in the testimony in favor of the State; as such, we will

not substitute our own inferences drawn from the evidence for those drawn by the jury,

nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;

Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

Because a jury conviction removes the presumption of innocence that appellant enjoyed

at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts

from the State to the convicted appellant, who must demonstrate to this court that the

evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing

State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

2. Boyd

As indicted in this case, first degree murder is the premeditated and intentional

killing of another. Tenn. Code Ann. § 39-13-202(a)(1). “„[P]remeditation‟ is an act done

after the exercise of reflection and judgment. „[P]remeditation‟ means that the intent to

kill must have been formed prior to the act itself.” Id. § 39-13-202(d).

Boyd‟s specific challenge to the sufficiency of the evidence involves the

credibility and veracity of the witnesses against him. He claims that “some of the

witness[es‟] testimony, in particular, Cory Hemphill‟s testimony, constituted perjury” and

that “all of the State‟s witnesses had completely different stories of how the events took

place and [the] physical description of the shooter.” This court has previously stated,

[Appellant‟s] challenge to the sufficiency of the evidence invites this court

to revisit the question of the victim‟s credibility . . . . Because the

resolution of questions of fact, including witness credibility, is within the

province of the jury, we must decline the defendant‟s invitation. By its

verdict, the jury accredited the [witness‟s] testimony despite its sometimes

inconsistent nature on particular details.

State v. Thompson, 36 S.W.3d 102, 107 (Tenn. Crim. App. 2000); see also State v.

Stephens, 264 S.W.3d 719, 740 (Tenn. Crim. App. 2007) (noting that appellant‟s

challenge to the sufficiency of the evidence was based on the credibility of a witness and

that this court will not discount the testimony of a witness and engage in a re-weighing or

re-evaluation of the evidence on appeal). All witnesses were thoroughly cross-examined,

and the jury assessed the testimony and evidence at trial. We will not substitute our own

inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh or

re-evaluate the evidence. Dorantes, 331 S.W.3d at 379. Appellant is not entitled to relief

on this claim.

-17-

Viewed in the light most favorable to the State, the evidence was sufficient to

support Boyd‟s conviction for first degree murder. Mr. Henderson and Mr. Shaw

provided evidence of premeditation stemming from the altercation that occurred on the

Saturday prior to the victim‟s murder. Testimony from witnesses at the scene of the

murder established that Boyd sought to rectify some pre-existing problem between his

brother, Narvin Boyd, and the victim. Video surveillance tapes placed Boyd at the scene,

fleeing in Funzie‟s automobile. Several eyewitnesses, including Mr. Henderson, Mr.

Hemphill, Mr. Shaw, Mr. Pitts, and Mr. Guy, identified Boyd as the shooter. A gunshot

residue test using an alternative light source confirmed the presence of gunshot residue

on appellant‟s hands at the time of his arrest. The victim made a dying declaration

implicating Narvin Boyd‟s brother, Travis Boyd, as the person who shot him. Boyd

matched the description of the shooter that was disseminated through police dispatch, and

he was wearing clothing consistent with that described by eyewitnesses. When asked his

name, he answered, “Travis,” which was also consistent with information gleaned at the

crime scene. Boyd is not entitled to relief on this claim.

3. Funzie

In addition to charging the jury with respect to the elements of first degree murder,

the trial court also instructed the jury on the theory of criminal responsibility:

A person is criminally responsible for an offense committed by the

conduct of another, if:

(1) Acting with the culpability required for the offense, the

person causes or aids an innocent or irresponsible person to

engage in conduct prohibited by the definition of the offense;

[or]

(2) Acting with intent to promote or assist the commission of the

offense, or to benefit in the proceeds or results of the offense,

the person solicits, directs, aids, or attempts to aid another

person to commit the offense.

Id. § 39-11-402.

Ms. Carlton and Funzie told police that he was wearing a white “wife-beater”

undershirt, black jeans, a black hat, and red tennis shoes on the day of the murder. They

both also told officers that he drove a green Cavalier automobile, and Funzie identified

his vehicle on the videotape as it pulled into the parking lot of the EZ Store. The

surveillance video depicts a male wearing the aforementioned clothing step out of the

-18-

above-described vehicle and walk away. The male then hastily changed directions and

ran in front of the vehicle while chasing the victim around the corner of the building.

When the male wearing Funzie‟s clothing returned to the vehicle, another individual

jumped into the passenger seat, and they fled the area. Ms. Carlton identified Boyd and

Funzie on the video. Witnesses Guy and Miller testified that Boyd exited a green or

turquoise Cavalier and that he left the scene in the same vehicle. After being shown the

video, Funzie told officers that “y‟all can just take me to jail,” which a jury could

reasonably infer as an admission. Upon this evidence, a jury could have found that

Funzie acted with the intent to promote or assist Boyd in the commission of first degree

murder and was therefore guilty of first degree murder based on the theory of criminal

responsibility for conduct of another.

B. Admission of Evidence

Boyd contends that the trial court erred in admitting testimony concerning the

altercation between the victim and Boyd on the Saturday night prior to the murder.

1. Standard of Review

The determination of whether evidence is relevant and admissible at trial is a

matter left to the sound discretion of the trial court and will not be reversed absent an

abuse of that discretion. State v. Dellinger, 79 S.W.3d 458, 485 (Tenn. 2002); State v.

McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). “Relevant evidence” is “evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Tenn. R. Evid. 401. All relevant evidence is admissible unless specifically

excepted by constitution, statute, rules of evidence, or rules of general application. Tenn.

R. Evid. 402. One such exception is that relevant evidence may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. “Unfair

prejudice” is “„[a]n undue tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.‟” State v. Banks, 564 S.W.2d 947, 951 (Tenn.

1978) (quoting Tenn. R. Evid. 403, Adv. Comm. Note).

2. Evidence of Prior Altercation

Boyd contends that Mr. Henderson‟s testimony regarding the evidence of the prior

altercation between Boyd and the victim should not have been allowed. He claims that it

was irrelevant and that Mr. Henderson‟s identification of Boyd was equivocal and

tainted. As such, he maintains that “all testimony regarding Saturday night‟s altercation

should have been stricken.”

-19-

We conclude that the trial court properly admitted Mr. Henderson‟s testimony

regarding the prior altercation as being relevant to the issue of premeditation. See, e.g.,

State v. Smith, 868 S.W.2d 561, 578 (Tenn. 1991) (affirming that evidence defined in

Tennessee Rule of Evidence 404(b) is admissible if it “is relevant to establish intent,

deliberation and premeditation”). With regard to Mr. Henderson‟s identification of Boyd,

the trial court properly submitted the issue to the jury for determination, stating that the

jury could attribute it with “whatever weight [the jury] want[ed] to give it.” We agree

with the trial court that it was within the province of the jury to weigh Mr. Henderson‟s

identification of Boyd and to give it such credence as it deemed proper.

Moreover, Boyd makes an inferential leap between his challenges to Mr.

Henderson‟s testimony and identification of Boyd to the contention that “all testimony”

regarding the altercation should have been stricken. He makes no argument concerning

the inadmissibility of the remaining witnesses‟ testimony to the altercation and the

testimony of individuals who were familiar with Boyd. As noted above, the evidence

was relevant to establish premeditation and was properly admitted. Boyd is not entitled

to relief on this claim.

3. Forty-Eight-Hour Hold/Recorded Jail Conversations

Boyd claims that evidence collected in violation of State v. Bishop, 431 S.W.3d 22

(Tenn. 2014), and Gerstein v. Pugh, 420 U.S. 103 (1975), as a result of his being held on

a forty-eight-hour hold should have been suppressed.

The law requires that when a person is arrested without a warrant, he or she must

be brought “before a magistrate to „seek a prompt judicial determination of probable

cause.‟” Bishop, 431 S.W.3d at 42 (quoting Gerstein, 420 U.S. at 125 (holding that “the

Fourth Amendment requires a timely judicial determination of probable cause as a

prerequisite to detention”)); see also State v. Huddleston, 924 S.W.2d 666, 672 n.2 (Tenn.

1996). Tennessee Rule of Criminal Procedure 5(a)(1) provides that “[a]ny person

arrested—except upon a capias pursuant to an indictment or presentment—shall be taken

without unnecessary delay before the nearest appropriate magistrate.” The Tennessee

Supreme Court has recently stated that “a delay of less than forty-eight hours is

presumptively reasonable” and that when the delay exceeds forty-eight hours, the State

must show that “„a bona fide emergency or other extraordinary circumstance‟ caused the

delay.” Bishop, 431 S.W.3d at 42 (quoting County of Riverside v. McLaughlin, 500 U.S.

44, 56 (1991)). Nonetheless, even a delay of less than forty-eight hours may be

unreasonable “if the delay is „for the purpose of gathering additional evidence to justify

the arrest‟ or if the delay is „motivated by ill will against the arrested individual, or delay

for delay‟s sake.‟” Id. (quoting McLaughlin, 500 U.S. at 56). “Courts cannot ignore the

often unavoidable delays in transporting arrested persons from one facility to another,

handling late-night bookings where no magistrate is readily available, obtaining the

-20-

presence of an arresting officer who may be busy processing other suspects or securing

the premises of an arrest, and other practical realities.” McLaughlin, 500 U.S. at 56-57.

The remedy for failing to bring an arrestee before a magistrate without

unnecessary delay is exclusion of “any evidence obtained by virtue of a suspect‟s

unlawful detention,” unless an exception to the exclusionary rule applies. Bishop, 431

S.W.3d at 42 (citing Huddleston, 924 S.W.2d at 673-75). However, “when a suspect is

arrested based on probable cause, the ensuing detention is typically not illegal until it

„ripens‟ into a Gerstein violation.” Id. (citing Huddleston, 924 S.W.2d at 675).

“Obviously, if [an arrestee‟s] statement was given prior to the time the detention ripened

into a constitutional violation, it is not the product of the illegality and should not be

suppressed.” Huddleston, 924 S .W.2d at 675.

Initially, we note several faults with Boyd‟s argument. First, Boyd has failed to

prove the existence of a delay in charging him with first degree murder that was either

presumptively unreasonable in length or that could be characterized as being made for the

purpose of gathering additional evidence or “delay for delay‟s sake.” Bishop, 431

S.W.3d at 42 (internal quotation marks omitted). The only “proof” he presented that he

was held in excess of forty-eight hours was a copy of his arrest ticket that was appended

to his brief. This court has repeatedly held that documents appended to appellate briefs

that were not admitted to the trial court do not constitute evidence. See Tenn. R. App. P.

24(g); Grover L. Dunigan v. State, No. E2005-01574-CCA-R3-PC, 2006 WL 433699, at

*3 (Tenn. Crim. App. Feb. 23, 2006).

Second, Boyd neither filed a motion to suppress any allegedly illegally obtained

evidence nor contemporaneously objected to the introduction of any such evidence.

Boyd had a duty to mitigate any perceived error by either filing said motion and/or

objecting at trial. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as

requiring relief be granted to a party responsible for an error or who failed to take

whatever action was reasonably available to prevent or nullify the harmful effect of an

error.”).6

Third, Boyd states that “the lack of probable cause coupled with the

unconstitutional 48-hour hold renders [his] statement invalid.” Our review of the record

indicates that Boyd did not give a statement that was admitted into evidence. Fourth,

Boyd cites a dearth of evidence against him; however, Lieutenant Murray summarized

the evidence in support of Boyd‟s detention that police had amassed thus far in the

6

However, because Bishop criticized this court‟s failure to employ a plain error review of a

Gerstein violation, despite the fact that the same conclusion would have been reached, we will

nonetheless consider whether Boyd‟s issue is reviewable for plain error. Bishop, 431 S.W.3d at 45; Tenn.

R. App. P. 36(b).

-21-

investigation: “[Narvin Boyd‟s] brother had been implicated; the name “Travis” had

been given to police by eyewitnesses to the crime; Boyd matched the description of the

suspect that had been supplied to the police; and, officers verified the relationship

between Narvin Boyd and Travis Boyd.” Fifth, Boyd asserts that as in the Bishop case,

“the State offered no other proof at trial that the appellant was at the scene of the crime or

even fired the shots that killed the victim.” This statement is rife with inconsistencies.

Indeed, the State offered a plethora of proof in the form of video surveillance and

eyewitness testimony that established that Boyd was at the scene and that he fired the

fatal shots.

In fact, the only “evidence” to which Boyd points as having been admitted in

violation of Bishop and Gerstein were the recorded jail conversations. Our analysis

necessarily involves a determination of whether the police had probable cause to arrest

him. As fully set forth above, Lieutenant Murray reviewed the probable cause supporting

Boyd‟s arrest. We conclude that because the police had probable cause to arrest Boyd at

or near the time of his detention, his jail recordings were not introduced in violation of

Bishop and Gerstein.

A further examination of the grounds asserted by Boyd for exclusion of the

recorded jail conversations does not fall within the purview of Bishop that mandates plain

error review. As an additional basis for relief, Boyd asserts that he “made further

objections at trial that the recording should not be admitted because they were offered in

pieces.” This statement is inaccurate; in fact, counsel expressly agreed with the trial

court‟s ruling, stating that he “did not have a problem with the court‟s ruling as to the jail

phone calls.” Prior to the recordings being played for the jury, the trial court asked if

counsel wanted the entire conversations played. Boyd‟s counsel responded, “I‟m tired of

phone calls. Whatever they play, they play,” thus assenting to the trial court‟s decision.

Moreover, at the hearing on the motion for new trial, counsel acknowledged that he never

objected to playing the recordings in a piecemeal fashion because it was his position that

he did not want the tapes played in their entirety. Boyd may not assert one ground for

relief in the trial court and then pursue a new or different theory on appeal. State v.

Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994). In this case, Boyd has

failed to establish the need for plain error review and has failed to cite any legal authority

regarding this issue in his appellate brief. See Tenn. R. App. P. 36(b); Tenn. Ct. Crim.

App. R. 10(b). Therefore, Boyd has waived this issue for failure to object

contemporaneously and for preparing an inadequate brief. Tenn. Ct. Crim. App. R. 10(b);

Banks, 271 S.W.3d at 132. He is without relief on this claim of error.

Funzie asserts that his jail recordings were inadmissible because they were not

properly authenticated. The trial court held a jury-out hearing and concluded that the jail

record keeper had properly authenticated the telephone calls. Accordingly, the trial

court‟s ruling is subject to a review for abuse of discretion.

-22-

Tennessee Rule of Evidence 901(a) provides that “[t]he 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.” State v. Morris Marsh, No. E2013-01343-CCA-

R3-CD, 2014 WL 4366087, at *14 (Tenn. Crim. App. Sept. 4, 2014). Subsection (b) of

Rule 901 lists “[b]y way of illustration only, and not by way of limitation,” examples of

authentication that would satisfy the evidentiary requirement. One such method is

“[i]dentification of a voice . . . by opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker.” Morris Marsh, 2014 WL 4366087,

at *14 (citing Tenn. R. Evid. 901(b)(5)). An additional method was approved by our

court in State v. Hinton, 42 S.W.3d 113, 127 (Tenn. Crim. App. 2000), wherein this court

held that “an audio recording of a 9-1-1 phone call had been properly authenticated when

the custodian of the recording explained the process by which the recording was

„processed and retrieved,‟ stated the time and date of the phone call, and the address

associated with the phone number from which the phone call originated.” Morris Marsh,

2014 WL 4366087, at *14.

In this case, Officer Juaquatta Harris testified with regard to the procedures

utilized in recording and authenticating jail telephone calls. The trial court did not abuse

its discretion in admitting the recorded telephone calls.

4. Statements of Ms. Carlton and Mr. Miller

Funzie argues that the trial court erred in admitting the statements of Ms. Carlton

and Mr. Miller as substantive evidence. The State responds that the trial court committed

no error.

a. Andrea Carlton

Funzie asserts that evidence of Ms. Carlton‟s intoxication during the time she gave

her statement should have rendered her statement inadmissible.

According to the record, the trial court held a hearing and determined by a

preponderance of the evidence that Ms. Carlton‟s statement was given under

circumstances indicating trustworthiness. Accordingly, pursuant to Tennessee Rule of

Evidence 803(26), Ms. Carlton‟s statement was admissible as substantive evidence. The

rule provides a hearsay exception allowing a witness‟s prior inconsistent statement to be

introduced as substantive evidence if it is otherwise admissible under Tennessee Rule of

Evidence 613, the declarant testifies at trial and is subject to cross-examination, the

statement was written and signed by the affiant or given under oath, and the trial court

conducts a jury-out hearing and determines by a preponderance of the evidence that the

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statement was given under circumstances indicating trustworthiness. Each of these

procedural hurdles was met in this case.

As to Ms. Carlton‟s claim of intoxication, Lieutenant Murray provided conflicting

evidence, stating that according to her trained observation, Ms. Carlton was not under the

influence of an intoxicant. To the contrary, it would have “surprised” Lieutenant Murray

if Ms. Carlton had been under the influence. The trial court did not abuse its discretion in

allowing Ms. Carlton‟s statement to be introduced as substantive evidence.

b. Zaviaus Miller

Funzie argues that Mr. Miller‟s statement was improperly admitted as substantive

evidence because he consistently maintained that his statement was involuntary and that

he signed the statement under threat of prosecution.

Consistent with the requirements of Tennessee Rule of Evidence 803(26), the trial

court held a jury-out hearing and heard the testimony of Lieutenant Mullins, who took

Mr. Miller‟s statement. The trial court determined by a preponderance of the evidence

that the statement was given under circumstances indicating trustworthiness. The trial

court heard conflicting testimony from Lieutenant Mullins and Mr. Miller and made a

credibility determination that we will not second-guess. Upon the record before us, we

cannot say that the trial court abused its discretion in admitting Mr. Miller‟s statement as

substantive evidence.

C. Denial of Boyd‟s Motion to Suppress

Boyd contends that he was taken to the crime scene after his arrest for the purpose

of officers‟ conducting a “show-up” identification of him and that the trial court erred in

denying his motion to suppress on this ground. However, the record belies this

contention.7 Each officer who testified with regard to Boyd‟s presence at the crime scene

vehemently denied that appellant was transported to the scene for that purpose.

Lieutenant Murray confirmed that appellant was never removed from the police squad car

and that no one was permitted to “view” him while he was inside the vehicle. Moreover,

no trial testimony was elicited from any eyewitness indicating he or she made an

7

As noted above in the summary of the hearing on Boyd‟s motion to suppress, that hearing was

apparently a continuation of a prior hearing, which is not included in the appellate record. Boyd makes

reference to “testimony” that was allegedly taken at the prior hearing. In addition to failing to include a

transcript of the motion to suppress that Boyd references, he also failed to support this issue with citations

to the record or citation to legal authorities, both of which result in waiver of the issue on appeal.

Nonetheless, we have addressed this issue for the sole purpose of clarifying that this issue is factually

moot, as explained herein.

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identification of Boyd while he was in the car in police custody. This position is

unsupported by the evidence and affords Boyd no relief.

Without further argument, Boyd also summarily asserts that “the untruthful and

intentionally misleading testimony by the witnesses[] Ryan Henderson, Cory Hemphill,

Alvin Shaw, Michael Pitts[,] and Courtney Guy makes their respective identifications

highly untrustworthy” due to the varying details of their testimony. This issue of

credibility presents a matter of fact for the jury, which we will not second-guess or

revisit. Dorantes, 331 S.W.3d at 379. Boyd is not entitled to relief on this basis.

D. Discovery/Brady v. Maryland Violation

Boyd takes issue with the discovery provided by State, claiming that the State

denied him copies of certain documents and that he received no discovery from the State

regarding the recovery of a 9mm handgun. Decisions regarding pretrial discovery are

inherently discretionary and are, thus, reviewed using the “abuse of discretion” standard

of review. Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

At the hearing on the motion for new trial, the State maintained that it offered

Boyd open-file discovery in this case and that counsel would initial the evidence as proof

he had reviewed it. The State argued that it ceased open-file discovery when counsel

declined to initial any further evidence. Even so, in a pre-trial hearing, the State asserted

that it had provided Boyd with all discovery due him. The trial court concluded that the

State complied with the rules of discovery. No evidence has been presented to refute the

trial court‟s exercise of its discretion in denying relief on this issue at the motion for new

trial hearing. Boyd is not entitled to relief on this claim.

With regard to his claims under Brady v. Maryland, 373 U.S. 83 (1963), Boyd

asserts that he “proceeded to trial where there was evidence of gunshot residue test kits, a

Ruger [Luger] 9 millimeter handgun and [five] spent shell casings [that] were never

tested.” This court summarized the application of Brady as follows:

In Brady v. Maryland, the Supreme Court held that “suppression by

the prosecution of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or to punishment,

irrespective of good faith or bad faith of the prosecution.” In United States

v. Bagley, the Supreme Court held that both exculpatory and impeachment

evidence fall under the Brady rule.

Before an accused is entitled to relief under this theory, he must

establish several prerequisites: (a) the defendant requested the information,

unless the information was obviously exculpatory; (b) the prosecution must

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have suppressed the evidence; (c) the evidence suppressed must have been

favorable to the accused; and (d) the evidence must have been material.

....

Evidence is considered material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the results

of the proceeding would have been different. In Kyles, the United States

Supreme Court explained that “a showing of materiality does not require

demonstration by a preponderance that disclosure of the suppressed

evidence would have resulted ultimately in the defendant‟s acquittal . . . .”

Rather, the question is whether the defendant received a fair trial,

“understood as a trial resulting in a verdict worthy of confidence,” in the

absence of the suppressed evidence. In order to prove a Brady violation, a

defendant must show that “the favorable evidence could reasonably be

taken to put the whole case in such a different light as to undermine

confidence in the verdict.” The Court in Kyles urged that the cumulative

effect of the suppressed evidence be considered to determine materiality.

Thus, the materiality of the suppressed evidence must be evaluated within

the context of the entire record as to how it impacts the innocence or guilt

of the accused.

Jordan v. State, 343 S.W.3d 84, 96-97 (Tenn. Crim. App. 2011) (internal citations

omitted).

Boyd‟s Brady claims fail for several reasons. Boyd has failed to establish that the

gun was exculpatory, which would have mandated automatic disclosure by the State.

Moreover, Boyd had open-file access to the State‟s file until he declined to initial the

discovery he viewed. He cannot establish the first prong of Brady. Likewise, he has not

shown that the State suppressed the information. Moreover, without any evidence about

the ownership of the gun, where the gun was discovered, or the method by which it was

discovered, it cannot be said that the gun was favorable to the defense. Finally, the trial

court noted that the issue of a handgun was not litigated; it noted that the gun that was

tested was not the murder weapon and that no ballistics evidence was presented at trial.

Boyd cannot show that evidence with regard to the handgun was material. He is not

entitled to relief on this claim.

CONCLUSION

Based on the record as a whole, the briefs of the parties, arguments of counsel, and

applicable legal authority, we affirm the judgments of the trial court.

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________________________________

ROGER A. PAGE, JUDGE

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