State of Tennessee v. Dominique Greer

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 17, 2016 Session

STATE OF TENNESSEE v. DOMINIQUE GREER

Appeal from the Criminal Court for Hamilton County

No. 277886 Rebecca J. Stern, Judge

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No. E2015-00922-CCA-R3-CD – Filed May 17, 2017

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Defendant, Dominique Greer, was convicted of first degree felony murder and attempted

especially aggravated robbery. He received a life sentence for felony murder and eight

years for attempted especially aggravated robbery to be served concurrently to the

sentence for felony murder. On appeal, Defendant argues: (1) the trial court erred by

admitting evidence of a prior robbery; (2) the trial court erred by instructing the jury that

it could consider the prior robbery for issues other than intent and identity; (3) the trial

court erred by allowing Detective Merritt to testify concerning Defendant’s cell phone

records; (4) the trial court erred by overruling Defendant’s motion to suppress; (5) the

trial court erred by allowing a constructive amendment to the felony murder indictment;

(6) the evidence was insufficient to support Defendant’s felony murder conviction; and

(7) there was cumulative error. Following our review, we reverse the judgments of the

trial court because the trial court committed reversible error in its final charge to the jury.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Criminal Court Reversed and Remanded

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JAMES

CURWOOD WITT, JR., J., joined. D. KELLY THOMAS, JR., J., filed a concurring opinion.

Jay Underwood, Chattanooga, Tennessee, (on appeal) and Daniel J. Ripper, Chattanooga,

Tennessee, (at trial) for the appellant, Dominique Greer.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; M.

Neal Pinkston, District Attorney General; and Lance Pope and Kristen Spires, Assistant

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

OPINION

Background

404(b) Hearing

Steve Carroll testified that he is an architect and partner at Rardin and Carroll

Architects located on Preservation Drive in an industrial park. The business is located

one block from Bonny Oaks Drive. Mr. Carroll testified that on July 21, 2010, at

approximately 5:20 p.m. he was the last person to leave the business that day. As he was

placing his laptop, briefcase, and other items in the back of his car, he heard someone say

“give me your wallet and your cell phone.” Mr. Carroll turned around and saw

Defendant dressed entirely in black standing approximately five feet away with a gun

pointed at Mr. Carroll. Mr. Carroll immediately pulled out his wallet and cell phone and

placed them on the ground. He told Defendant, “you can have anything you want just

please don’t shoot me.” The gun appeared to be a “silver aluminum colored automatic.”

Defendant picked up the items and asked Mr. Carroll if he had anything else. Mr. Carroll

told him, “I’ve got my laptop, I’ve got my car, here are my keys if you want to take it,

that’s fine. Again, just don’t shoot me.” Defendant looked at him and said, “[Y]ou seem

like a nice guy, I’m not going to hurt you.” Defendant then ran off toward Jersey Pike.

Mr. Carroll got into his car and drove to an adjacent office where he used the phone to

dial 9-1-1.

Mr. Carroll later received his cell phone bill which reflected that three calls were

made from his phone after the robbery; he did not recognize the numbers. Mr. Carroll’s

wallet and some of its contents were later recovered by the Hamilton County Sheriff’s

Office. On September 17, 2010, Mr. Carroll identified Defendant from a photograph

lineup shown to him by a detective.

Detective Jeff Baker of the Hamilton County Sheriff’s Department testified that on

August 30, 2010, he searched a wooded area near Defendant’s grandmother’s apartment

which was located on Bonny Oaks Drive, within a mile from where the robbery of Mr.

Carroll occurred. He had received information that a gun used in the victim’s homicide

may be located inside a sock hidden behind the apartment complex. While looking for

the weapon, Detective Baker found Mr. Carroll’s wallet lying on the ground by one of the

trees outside the complex. He also found two black t-shirts. On cross-examination,

Detective Carroll testified that he had been told that Defendant lived in the apartment

complex with his grandmother, Odessa Moon. Detective Carroll admitted that he did not

know who put the wallet behind the complex.

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Trial

On July 21, 2010, Charles Moore, the murder victim’s father, was living on Shady

Hollow Lane in Chattanooga with the victim and the victim’s mother, and Mr. Moore’s

wife, Angela Moore. The victim, twenty-one-year-old Darrian Moore, was not home

when Mr. Moore arrived home from his work at Tennessee Valley Authority that

evening. Mr. Moore explained that the victim worked a part-time evening shift loading

trucks for FedEx. The victim usually left the house at approximately 4:30 to 5:00 p.m. to

go to work, and he normally arrived home between 10:00 and 11:00 p.m. Mr. Moore

testified that the Wood family lived on Lone Hill Road. Mr. Moore could see the Wood’s

residence from his house, and their back yards were close to one another. He said that

Frank Wood, who lived at the Lone Hill Road residence with his grandparents, and the

victim knew each other, and Mr. Wood had been inside Mr. Moore’s residence. Mr.

Moore testified that he had no knowledge of Defendant ever being inside his house, and

he had never seen the victim and Defendant together.

Mr. Moore testified that on the night of July 21, 2010, he was in the sunroom

updating his computer when he saw the victim back into the driveway and park his white

Impala. He said that it was not unusual for the victim to sit in his car after arriving home

to listen to music or to talk on the phone to his friends. Mr. Moore testified that he heard

a “pop” after the victim arrived home but he thought that the sound was of the victim

throwing trash into the empty dumpster. He noted that the family’s Rottweiler was also

barking “in a vicious tone.” Mr. Moore looked outside toward the dog’s pen but did not

see anything. At some point, the victim called the house, and Mrs. Moore answered the

phone. The victim said “mamma” twice and hung up. Mrs. Moore walked downstairs

and told Mr. Moore that she thought something was wrong because the victim “didn’t

sound right.” Mrs. Moore had also attempted to call the victim back but he did not

answer the phone. Mr. Moore testified that he assured Mrs. Moore that the victim was in

the driveway and was “probably just talking on the phone and not switching over[.]”

Mrs. Moore then walked out to the garage, raised the door, and “flipped the lights a

couple of times,” which was the victim’s signal to come inside, but he did not do so. Mr.

Moore testified that Mrs. Moore walked back inside the house and told him that the

victim’s car was still running and that he would not answer the phone. Mr. Moore then

ran outside to see what was going on. He found the victim in the passenger seat of the

car with a gunshot wound to his left temple. Mr. Moore noted that he had never seen

Defendant sitting in the passenger seat when parked in the driveway listening to music.

Mr. Moore instructed Mrs. Moore to go inside and dial 9-1-1, and he got into the car and

drove the victim to Memorial Hospital. The victim was later transferred to Erlanger

Hospital where he died.

-3-

Mr. Moore testified that the victim was paid weekly by direct deposit from FedEx,

and the victim had an ATM card to his checking account. Mr. Moore also had access to

the checking account. He helped the victim save some money by leaving enough money

in the victim’s checking account to cover his bills and “$50 for him to waste.” Mr.

Moore transferred the rest to the victim’s savings account. The victim did not have

access to the savings account because Mr. Moore did not want the victim to “spree”

spend it. He thought that the victim had approximately $1100 to $1200 in the account at

the time of his death.

On cross-examination, Mr. Moore testified that the victim thought he and Wood

were friends. However, he said that the victim and Wood had a falling out after they

were pulled over by police “on Fraizer Avenue during Riverbend.” The incident

happened sometime in June of 2010.

Dwight Turner testified that in July of 2010, he was seventeen years old and lived

at Lakeshore Manor with his father and step-mother. He knew Frank Wood and

Defendant who was also known as “Head.” Mr. Turner testified that he was familiar with

the victim, and he had been at the victim’s home “[o]ne particular time.” He said that at

some point in July of 2010, he was part of a conversation with Defendant and Mr. Wood

about robbing the victim. The conversation took place in the “front of [Defendant’s]

yard.” Mr. Turner testified there was talk about the “need to come up with $1500” for a

“mix tape” for Defendant’s brother “Boochie.” Mr. Turner testified that it was Mr.

Wood’s idea to rob the victim because Mr. Wood knew that the victim worked and that

the victim was saving his money. Mr. Turner said, “I believe that he showed Franklin his

bank statements or, you know, receipts or something showing that he had money in the

bank.” Concerning the robbery, Mr. Turner testified:

At first [Defendant] suggested that, you know, with me being kind of

stocky wise and or whatever he suggested that I [hold] the weapon to

him, you know, while he was at his driveway, demanding him get out of

the car, move over, to be placed in the back seat with something

covering him so that he couldn’t see anything, and drive to the bank and

get him to tell the code to the ATM to withdraw the money out of the

bank.

It was Mr. Turner’s understanding that the victim had approximately $3,000 in the

bank. He said that because the victim knew Mr. Wood and his voice, Wood planned to

“be in the back seat or in the front, wherever that he was going to sit, he didn’t want to be

seen or heard, his voice heard.” Because Mr. Turner did not “want to do none of it,

Defendant said that he would hold the weapon during the robbery and that “he would just

pretty much have him at gunpoint with fear for his life so he wouldn’t see what was

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going on or do anything.” Mr. Turner testified that after the robbery, the plan was to drop

Defendant off and drive the car to a chop shop in Atlanta, Georgia. Mr. Turner testified

that the robbery was originally supposed to take place the Friday before the murder

occurred on Wednesday, July 21, 2010. Mr. Turner testified that he had planned to buy

school clothes with his share of the proceeds from the robbery. He said that Defendant

planned to use his share to help his brother produce the mix tape. Mr. Turner did not

know what Mr. Wood planned to do with his money, even though Mr. Turner testified

about having a conversation with Mr. Wood in which Mr. Wood talked about what he

wanted to do with the proceeds.

Mr. Turner testified that he left his father’s house due to a disagreement and was

staying with Edward “EJ” King. Mr. King’s house and Defendant’s mother’s residence

were in the same neighborhood. Mr. King also lived one neighborhood over from the

victim’s house and Mr. Wood’s house. Mr. Turner testified that while at Mr. King’s

house, Mr. Turner and Wood had another conversation about the robbery. He said that

Mr. King’s cousin, Mr. King, “Cornelius,” Angel Kilgore, and another female were also

at the house at the time. Mr. Turner testified that he and Mr. Wood had been drinking,

and he thought that Mr. Wood was drunk. He said that Mr. Wood was talking about what

he wanted to do with the proceeds from the robbery, and Mr. Turner indicated that he

wanted to buy school clothes. Mr. Turner did not like Mr. Wood discussing the robbery

in front of others, and he eventually said, “I’m not doing it, brother.” Mr. Turner testified

that he told Mr. Wood that he “feared” Mr. Wood and the victim would become friends

again, and Mr. Wood would “snitch” on them, which made Mr. Wood mad because the

others were listening. Mr. Wood eventually calmed down, and he and Mr. Turner

apologized to each other. Mr. Turner testified that he told Mr. Wood that he did not want

him to participate in the robbery. However, Mr. Turner said that he could not talk to

Defendant because Defendant “pretty much had his mind made up.”

Mr. Turner testified that thirty to forty-five minutes later, Defendant arrived at Mr.

King’s residence in a car with a few other men. Defendant was not driving the vehicle.

Mr. Turner testified that Defendant got out of the car and said that he had been trying to

call Wood all day. Defendant also indicated that he wanted to rob the victim that night.

Mr. Turner testified that Mr. Wood told Defendant that he could not go with Defendant

because Wood had to go home because of his curfew. Mr. Turner said that he told

Defendant that he was too intoxicated to go with Defendant. He did not see Defendant

with a gun at the time. Mr. Turner testified that Defendant left, and Mr. Wood asked Mr.

Turner to walk home with him. They saw Defendant at someone else’s house as they

walked up the hill. Mr. Turner testified that Defendant said, “[S]ee I told y’all I got a

plan, brother, I told you.” Mr. Turner testified that he left Mr. Wood at “Kailey’s” house,

and she and “Tracy” were going to drive Mr. Wood home. Mr. Turner then walked back

to Mr. King’s house and spent the night.

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Mr. Turner testified that he spoke with Mr. Wood the following day at

approximately 12:30 to 1:00 p.m. because Mr. Wood had left his iPod at Mr. King’s

house. Mr. Wood picked up the iPod, and Mr. Turner asked Mr. Wood about the

robbery. Mr. Wood said he did not do it because he had curfew, and his grandmother

was upset because he was drunk. Defendant later called Mr. Turner and told him he

thought that he had murdered the victim. Defendant said that the victim began “tussling”

with him and the gun “went off.” Mr. Turner then talked to Mr. Wood, who said that the

victim was sitting in the driveway with the car still running. The following day, Mr.

Turner saw Defendant riding his bicycle. Mr. Turner testified:

Like, well, I left the neighborhood to where the murder occurred. And

he was, like, bro, I was like bro, you need to go home, bro. You know

what I’m saying, it’s taped up. He like, brother, I think I murdered him,

but I didn’t mean to, though, brother. And he proceeded to say that, you

know, he didn’t trust nobody no more. He was like anybody who say

something, brother, I got somebody who will take them off the map.

Which that’s saying that he would kill them. No witnesses, no nothing.

After the murder, Mr. Wood asked Mr. Turner to tell police that Mr. Wood had given him

some clothing. Mr. Wood also wanted Mr. Turner to be his alibi and tell police that they

met on the rock road by Mr. Wood’s house at approximately 9:30 to 10:00 p.m. to

exchange tennis shoes and a t-shirt. Mr. Turner told Mr. Wood that he did not want to

get involved.

On July 22, 2010, Mr. Turner spoke with Detective Gienapp from the Hamilton

County Sheriff’s Department and gave a statement. Mr. Turner admitted that he lied to

Detective Gienapp in the statement because Mr. Turner was in “fear of [his] life” and did

not want to be involved. Mr. Turner gave a second statement to police on July 27, 2010,

in the presence of Detective Van Hinton. Detective David Sowder, Mr. Turner’s father,

and Mr. Turner’s Uncle, Sergeant Darrel Turner of the Hamilton County Sheriff’s

Department were also present during the statement. Mr. Turner testified that his father

and uncle told him to tell the truth. He told the detectives the information as to who was

to be involved in the robbery and how the proceeds would be split up.

Franklin Wood testified that he pled guilty to facilitation of especially aggravated

robbery in the present case. He and the victim had been friends and they would hang out

“mostly every day.” Mr. Wood testified that in July of 2010, he lived on Lone Hill Road,

and his backyard connected to the victim’s backyard. He had been inside the victim’s

house and in his car. Mr. Wood testified that he and the victim went to Riverbend

together in 2010 to watch the fireworks. At some point, they were pulled over, and the

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police found “brown paper doggie [sic] bags and residue marijuana [sic] all over the car.”

After that, Mr. Wood and the victim did not hang out as much because Mr. Wood felt that

the victim blamed him for what happened. Mr. Wood testified that he and the victim had

an altercation when he got a phone charger back from the victim. He said that

approximately two weeks after the fireworks display the victim also flipped him “the

bird” from his driveway. Mr. Wood, who was standing on his balcony, lost his temper,

walked over to the victim’s house, and they had a fight. He did not speak to the victim

again after the fight.

Mr. Wood testified that he and Defendant were both friends with Dwight Turner.

He said that a year or more prior to the victim’s murder, there was a conversation with

Defendant about burglarizing the victim’s house in order to steal guns. At the time, Mr.

Turner was living at Lakeshore Manor. Mr. Wood testified that just prior to the victim’s

murder, Mr. Wood was at a gathering at Edward King’s house with Mr. Turner, Mr.

King, Ms. Kilgore and her friend, two of Mr. King’s cousins, and one of Mr. Turner’s

friends. Mr. Wood testified that he and Mr. Turner were drinking, and Mr. Wood was

drunk. At some point, Mr. Wood was in the kitchen with Mr. Turner, Mr. King, Ms.

Kilgore, and her friend when Mr. Turner said that if something happened to the victim,

Mr. Wood would be a “snitch.” Mr. Wood testified that he knew there was a plan to rob

the victim and that Defendant and Mr. Turner were involved. Mr. Wood said that he did

not have a role in the robbery that was supposed to occur that day. He testified that there

was a discussion about taking guns but he did not hear anything about taking money or

going to the victim’s bank.

Mr. Wood testified that Defendant arrived at Mr. King’s house at approximately

9:00 p.m. with some friends. He said that Defendant had a gun resting on his lap, and

Mr. Wood did not get into the car with Defendant and the others because Mr. Wood had

to be in for curfew in an hour. Mr. Wood testified that when Defendant told Mr. Turner

to get into the car, Mr. Turner began crying and said that he did not want to get in trouble.

Mr. Wood testified that when Defendant saw Mr. Turner “crying and acting crazy he took

off.” Mr. Wood got a ride home, and Mr. Turner spent the night at Mr. King’s house.

Mr. Wood testified that on the day of the murder Defendant texted him and said

that he needed some shoes and a shirt. Mr. Wood then called Defendant who said that he

had robbed someone on “58.” The State introduced Mr. Wood’s cell phone records from

July 21, 2010. Mr. Wood acknowledged that he sent Defendant a text message at 9:03

p.m. telling Defendant to stop by his house before 9:30 because his probation officer

would be calling at 9:45 p.m. At approximately 9:13 p.m., Defendant texted that he was

near “Booker T.” and he asked if Mr. Wood had the shoes. Mr. Wood met Defendant at

the bottom of the hill near Mr. Wood’s house. Defendant said that he had robbed a “white

guy on 58 at the liquor store.” Defendant also said that during the robbery, the victim

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said that he had “kids and everything.” Mr. Wood testified that Defendant “flashed the

money that he took from the guy,” and Mr. Wood saw that Defendant had a gun. Mr.

Wood also noted that Defendant was barefoot, and he was wearing a black t-shirt with a

Superman emblem on it.

Mr. Wood testified that he and Defendant walked to the corner of the street where

the victim lived, and Defendant asked, “[W]here your boy at[?].” They both looked

toward the victim’s house and saw that the victim was not at home. Mr. Wood testified

that he told Defendant that it was time for Mr. Wood to be home for curfew, and he left.

He noted that he left Defendant standing in his next door neighbor’s yard. He said, “All

of our yards, my house and [the victim’s] house and my next door neighbor’s, all three of

our back yards intersect.” Mr. Wood testified that he knew what Defendant planned to

do because Defendant “had a gun and he robbed somebody before and I knew I guess

when he was over there that he was going to do it.” Mr. Wood said that he walked back

home and did not call police because he was only worried about himself. Mr. Wood

testified that he later missed three calls from Defendant while Mr. Wood was eating

dinner with his family. He called Defendant back at approximately 10:00 p.m., and

Defendant asked if the police were there. Mr. Wood told him no and asked why.

Defendant said, “[Y]ou ain’t seen from me, you ain’t heard from me. And he just hung

up.”

Mr. Wood gave statements to law enforcement on July 22 and July 23, 2010. He

did not mention Defendant’s name during either of the statements because he was “just

afraid of the whole situation.” Mr. Wood told them that he met Mr. Turner to give him

some shoes because that is what Mr. Turner told him to say. He said that he never met

Mr. Turner to give him any shoes and that he gave the shoes to Defendant. Mr. Wood

admitted that he told detectives that he did not know anything about the murder. Mr.

Wood and Defendant were later arrested on July 29, 2010. Both were juveniles at the

time. Mr. Wood testified that the following day while in juvenile court, Defendant told

him that the victim was “bucking the whole time and he knew [the victim] knew who he

was and [the victim] tried to go for the keys and his head hit the gun and it went off.”

Mr. Wood then told his attorney what Defendant told him. Mr. Wood testified that he did

not shoot the victim or accompany Defendant to the victim’s house on the night of the

robbery. He also said that he did not give any information to Defendant about the

victim’s bank accounts or where he banked.

However, during a recorded call on July 27, 2010, Mr. Wood told Mr. Turner that

he did not set up a “murder.” He did not know that the call was being recorded. He also

told Mr. Turner that he told Defendant where the bank was at and that it was the one by

the mall and that Defendant planned to “sit out there until [the victim] got off.” Mr.

Wood then told Mr. Turner, “[Y]ou need to come to my aid, we need to tell[.]” Mr.

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Wood testified that he knew that Defendant was going to rob the victim when he left

Defendant standing near the victim’s house, because Defendant had a gun, and he robbed

somebody before.

On cross-examination, Mr. Wood acknowledged that he was required to testify as

part of his plea agreement. He admitted that he lied in the first statement to police when

he denied any knowledge of the plan to rob the victim. He was indicted on October 13,

2010, and he hired an attorney early in 2011 and received the State’s discovery materials.

Mr. Wood admitted that in November of 2012, he gave his first statement that was

consistent with the State’s allegations. In the statement, Mr. Wood stated that Mr. Turner

brought up the idea of robbing the victim. Mr. Wood described seeing Defendant at the

party with a black revolver with a brown handle. He said that on the day of the murder

he saw Defendant with a chrome gun. In his November 2012 statement and at trial, Mr.

Wood said that he thought that the chrome gun was a semiautomatic.

Angel Kilgore testified that she knew Franklin Wood from Central High School.

She also knew Dwight Turner and Edward King. She knew the victim through mutual

friends. Prior to the victim’s murder, Ms. Kilgore was at Mr. King’s house with Mr.

King, “Redee,” Mr. Turner, Eric Traylor, Mr. Wood, and Quinisha McCurdy. Ms.

Kilgore testified that Mr. Turner was drunk, and others were drinking and smoking

marijuana. At some point during the evening, Ms. Kilgore heard Mr. Wood and Mr.

Turner discussing a robbery. She testified:

We were all sitting in the kitchen. And there were a couple of

conversations going on. And there was one conversation where the only

thing that I heard was Mon, and that was because a while back when

[we] were in school Mon and EJ had gotten into it over something and

they were talking about that. And that was the only name I heard. And

they was talking - - it was like how it began they were talking about

getting new school clothes.

* * *

And they said that they were going to rob somebody. And that’s how

they were going to get their new school clothes. And they said that they

didn’t want to - - they wasn’t going to kill him or anything. They was

just going to try to hurt him, and take the gun and that was just to scare

him. They said that they was just going to hit him with the gun. And

then they - - Frank was talking about the time that he thought he got off

and everything, and they were talking about what they were going to

wear.

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* * *

They said that they were going to dress up in all black so they didn’t - -

so he wouldn’t know who it was. And then they said they may just put a

bag over his head and make him go to the bank. And then Frank, well,

he started to get scared. So Dwight told him that he think that - - he

thought that he would snitch.

Ms. Kilgore testified that Mr. Wood thought “that was messed up because he told

them that he wouldn’t be the snitch.” She said that they were later sitting in the den and

either Mr. Wood’s or Mr. Turner’s cell phone went dead while they were trying to text

Defendant. Ms. Kilgore testified that everyone went outside when Mr. King’s mother got

home. While they were outside, Defendant arrived in a car with Tracy Turner and

“Smiley.” Defendant was sitting on the passenger side. Ms. Kilgore testified that

Defendant was holding a gun in his lap, and he put it away when she walked up to the

car. She said that Defendant and Tracy Turner were trying to get Dwight Turner to get

into the car with them. Ms. Kilgore testified that Dwight Turner was begging them not to

let him go because he was drunk and did not want to get into trouble. She said that Mr.

Wood got into the car with her, Quanesha McCurdy, and Shamika McCurdy, and they

dropped him off on a street near his house. Mr. Turner was supposed to spend the night

at Mr. King’s house.

On cross-examination, Ms. Kilgore testified that the gun she saw in Defendant’s

lap was a small black gun.

Sabretta Linder testified that Defendant’s brother, Kevin “Boochie” Greer, is the

father of one of her children. Odessa Moon is Defendant and Mr. Greer’s grandmother.

In July of 2010, she was living “[i]n the west side.” Ms. Linder testified that she knew

Mahara Taylor and Edward King. She recalled giving a statement to Detective Van

Hinton in August of 2010. She did not recall telling Detective Hinton that Defendant told

her that he was involved in the victim’s murder. Ms. Linder only remembered that the

detective told her that Defendant had something to do with the murder. She also did not

recall telling Detective Hinton that Defendant told her that Jamicah Moore drove the car.

The prosecutor presented a transcript of a taped interview of Ms. Linder with

Detective Hinton. The prosecutor attempted to impeach Ms. Linder with her prior

inconsistent statements that Defendant told her he was involved in the victim’s murder

and that Defendant told her ATL (the street name for Jamicah Moore) was the driver of

the car that transported Defendant to and from the area of the crime. Ms. Linder admitted

that the transcript of her statement reflected that she made those statements, but she did

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not remember saying those things. Defense counsel made an objection to Ms. Linder’s

testimony as to who drove the vehicle because Ms. Linder just heard it “on the street.”

However, the prosecutor read Detective Hinton’s question to her about who told her, and

she stated Defendant’s name. Defense counsel did not object to the entire transcript of

Ms. Linder’s statement to Detective Hinton being hearsay, and therefore strictly

admissible solely for impeachment purposes.

Without an objection to the prosecutor reading out loud in the jury’s presence

specific questions to and responses by Ms. Linder, the prosecutor elicited the following:

Q. Ms. Linder, did [Defendant] ever tell you that he was

involved in the death of [the victim]?

[Ms. Linder]: No.

* * *

Q. So [Defendant] told you that he had something to do

with it.

[Ms. Linder]: That’s what it’s saying, but I don’t recall telling them

that. I recall them telling me.

Q. You agree that’s what this transcript says.

[Ms. Linder]: Uh-huh.

* * *

Q. All right. Did [Defendant] at any point in time tell

you who the driver of the vehicle was?

[Ms. Linder]: No.

Q. He did not?

[Ms. Linder]: No.

* * *

Q. Who told you [Jamicah Moore] was driving.

[Detective] Hinton asked you that question; is that

correct?

- 11 -

[Ms. Linder]: Yes.

Q. Are you Linder [in the transcript]?

[Ms. Linder]: Uh-huh

Q. What’s your response?

[Ms. Linder]: [Defendant].

Q. So in August of 2010 you hear directly from

[Defendant] that Jamicah [Moore] was to be the

driver of the car; is that right?

[Ms. Linder]: That’s what it’s saying. But I don’t remember.

Since Defendant did not object to the transcript of Ms. Linder’s evidence being

hearsay, and thus limited to its use as impeaching evidence, the portions of Ms. Linder’s

statement were admitted as substantive evidence of the truth of the matters asserted in the

statement. State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000).

Ms. Linder testified that while Defendant was in custody, he asked her to look for

a gun that he referred to as his “bitch.” She said that the gun was registered to Kevin

Greer, and she thought it was a silver .38 [sic] caliber. He told her that the weapon was

supposed to be wrapped in a dark-colored sock at his “nanny’s house” near a bottle in the

bushes outside of the house. Ms. Linder looked for the gun but did not find it. She called

Defendant and told him that she could not find the gun. She later told Detective Hinton

where the gun was supposed to be, and they went to look for it but did not find it.

During a recorded call from the jail played for the jury during Ms. Linder’s

testimony, Defendant told Ms. Linder to tell Jamicah Moore that he needed to stay away

from the police. Defendant also told Ms. Linder to tell Jamicah Moore what to say if the

police talked to him. Finally, in the recorded call from the jail, Defendant told Ms.

Linder that ATL (Jamicah Moore) was Defendant’s driver on the night of the victim’s

murder. Ms. Linder testified that Defendant also had her call Mr. King, which she did.

Mahara Taylor testified that he is a friend of Defendant. He did not recall ever

seeing Defendant with a gun. However, during a recorded statement given to Detective

Higdon on August 31, 2010, Mr. Taylor said that he had seen Defendant with a gun two

months prior to the victim’s murder. He described the weapon as a small, silver .380

caliber. Mr. Taylor did not recall telling the detective that Defendant referred to the gun

- 12 -

as his “bitch.” He also described the gun as a revolver and not a semiautomatic. Mr.

Taylor testified that his mother had a gun late in July to August of 2010. He thought that

the weapon was a .380 or “something with a 38 in it.” Mr. Taylor’s mother took the gun

to police to have it tested after the victim’s murder.

Edward King testified that in July of 2010, he lived on Celtic Drive, and

Defendant’s mother lived up the hill from him on Northwind Drive. A few days prior to

the victim’s murder, Mr. King had several people at his house for a “little party”

including “Angel, Eric, Redarius, Angel’s friend, and [Dwight Turner] and Frank

[Wood].” There was alcohol and marijuana at the party. Mr. King heard Mr. Wood and

Mr. Turner in the kitchen talking back and forth “saying like [Mr. Wood] wasn’t going to

rob nothing, and then he told [Mr. Turner] he wasn’t going to rob nothing.” Mr. King

testified that his mother came home later and told everyone to get out of the house. He

went outside and saw Defendant riding in a car traveling down the hill. Mr. King

testified that he thought Mr. Wood went home, and Mr. Turner spent the night at Mr.

King’s house. He said that on the day of the murder, Mr. Turner was at his house during

the day and that night, and neither he nor Mr. Turner went anywhere.

Mike Cox of the Hamilton County Sheriff’s Department, Crime Scene Unit,

responded to Memorial Hospital on July 21, 2010, to photograph the victim’s car, and he

called a wrecker service to have the vehicle towed to the sheriff’s office for processing.

Detective Cox later dusted the car for fingerprints, and he lifted a total of eight palm and

finger prints from the vehicle. He took three swabs to test for gun residue, and he took

DNA samples from the car. Detective Cox also collected a blue glove, personal

belongings, and the steering wheel cover from the vehicle.

Detective Robin Langford is a crime scene investigator for the Hamilton County

Sheriff’s Department. He processed the crime scene in the present case and found a spent

.380 caliber shell casing in the driveway. Detective Langford testified that the casing was

marked as a CCI brand and was the type typically used in a semiautomatic weapon. He

also helped Detective Cox process the victim’s car, and he said that buccal swabs were

taken from Mr. Turner, Jamicah Moore, Mr. Wood, and Defendant.

Detective James Gienapp of the Hamilton County Sheriff’s Department testified

that he participated in executing a search warrant at Defendant’s house on Northwind

Drive. In Defendant’s bedroom, Detective Gienapp collected a superman shirt, blue

jeans, a rubber glove fragment from inside one of the jacket pockets, and a live .380

caliber round of ammunition. Detective Gienapp also collected three pairs of tennis

shoes and a sock that appeared to have a blood stain. The live round of ammunition and

the blood-stained sock came from a clothes hamper. Detective Gienapp testified that a

- 13 -

handwritten note was also found in Defendant’s bedroom. From our review, the note

appears to be an attempt at completing a timeline. The note states:

Atl [Jamicah Moore] picked me up sometime after 9. I gave him 10 to

come get me and run me to my neighborhood to get some shoes. Where

Frank was supposed to meet us to give me some shoes[.] Yes I did tell

him I was down the street but not from his neighborhood mine. Between

one of those texts I called and asked him what size did he wear and he

said 10 or 11 so I told him nevermind. . . .

9:45

10 or 15 mins. During that time I called ej and asked if he had some

shoes and he said no. [T]hen Atl texted me and said call him and [he]

asked me if I was staying or going back to my grandma’s and I told him

to come and get me then he called me when he was pulling up then took

me to my grandma’s around 10.

Detective Gienapp testified that he interviewed Mahara Taylor on August 3, 2010,

and he also spoke with Mr. Taylor’s mother. Mr. Taylor’s mother was a bounty hunter,

and she wanted to make certain that her weapon that she used in her job as a bounty

hunter had not been used in the victim’s murder so she brought the weapon in for

examination. Detective Gienapp took fingerprints from Defendant and Mr. Wood. He

also identified fingerprint cards from the victim, Jamicah Moore, and Charles Moore.

Detective Jeff Baker of the Hamilton County Sheriff’s Department testified that he

interviewed Defendant on July 24, 2010, and he spoke with Defendant’s grandmother.

Because he was 17 at the time, Defendant’s mother was present during his interview.

Defendant was arrested on July 28, 2010. Detective Baker testified that he participated in

a search warrant at the home of Defendant’s grandmother at the Laurel Ridge

Apartments. Behind the apartment complex Detective Baker found two black t-shirts and

a trifold wallet containing identification and a credit card. Inside the grandmother’s

apartment, he collected a dark blue long-sleeve shirt and a black glove. Detective Baker

later spoke with the owner of the wallet, Steven Carroll. It was Detective Baker’s

understanding that Defendant stayed at the apartment with his grandmother when his

mother was working.

Special Agent James Davis, II, is a forensic scientist with the Tennessee Bureau of

Investigation (TBI) assigned to the microanalysis unit. He determined that a glove found

on the seat of the victim’s car had “gunshot primer residue” and that it came into contact

or was near a recently fired weapon or recently fired ammunition components. Special

Agent Davis also testified concerning two gunshot residue reports prepared by Special

Agent Laura Hodge concerning the victim and Franklin Wood. He testified that the

- 14 -

gunshot residue tests on both of those individuals were negative. On cross-examination,

Special Agent Davis testified that it was possible that the blue glove could have been left

by emergency personnel who came into contact with the victim.

Special Agent Suzanne Lafferty of the TBI was assigned to the latent print unit at

the time of the present offenses. She is an expert in latent print analysis. Special Agent

Lafferty analyzed the prints from the crime scene and found four identifiable palm prints

but no identifiable finger prints. She determined that the palm prints did not match that

of the victim, Defendant, Jamicah Moore, Mr. Wood, or Charles Moore, the victim’s

father. On cross-examination, Special Agent Lafferty testified that she did not have

prints from Dwight Turner to compare to the four palm prints. She checked the prints

against the AFIS data base with no identifications.

Special Agent Kevin Warner of the TBI crime lab is assigned to the firearms

identification unit as a firearms examiner. He is an expert in firearms analysis. Special

Agent Warner received a bullet from the medical examiner’s office that was recovered

from the victim’s head in this case. He determined that the bullet was a .380 auto caliber

that could have been fired from “an AMT Backup or an IAI Backup.” Special Agent

Warner also received a shell casing which was a .380 auto caliber. The manufacturer of

the shell casing was CCI, and it was a “NR” or “not reloadable” casing.

Special Agent Warner also received four firearms for comparison testing with the

bullet recovered from the victim. He concluded that three of the weapons did not fire the

bullet. Special Agent Warner was unable to determine if the fourth weapon, an “AMT or

Back-up pistol” fired the submitted bullet. He said, “I determined that the class

characteristics were the same. But there were no individual characteristics to link that

gun as having fired that bullet.” Special Agent Warner could not conclusively say

whether the bullet was fired or not fired from the gun. He also received an unfired

cartridge which he identified as a “CCI brand .380 auto caliber.”

On cross-examination, Special Agent Warner testified that the bullet recovered

from the victim’s head was fired from a semi-automatic weapon and not a revolver. He

also received a magazine from the crime scene containing seven unfired cartridges and

other unfired cartridges from the crime scene. Special Agent Warner testified that the

unfired cartridges “consisted of six Winchester brand .380 auto loaded with a full metal

jacket bullet. And five Federal brand .380 auto loaded with a jacketed hollow point

bullet.” On redirect examination, Special Agent Warner noted that the magazine fit a

Cobra FS380 pistol.

Special Agent Mike Turbeville of the TBI Crime Lab is the supervisor of the

Forensic Biology Unit. Special Agent Bradley Everett is one of his employees, and he

- 15 -

performed DNA analysis on items sent to the lab in the present case. Special Agent

Turbeville testified that Special Agent Everett received a blood sample from the victim

and buccal swabs from Dwight Turner, Defendant, and Jamicah Moore. He also received

a rubber glove with a reddish brown stain on the outside which was indicative of blood.

The DNA on the outside of the glove, which was found outside the emergency room,

matched that of the victim. The swabs from the inside of the glove yielded a limited

DNA profile that could only be used for exclusionary purposes. The following were

excluded from DNA on the inside of the glove: the victim, Dwight Turner, Defendant,

Jamicah Moore, and Franklin Wood.

Special Agent Turbeville testified that a rubber glove fragment recovered from

Defendant’s residence had a DNA profile that matched that of Defendant. A sock from

Defendant’s room had Defendant’s blood on it. Two swabs taken from the steering

wheel of the victim’s car were presumptively positive for blood that matched the victim’s

DNA. There was no identifiable DNA found on the gear shift or the driver’s side

headrest of the victim’s car. Special Agent Turbeville testified that clothing taken from

Defendant’s closet, including the Superman shirt, did not have the presence of blood on

them.

Detective Ed Merritt of the Hamilton County Sheriff’s Department testified that he

interviewed Mr. Wood just after midnight on July 22, 2010. He had Mr. Wood’s cell

phone number, and he obtained the victim’s and Defendant’s cell phone numbers. Mr.

Wood’s cell phone provider was Verizon, and Detective Merritt received text and call

detail reports for Mr. Wood’s account. Detective Merritt testified that the victim’s and

Defendant’s cell phone carrier was Cricket. He also obtained call and text reports for

their accounts as well. The records that Detective Merritt received contained “cell site

information on them.” He noted that different cell phone providers have different cell

towers. Some of them are shared with other providers. Detective Merritt testified that

Cricket sent a “how-to- read” document with the call detail reports about how cell site

information should be used. The language of the documents specifically stated that the

records could not be used by themselves to show the locations of a caller or a handset.

Detective Merritt acknowledged that a cellular signal “has the potential to jump around.”

He disagreed with the limitations that Cricket placed on what conclusions could be drawn

from the cellular records.

Detective Merritt testified that he obtained a handset from the Cricket store to use

for twenty-four hours. He then went to the Laurel Ridge Apartments and made a series

of test calls from Defendant’s grandmother’s former apartment. Detective Merritt made

calls from the bedroom, bathroom, kitchen, dining room area, living room, and one call

from outside the residence by the balcony. All of the calls originated and terminated on

tower 2014. None of the calls originated or terminated with tower 2031. Detective

- 16 -

Merritt acknowledged that the purpose of the cell phone towers was not to locate

handsets but to “provide a quality communication experience for their customers.” He

also noted that there were variables that can affect the way a phone connects with a

particular tower such as a load on the network, elevation, a “line of sight issue,” or other

obstructions.

Detective Merritt testified that the records he received from Cricket showed

communication between Defendant’s and Mr. Wood’s cell phones. After an analysis of

the communication between the two, Defendant and Mr. Wood were arrested on July 28,

2010. Detective Merritt testified that the victim made a phone call from his cell phone at

9:40 p.m., and it connected to cell phone tower 2031. A call back to the victim’s phone

also connected to tower 2031. Detective Merritt testified that from 9:13 p.m. to 9:47 p.m.

all outgoing calls from Defendant’s cell phone also connected to tower 2031. An

incoming call from Jamicah Moore during that time showed Mr. Moore’s handset was

connected to tower 2014.

Detective David Sowder of the Hamilton County Sheriff’s Department testified

that he was the case agent assigned to the victim’s murder in July 2010. He went to the

crime scene first and then drove to Memorial Hospital and spoke with Charles Moore.

He and Mr. Moore left Memorial Hospital and drove to Erlanger Hospital where the

victim had been transported. Detective Sowder received Franklin Wood’s name from

Mr. Moore. Mr. Wood was interviewed by another detective, and based on information

obtained from the interview, Dwight Turner was brought in for questioning. Mr. Turner

provided some information, and Defendant was interviewed at some point. The decision

was then made to arrest Defendant and Mr. Wood.

Detective Sowder testified that Mahara Taylor was also interviewed, and his

mother provided a weapon to the sheriff’s office for testing. He thought the weapon was

a Cobra .380. The weapon was sent to the TBI for analysis and later released back to Mr.

Taylor’s mother. Detective Sowder testified that based on intercepted jail calls between

Sabretta Linder and Defendant, Ms. Linder was interviewed. Based on the interview,

they went to the Laurel Ridge Apartments. Detective Sowder testified that eleven .380

caliber rounds were obtained from Marvin Irvin, whose son is Jamal Irvin, an associate of

Defendant. Detective Sowder testified that he sent three additional weapons to the TBI

for testing that were collected after Defendant and Mr. Wood’s arrest. He said that a

Lorcin .380 was taken from Dwight Turner at the time of his arrest, and a Davis .380

caliber pistol was taken from an associate of Jamicah Moore at the time of the associate’s

arrest. Detective Sowder later learned that the TBI’s “recommendation” was that an

AMT weapon was used in the homicide. On September 18, 2012, an AMT weapon was

recovered from the property room of the Chattanooga Police Department and sent to the

TBI for testing.

- 17 -

Dr. Frank King, Jr., of the Hamilton County Medical Examiner’s Office

performed an autopsy on the victim. He determined that the victim died from a gunshot

wound to the head, and the manner of death was homicide. Dr. King testified that the

gun was six to twelve inches from the victim’s head when it was fired. The bullet entered

the victim’s head from “left to right, slightly front to back, and upward as it went into the

head.”

Steve Carroll testified that he worked as an architect for Rardin and Carroll

Architects located on Preservation Drive. At approximately 5:30 p.m. on July 21, 2010,

Mr. Carroll left the office and walked to his car. As he was putting his briefcase and

laptop in the vehicle, he heard someone say something. When Mr. Carroll turned around,

he saw Defendant who said, “[G]ive me your wallet and your cell phone.” He said that

Defendant was dressed all in black, and he had a silver gun that appeared to be an

automatic “because it did not have a barrel on it,” and he was pointing the gun at Mr.

Carroll. Mr. Carroll testified that he gave Defendant his cell phone and wallet, and he

said, “[H] ey, anything you want, just don’t shoot me.”

Mr. Carroll testified that Defendant asked if he had anything else, and Mr. Carroll

told Defendant that he could take Mr. Carroll’s laptop or briefcase. Mr. Carroll said, “Just

don’t shoot me.” He testified that Defendant looked at him and said, “[Y]ou look like a

nice guy, I’m not going to hurt you.” Defendant then ran away toward Jersey Pike.

According to Mr. Carroll’s cell phone records, his phone was used to make a call at 7:31

p.m. to XXX-XXX-7718. Calls were also made at 7:37 and 7:38 p.m. to XXX-XXX-

4064, which was a number assigned to Bessie Moore and used by Jamicah Moore. The

phone was not in Mr. Carroll’s possession when the three calls were made. In September

of 2010, Mr. Carroll identified Defendant from a photographic lineup. Mr. Carroll’s

wallet and its contents were later recovered by police. On cross-examination, Mr. Carroll

testified that there is a liquor store at the corner of Jersey Pike and Bonny Oaks,

approximately 800 feet from where he was robbed. He thought that there was ten dollars

in his wallet along with credit cards.

Analysis

I. Admission of Prior Bad Acts

Defendant contends that the trial court erred by allowing the State to introduce

evidence that he robbed Mr. Carroll on the same day that he attempted to rob the victim.

However, we find that the evidence was relevant to the issues of intent and identity and

was properly admitted by the trial court.

- 18 -

As a general rule, “trial courts have broad discretion in determining the admissibility

of evidence, and their rulings will not be reversed absent an abuse of that discretion.”

State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). The general rule is that evidence of

a defendant’s prior conduct is inadmissible, especially when previous crimes or acts are

of the same character as the charged offense, because such evidence is irrelevant and

“invites the finder of fact to infer guilt from propensity.” State v. Hallock, 875 S.W.2d

285, 290 (Tenn. Crim. App. 1993). Tenn. Rule of Evid. 404(b) permits the admission of

evidence of prior conduct if the evidence of other acts is relevant to a litigated issue such

as identify, intent, or rebuttal of accident or mistake, and the probative value outweighs

the danger of unfair prejudice. Tenn. R. Evid. 404(b) Advisory Comm’n Cmts.; see State

v. Parton, 694 S.W. 2d 299, 303 (Tenn. 1985); State v. Hooten, 735 S.W.2d 823, 824

(Tenn. Crim. App. 1987). However, “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity with

the character trait.” Tenn. R. Evid. 404(b). Before admitting evidence under Rule

404(b), the rule provides that (1) upon request, the court must hold a hearing outside the

jury’s presence; (2) the court must determine that the evidence is probative on a material

issue and must, if requested, state on the record the material issue and the reasons for

admitting or excluding the evidence; (3) the court must find proof of the other crime,

wrong, or act to be clear and convincing; and (4) the court must exclude the evidence if

the danger of unfair prejudice outweighs its probative value. Tenn. R. Evid. 404(b).

The rationale underlying Rule 404(b)’s exclusion of evidence of a defendant’s

prior bad acts is that admission of such evidence carries with it the inherent risk of the

jury convicting the defendant of a crime based upon his bad character or propensity to

commit a crime, rather than the conviction resting upon the strength of the evidence.

State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the

defendant’s prior bad acts are similar to the crime for which the defendant is on trial. Id.;

see also State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996).

In this case, the trial court properly conducted a pretrial hearing outside the

presence of the jury. At the conclusion of the hearing, the trial court found:

All right, I do believe that this evidence is probative on the issues of

intent to some degree and definitely on identity because of the phone,

[Defendant’s] phone and the stolen phone calling the same number. And

I find that the probative value outweighs the prejudicial effect, so I’m

going to allow it.

We acknowledge that the trial court made no finding that proof of the other crime, wrong,

or act was clear and convincing. Therefore, because the trial court failed to substantially

comply with the requirements of the rule, its decision is entitled to no deference, and we

- 19 -

must conduct a de novo review. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). In

considering this review, we must consider the evidence presented at the pretrial hearing

in determining the admissibility of the evidence under Rule 404(b). Id. at 653.

After conducting our de novo review, we conclude that the trial court properly

determined that Mr. Carroll’s testimony was admissible under Rule 404(b) to show

Defendant’s intent and the identity of Defendant as the perpetrator of the victim’s

homicide both of which were material issues in this case. There was also clear and

convincing evidence of the robbery of Mr. Carroll by Defendant. In this case, the State

had the burden of proving that Defendant was involved in an attempted aggravated

robbery at the time of the victim’s murder.

Identity

From the onset of the trial, Defendant’s identity as the perpetrator of the victim’s

murder was a contested issue. Evidence of incriminating statements by Defendant was

presented through the testimony of witnesses who were not law enforcement officers, and

whose credibility was strongly attacked by defense counsel. One of those witnesses, Mr.

Wood, was a co-defendant who received a favorable negotiated plea agreement in

exchange for his testimony in Defendant’s trial, and testimony about another witness, Mr.

Turner, was that he was involved in the initial planning to rob the victim, but withdrew.

Mr. Turner was never charged.

In his opening statement to the jury, defense counsel’s theory of the case was that

Defendant did not commit the murder. He argued in great detail that there was no

physical evidence which would link Defendant to the murder: no murder weapon, no

finger prints, no DNA, no clothing. Defense counsel further attacked the credibility of

Mr. Turner and Mr. Wood, alluding that the proof would show that they had reasons to

provide false testimony concerning Defendant’s involvement. Defendant’s theory of the

case did not change during the course of the trial. In closing arguments to the jury,

defense counsel stressed that no credible evidence showed that Defendant committed the

murder. He argued that the proof established that Mr. Wood and/or Mr. Turner

committed the murder, suggesting Mr. Wood had a falling out with the victim and

therefore a motive to plan and execute the aggravated robbery which resulted in the

victim’s death. Defense counsel also argued that there were no fingerprints, DNA

samples, or other physical evidence identifying Defendant as the perpetrator.

The proof of Defendant’s aggravated robbery of Mr. Carroll approximately four

hours before the victim’s death involved proof of Defendant’s identity as the perpetrator

of the victim’s murder. Defendant took Mr. Carroll’s cell phone and wallet. The cell

phone was used in two calls with Jamicah Moore’s phone approximately two hours later.

- 20 -

Jamicah Moore, according to testimony, was Defendant’s driver to and from the area of

the murder. During a recorded call, Defendant had told Mr. Moore that he was “quiet”

and not telling the police anything and that the police could not figure out how Defendant

got from one location to another on the night of the murder. There was evidence admitted

that Defendant had told Ms. Linder, while Defendant was in jail on the murder charge,

where he had hidden the handgun near his grandmother’s apartment. Ms. Linder showed

law enforcement officers the location. Although no handgun was found, Mr. Carroll’s

wallet was located during the search for the handgun in the same area where Defendant

told Ms. Linder he had hidden the gun. Thus, to prove Defendant’s identity as the

perpetrator of the victim’s homicide, it was necessary to connect Defendant to Mr.

Carroll’s cell phone and his wallet, and this was done by explaining how Defendant, who

was a stranger to Mr. Carroll (he had to identify Defendant as the robber by looking at a

photographic line-up), came into possession of Mr. Carroll’s cell phone and wallet.

Intent

Defendant’s theory of defense also included the assertion that there was no proof

of a robbery or even an attempt of a robbery by whoever was the perpetrator. The

testimony of the victim’s father included the fact the he found the victim in the passenger

seat of the victim’s car with a bullet wound to his head. The victim had driven to his

home and parked in the driveway shortly before he was discovered to have been shot.

The victim’s father testified that the victim regularly stayed in his car for a while and

listened to music or talked to friends after parking in the driveway. However, he further

testified that he never knew of the victim sitting in the passenger seat of his car while

sitting in the driveway. There was testimony that the plans for the robbery of the victim

involved forcing him to get out of the driver’s seat and ride with the perpetrator(s) to a

bank and make the victim withdraw money from the ATM. This is consistent with

evidence of the robbery’s planning. There was testimony that Defendant had made

statements to witnesses that the shooting of the gun was accidental, with no direct

admissions by Defendant that he approached the victim with intent to rob him. Thus,

proof of Defendant’s aggravated robbery of Mr. Carroll just four hours prior to the

victim’s death became relevant and highly probative of Defendant’s intent to commit

robbery of the victim. Specifically, co-defendant Mr. Wood testified that he

communicated with Defendant a short period of time prior to the victim’s murder. Mr.

Wood walked to a location near his home and the victim’s home (both yards intersect

with Mr. Wood’s next door neighbor) and gave Defendant some shoes. Mr. Wood

pointed out the victim’s home to Defendant, but at the time the victim’s car was not yet at

home. Defendant referred to the victim as Mr. Wood’s “boy,” asking Mr. Wood where

his boy was. Co-defendant Mr. Wood testified that he knew Defendant’s intent was to

carry out the plans to rob the victim. Defendant had informed Mr. Wood of his robbery

of Mr. Carroll. The following testimony of Mr. Wood was elicited by the prosecutor:

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Q. Did you know what [Defendant] was about to do when he asked you

where was your boy?

A. Yes, sir.

Q. How did you know that?

A. Well, he had a gun and he robbed somebody before and I knew I guess

when he was over there that he was going to do it.

There was no objection as to Mr. Wood’s testimony being inadmissible opinion

testimony of Defendant’s intent to rob the victim, although Defendant had properly

objected in general in the pretrial hearing to proof of the prior bad act.

This testimony by Mr. Wood is not merely propensity evidence that Defendant

had committed one robbery and therefore must have committed the murder in the

perpetration of a robbery of the victim. The testimony was by a co-defendant. There was

proof that Defendant, Mr. Wood, and Mr. Turner had planned a robbery of the victim.

Mr. Turner had apparently backed out of the criminal enterprise according to some

testimony. Mr. Wood testified that he was unable to participate because of his curfew.

Mr. Wood was with Defendant facilitating Defendant’s confrontation with the victim.

Mr. Wood’s perception of Defendant’s intentions was crucial evidence of Defendant’s

intent at the time Defendant came into contact with the victim. Evidence of Defendant’s

prior of aggravated robbery was more probative of Defendant’s intent than it was

prejudicial, especially since, in this case, the evidence was already extremely probative of

Defendant’s identity as the perpetrator, as discussed above.

Defendant is not entitled to relief on this issue.

II. Jury Instruction Concerning the Admission of 404(b) Evidence

Defendant argues that the trial court erred by instructing the jury that it could

consider the admission of 404(b) evidence for issues other than intent and identity,

specifically as part of a common scheme or plan or to prove his motive. We agree that

the trial court erred and that it is reversible error.

Rule 404(b) of the Tennessee Rules of Evidence provides that: “Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity with the character trait. It may, however, be admissible for

other purposes.” Other purposes has been defined to include: (1) motive; (2) intent; (3)

- 22 -

guilty knowledge; (4) identity of the defendant; (5) absence of mistake or accident; (6) a

common scheme or plan; (7) completion of the story; (8) opportunity; and (9)

preparation. Parton, 694 S.W.2d at 302; Bunch v. State, 605 S.W.2d 227, 229

(Tenn.1980); State v. Jones, 15 S.W.3d 880, 894 (Tenn.Crim.App.1999). Our supreme

court has defined “common scheme or plan” evidence as “(1) offenses that reveal a

distinctive design or are so similar as to constitute ‘signature’ crimes; (2) offenses that are

part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the

same criminal transaction.” State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999); State v.

Moore, 6 S.W.3d 235, 240 (Tenn.1999).

Rule 30 (b) of the Tennessee Rules of Criminal Procedure provides:

After the court instructs the jury, the parties shall be given an

opportunity to object-out of hearing of the jury- to the content of an

instruction that was given or to the failure to give a requested instruction.

Counsel’s failure to object does not prejudice the right of a party to

assign the basis of the objection as error in a motion for a new trial.

While Defendant in this case did not object to the trial court’s final written jury

instruction concerning the admission of 404(b) evidence at trial, the issue was properly

raised in Defendant’s amended motion for new trial. See State v. Haynes, 720 S.W.2d

76, 84-85 (Tenn. Crim. App. 1986).

In the final jury instructions in this case, the trial court gave the following

instruction:

Evidence of other bad acts. If from the proof you find that the defendant

has committed one or more bad acts other than those for which he is on

trial, you may not consider such evidence to prove his disposition to

commit crimes such as those for which he is on trial. This evidence may

only be considered by you for the limited purpose of determining

whether it provides, (A), the defendant’s identity, that is such evidence

may be considered by you if it tends to establish the defendant’s identity

in the case at trial; or two, [sic] a scheme or plan that is such evidence

may be considered by you if it tends to establish that the defendant

engaged in a common scheme or plan for the commission of two or more

crimes that were related to each other that proof of one tends to establish

the other; or (C) motive that is such evidence may be considered by you

if it tends to show a motive of the defendant for the commission of the

offense presently charged, or (D) the defendant’s intent. That is such

evidence may be considered by you if it tends to establish that the

- 23 -

defendant actually intended to commit the crime with which he is

presently charged. Such evidence of one or more other bad acts, if

considered by you for any purpose, must not be considered for any

purpose other than that specifically stated.

The trial court had already ruled in a pre-trial hearing that evidence of the prior

robbery was admissible only for the purposes to prove the identity of Defendant as the

perpetrator and Defendant’s intent. However, the trial court instructed the jury that it

could also consider the prior robbery to prove a common scheme or plan (“signature”

crime) by Defendant in committing a totally unrelated robbery that was only similar

because a gun was involved. The trial court told the jury the prior robbery could be used

to prove Defendant’s motive. There was no factual basis in the evidence to support use

of the evidence of the prior robbery to prove these additional factors, and they essentially

left the finder of fact to apply the evidence as proof of Defendant’s propensity to commit

robbery.

“In determining whether instructions are erroneous, this Court must review the

charge in its entirety and read it as a whole. A charge should be considered prejudicially

erroneous if it fails to fairly submit the legal issues or if it misleads the jury as to the

applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). The instruction

given to the jurors in this case failed to fairly submit the legal issue and misled the jurors

as to the applicable law. The instruction permitted the jury to consider the robbery of Mr.

Carroll for purposes other than intent and identity. Accordingly, we reverse the

Defendant's convictions for felony murder and attempted especially aggravated robbery

and remand this case for a new trial.

III. Testimony Concerning Defendant’s Cellular Phone Records

Defendant contends that the trial court erred by admitting lay testimony by

Detective Merritt about Defendant’s cell phone records and cell towers because Detective

Merritt was not a cell phone expert. Defendant further contends that Detective Merritt

offered “quasi-expert testimony.” The State counters that Detective Merritt’s testimony

did not require expert knowledge.

Lay witness testimony is set forth in Tenn. R. Evid. 701 which provides:

(a) Generally. If a witness is not testifying as an expert,

the witness’s testimony in the form of opinions or

inferences is limited to those opinions or inferences

which are:

- 24 -

(1) rationally based on the perception of

the witness and

(2) helpful to a clear understanding of the

witness’s testimony or the determination

of a fact in issue.

Tenn. R. Evid. 702 provides:

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.

We find that Detective Merritt’s testimony did not require specialized knowledge

as contemplated by Tenn. R. Evid. 702, which governs expert testimony. Detective

Merritt testified that he obtained cell phone records for Mr. Wood, Defendant, and the

victim. Mr. Wood’s cell phone provider was Verizon wireless, and Defendant and the

victim’s provider was Cricket. Detective Merritt testified that Cricket sent a “how-to-

read” document with its call detail reports for Defendant and the victim. He testified in

detail concerning the content of the “how-to-read” document. Detective Merritt testified

that the language of the document specifically stated that the call records could not be

used by themselves to show locations of a caller or of a handset. Detective Merritt

acknowledged that the purpose of the cell phone towers was not to locate handsets but to

“provide a quality communication experience for their customers.” He also noted that

there were variables that can affect the way a phone connects with a particular tower such

as a load on the network, elevation, a “line of sight issue,” or other obstructions.

Detective Merritt noted that he disagreed with the limitations provided by Cricket about

the value of the records with respect to location. He also testified that the cell records to

a certain extent could show the approximate location of a handset but not a person.

Detective Merritt testified that the records were “not as exact as GPS.”

Detective Merritt testified that he borrowed a handset from the local Cricket store,

and he went to the apartment at Laurel Ridge Apartments where Defendant’s

grandmother had lived at the time of the murder. Detective Merritt made calls from the

bedroom, bathroom, kitchen, dining room area, living room, and one call from outside the

residence by the balcony. All of the calls originated and terminated on tower 2014.

None of the calls originated or terminated on tower 2031

Detective Merritt testified that the records he received from Cricket showed

communication between Defendant’s and Mr. Wood’s cell phones. After an analysis of

- 25 -

the communication between the two, Defendant and Mr. Wood were arrested on July 28,

2010. Detective Merritt read the cell phone records and testified that the victim made a

phone call from his cell phone at 9:40 p.m., and it connected to cell phone tower 2031. A

call back to the victim’s phone also connected to tower 2031. Detective Merritt testified

that from 9:13 p.m. to 9:47 p.m. all outgoing calls from Defendant’s cell phone also

connected to tower 2031. An incoming call from Jamicah Moore during that time

showed Mr. Moore’s handset was connected to tower 2014. In his testimony, Detective

Merritt referenced the cell phone tower map that had been created for him, and he

acknowledged that there were a number of towers in the area that were not on the map.

Detective Merritt specifically told the jury that the cell phone companies “would not

under any circumstances say that the phone was in connection with a certain sector [of]

that tower.”

The gist of Detective Merritt’s testimony was about which cell phone tower

Defendant’s phone and the victim’s phone were connected to at a particular time. In

State v. Hayes, No. M2008-02689-CCA-R3-CD, 2010 WL 5344882 (Tenn. Crim. App.

Dec. 23, 2010) a panel of this court held that a detective could testify that he saw the

locations of the cell phone towers listed on the cell phone records and plotted the

locations on a map. The detective also inferred that “the defendant traveled near these

towers.” The detective explicitly stated that he was not an expert in how the cell phone

towers worked. This court held: “We conclude that a layperson could plot the locations

of the towers on a map and draw the same inferences; therefore, his testimony did not

require specialized knowledge as contemplated by Tennessee Rules of Evidence 702,

which governs expert testimony, and the trial court did not err by allowing the

testimony.” Id. at *2.

We find that the trial court properly admitted testimony by Detective Merritt

concerning the cell phone towers. The State specifically stated that it was not offering

Detective Merritt as an expert in cell phone records. Although Detective Merritt testified

that he had several classes in cell phone technology and that some of his knowledge of

cell phones came from his work as a police officer, we find that the testimony concerning

which cell phone tower Defendant’s phone, the victim’s phone, and Jamicah Moore’s

phone were connected to at a particular time, as reflected in the cell phone records

obtained, was lay testimony as in Hayes. Defendant is not entitled to relief on this issue.

IV. Affidavits in Support of the Search Warrants

A trial court’s factual findings on a motion to suppress are conclusive on appeal

unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23

(Tenn. 1996). Furthermore, questions about the “credibility of the witnesses, the weight

and value of the evidence, and resolution of conflicts in the evidence are matters

- 26 -

entrusted to the trial judge as the trier of fact.” Id. “We afford to the party prevailing in

the trial court the strongest legitimate view of the evidence and all reasonable and

legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d

861, 864 (Tenn. 1998). However, we review a trial court’s application of the law to the

facts under a de novo standard of review. State v. Williams, 185 S.W.3d 311, 315 (Tenn.

2006).

A. Basis of Knowledge and Credibility of Informants

Defendant argues that the State failed to meet the two prongs of the Aguillar-

Spinelli test setting forth the basis of knowledge and credibility of informants Dwight

Turner and Angel Kilgore in the affidavits supporting the search warrants in this case.

State v. Jacumin, 778 S.W.2d 430, 431 (Tenn. 1989); Aguillar v. Texas, 378 U.S. 104, 84

S.Ct. 1509 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969).

An affidavit establishing probable cause is an indispensable prerequisite to the

issuance of a search warrant. See, e.g., Tenn. Code Ann. § 40-60-103; Tenn. R. Crim. P.

41(c); State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998); State v. Moon, 841 S.W.2d

336, 338 (Tenn. Crim. App. 1992). Such probable cause “must appear in the affidavit

[itself] and judicial review of the existence of probable cause will not include looking to

other evidence provided to or known by the issuing magistrate or possessed by the

affiant.” Moon, 841 S.W.2d at 338; see also Henning, 975 S.W.2d at 295. To

sufficiently make a showing of probable cause, an affidavit “must set forth facts from

which a reasonable conclusion might be drawn that the evidence is in the place to be

searched.” State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993). However, a decision

regarding the existence of probable cause requires that the affidavit contain “more than

mere conclusory allegations by the affiant.” State v. Stevens, 989 S.W.2d 290, 293

(Tenn. 1999); see also Moon, 841 S.W.2d at 338.

“[B]efore a finding of probable cause may be based on an informant’s tip, the

basis of the informant’s knowledge and the informant’s credibility must also be

established.” State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997)(citing State v.

Jacumin, 778 S.W.2d 430, 432-36 (Tenn. 1989)). Tennessee law recognizes a distinction

between those who are “citizen informants, or bystander witnesses, and criminal

informants, or those from the criminal milieu.” State v. Cauley, 863 S.W.2d 411, 417

(Tenn. 1993)(internal citations and quotations omitted). A person from the criminal

milieu is one who is “intimately involved with the persons informed upon and with the

illegal conduct at hand.” State v. Melson, 638 S.W.2d 342, 354 (Tenn. 1982)(internal

citations and quotations omitted). Information given by criminal informants “is not given

in the spirit of a concerned citizen, but often is given in exchange for some concession,

payment, or simply out of revenge against the subject.” State v. Stevens, 989 S.W.290,

- 27 -

294 (Tenn. 1999)(internal citations and quotations omitted). In contrast, citizen

informants are either “victims of the crime or have otherwise seen some portion of it.”

Melson, 638 S.W.2d at 354 (internal citations and quotations omitted). Information

provided by known citizen informants is “presumed to be reliable,” while information

provided by criminal informants does not carry any presumptions of reliability and must

be tested. Stevens, 989 S.W.2d at 293.

Case law warns against a hyper-technical application of the Aguilar-Spinelli test,

and this court has previously provided that “[t]he requisite volume or detail of

information needed to establish the informant’s credibility is not particularly great.”

State v. Lowe, 949 S.W.2d 300, 305 (Tenn. Crim. App. 1996). However, precedent also

provides that “the affiant must provide some concrete reason why the magistrate should

believe the informant.” Id.

Concerning Mr. Turner and Ms. Kilgore, the trial court found:

As for the other informants, even assuming arguendo that they do not

qualify as citizen informants, the Court finds that the affidavit names

them and contains sufficient information to establish their basis of

knowledge and veracity. Both Mr. Turner and Ms. Kilgore were present

when the robbery was discussed and were in agreement that the

defendant and Mssrs. Wood and Turner discussed it and Mr. Turner

eventually refused to participate. Mr. Turner’s description of the

defendant’s weapon and the account of the defendant’s call were

consistent with the physical evidence at the scene and the manner of the

victim’s death. The Court therefore finds no ground for suppression in

this respect.

In his affidavit in support of the search warrant in this case, Detective Sowder

averred as follows:

I, David Sowder, do hereby make oath as follows:

1. I am a Hamilton County, Tennessee Deputy Sheriff.

2. The crimes being investigated are attempted robbery and murder in

Hamilton County, Tennessee.

3. On 7-21-10, Darrian Moore was murdered at his home in Hamilton

County. He was shot once in the head while sitting in his car. A

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.380 caliber shell casing was found at the scene, which information

had not been released.

4. According to Charles Moore, the victim’s father, the victim returned

home about 9:30 PM that night. The victim called his mother on the

telephone at about 9:41, and was found, already shot, by his father at

about 10:00 PM. According to this citizen informant, the victim was

friendly with Frank Wood, a neighbor, and was often visited by

Wood after getting off work in the evening.

5. I have spoken with Dwight Turner. According to Turner, he is

friendly with Wood and Dominique Greer. Wood says that on 7-20,

the three of them discussed robbing Moore. Wood suggested the

crime, saying that the victim carried a First Tennessee Bank Card

and that he could be forced at gunpoint to withdraw $3000 from a

teller machine at night. He provided details of the victim’s schedule.

6. Greer was to do the actual robbery, since he was unknown to the

victim. Greer said that he had bought a .380 pistol.

7. Tuner said that although he intended to help in the robbery at first,

he decided not to and refused.

8. Turner said that two nights later, Greer called him. He said that he

and Wood had gone to put the plan into action, Greer having gotten

black clothing to wear. Greer told Turner that the victim had

struggled, and that the gun was fired at that time.

9. I have also spoken with another informant, Angel Kilgore. She told

me that she was present when Woods, Greer, and Turner discussed

the robbery, and that Turner refused to participate.

10. Greer, Wood, Turner, and Kilgore are all juveniles.

11. Wood lives at 4865 Long Hill Road, Chattanooga, Tn.

12. Greer lives with his mother at 4916 North Wind Dr., Chattanooga,

Tn. He also stays often with his grandmother at 4715 Bonny Oaks

Dr., Apt. 608, Chattanooga, Tn. His grandmother has told me that

he was at that address at the time of the murder. I believe there is

probable cause to believe that these locations may contain the .380

- 29 -

pistol, ammunition for it, and/or the black clothing worn by Greer.

Based upon the foregoing information, I hereby request a warrant for

the search thereof, for the items described above.

As pointed out by the State, the trial court did not specifically find that Mr. Turner

and Ms. Kilgore were from the “criminal milieu.” It appears from the evidence presented

at the suppression hearing that Mr. Turner was not an ordinary citizen who “report[ed] a

crime which [was] committed in [his] presence,” nor that he acted with intent to “aid the

police in law enforcement because of [his] concern for society or for [his] own [physical]

safety.” State v. Stevens, 989 S.W.2d 290, 294 (Tenn. 1999)(citing State v. Smith, 867

S.W.2d 343, 347 (Tenn. Crim. App. 1993)). Therefore, “it is proper to demand that some

evidence of [his] reliability and credibility be shown” in accordance with Aquilar-

Spinelli, Id. We note that there is nothing in the testimony of Detective Sowder, Ms.

Kilgore, or in the affidavit which shows that Ms. Kilgore is in the “criminal milieu.” We

find her to be a “citizen informant.”

The trial court correctly held that that the affidavit by Detective Sowder contained

the basis for the knowledge and the veracity of Mr. Turner. The affidavit established that

Mr. Turner was present when Mr. Wood and Defendant discussed robbing the victim.

The trial court found that Mr. Turner’s veracity was established when his description of

Defendant’s weapon matched the weapon used to murder the victim. Also, in the

affidavit Detective Sowder affirmed that a .380 caliber shell casing was found at the

murder scene, and that information had not been released at the time. Mr. Turner told

Detective Sowder that, prior to the robbery, Defendant told him that he had purchased a

.380 caliber pistol. Mr. Turner’s veracity was further confirmed when he said that he

received a call from Defendant who told him that the victim struggled and was shot.

Officer Sowder affirmed that the victim was shot in the head.

As for Ms. Kilgore, she said that she was present when Defendant, Mr. Wood, and

Mr. Turner discussed the robbery. She and Mr. Turner both made the statement that Mr.

Turner refused to participate in the robbery.

Following our review of the record, we conclude that the affidavit in this case

contained Mr. Turner’s basis of knowledge and his veracity. Because we find Ms.

Kilgore to be a “citizen-informant” her information carries a presumption of reliability.

State v. Bishop, 431 S.W.3d 22, 38 (Tenn. 2014).

B. Whether the Affidavits Provided Probable Cause that Evidence Would be

Found in Defendant’s Mother’s House

- 30 -

Next, Defendant asserts that the search warrant and affidavit failed to establish

probable cause that evidence would be found at the home of Defendant’s mother because

the affidavit contained only a conclusory statement that Defendant lived there.

Under both the Tennessee and United States Constitutions, no search warrant may

be issued except upon probable cause, which “requires reasonable grounds for suspicion,

supported by circumstances indicative of an illegal act.” State v. Smotherman, 201

S.W.3d 657, 662 (Tenn. 2006). Tennessee requires a written and sworn affidavit,

“containing allegations from which the magistrate can determine whether probable cause

exists,” as “an indispensable prerequisite to the issuance of a search warrant.” State v.

Henning, 975 S.W.2d 290, 294 (Tenn. 1998). The affidavit must contain more than mere

conclusory allegations on the part of the affiant. Id. The standard to be employed in

reviewing the issuance of a search warrant is “whether the issuing magistrate had ‘a

substantial basis for concluding that a search would uncover evidence of wrongdoing.’”

Smotherman, 201 S.W.3d at 662 (quoting State v. Ballard, 836 S.W.2d 560, 562 (Tenn.

1992)).

Our supreme court has explained that, in order to establish probable cause for the

issuance of a search warrant, the underlying affidavit “must set forth facts from which a

reasonable conclusion might be drawn that the evidence is in the place to be searched.”

State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citations omitted). “The nexus

between the place to be searched and the items to be seized may be established by the

type of crime, the nature of the items, and the normal inferences where a criminal would

hide the evidence.” Id. (citation omitted); see also State v. Saine, 297 S.W.3d 199, 206

(Tenn. 2009) (recognizing that an affidavit in support of a search warrant “must show a

nexus among the criminal activity, the place to be searched, and the items to be seized”)

(citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); Smith, 868 S.W.2d at 572)). “In

determining whether probable cause supports the issuance of a search warrant, reviewing

courts may consider only the affidavit and may not consider other evidence provided to

or known by the issuing magistrate or possessed by the affiant.” Id. (citing State v.

Carter, 160 S.W.3d 526, 533 (Tenn. 2005)).

Concerning this issue, the trial court held:

The Court finally considers the issue of the conclusoriness of the

information in the remaining affidavit regarding the addresses. The

affidavits do not identify the sources of the addresses. The source of Mr.

Wood’s address, like Mr. Wood’s address itself, is unnecessary to state

probable cause for the issuance of search warrants for the defendant’s

and the defendant’s grandmother’s residences. Arguably, however, the

source of the defendant’s and defendant’s grandmother’s addresses is

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necessary to state probable cause for the issuance of a search warrant for

those residences.

* * *

Tennessee, of course, does not recognize the good-faith exception. State

v. Bearden, 326 S,W,3d 184, 188(Tenn. Crim. App. 2010)(citing State v.

Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000), and State v. Taylor, 1987

Tenn. Crim. App. LEXIS 2763). In this case, however, the validity of

the affidavits need not depend on the applicability of that exception.

When an affiant does not attribute information to another source, it

seems reasonable to presume that he himself or another officer is the

presumptively reliable source of the information, unless there is evidence

that the omission is material or misleading. In this case, there is no

evidence that the omissions in the affidavits are material or misleading.

Thus, it seems to the Court as reasonable to attribute the unattributed

information about the defendant’s and the defendant’s grandmother’s

addresses to law-enforcement investigation of public records as it is to

attribute the unattributed information about the physical evidence at the

scene to law-enforcement investigation of the scene.

In his affidavit in support of the search warrant in this case, Detective Sowder

averred as follows in relevant parts:

3. On 7-21-10, Darrian Moore was murdered at this home in Hamilton

County. He was shot once in the head while sitting in his car. A .380

caliber shell casing was found at the scene, which information has not

been released.

* * *

5. I have spoken with Dwight Turner. According to Turner, he is

friendly with Wood and Dominique Greer. Wood says that on 7-20, the

three of them discussed robbing Moore. Wood suggested the crime,

saying that the victim carried a First Tennessee Bank Card and that he

could be forced at gunpoint to withdraw $3000 from a teller machine at

night. He provided details of the victim’s schedule.

6. Greer was to do the actual robbery, since he was unknown to the

victim. Greer said that he had bought a .380 pistol.

- 32 -

* * *

8. Turner said that two nights later, Greer called him. He said that he

and Wood had gone to put the plan into action, Greer having gotten

black clothing to wear. Greer told Turner that the victim had struggled,

and that the gun was fired at that time.

* * *

12. Greer lives with his mother at 4916 North Wind Dr., Chattanooga,

Tn. He also stays often with his grandmother at 4715 Bonny Oaks Dr.,

Apt. 608, Chattanooga, Tn. His grandmother has told me that he was at

that address at the time of the murder. I believe that there is probably

cause to believe that these locations may contain the .380 pistol,

ammunition for it, and/or the black clothing worn by Greer.

Defendant relies on this court’s decision in State v. Nightwine, No. M2013-00609-

CCA-R3-CD, 2013 WL 6669393 (Tenn. Crim. App. Dec. 17, 2013) for his argument that

the affidavit was insufficient to provide a nexus that he lived at the residence on North

Wind Drive with his mother. Nightwine involved drug sales to an undercover

confidential informant. In the affidavit supporting the search warrant, there was a

statement that the defendant had moved from 823 Stafford Street to 115 Emory Street.

Id. at *1. The information contained in the affidavit also indicated that the informant had

made two buys from the defendant at 823 Stafford Street and two buys from 115 Emory

Street. Id. at *1-2. The defendant argued that the affidavit did not provide information

that the informant saw drugs inside the residence at 115 Emory Street. Id. at 2-3. The

trial court held that the affidavit “fail[ed] to state that the confidential source made the

purchases from inside the residence since it use[ed] the language ‘at Emory Street;” and

concluded that “no reasonable nexus exists to issue the [s]earch warrant to [s]earch inside

of the residence.” Id. at *3. The State appealed the court’s ruling and argued that the

trial court erred in making a distinction between buys occurring “at” the residence as

stated in the affidavit and “in” the residence. Id. at *3. This court noted:

To begin our analysis, we note that the affidavit does not state, as the

State suggests, that the sales took place at Mr. Nightwine’s residence

located at 115 Emory Street. Rather, the affidavit asserts only that the

sales took place “at 115 Emory Street” without any further specificity as

to the location of the sales or reference to the residence.

Id. at *6. The court looked at State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009), another

case concerning drug buys, and found that the affidavit in Nightwine did not contain the

- 33 -

additional facts that were present in Saine that supported an inference that drugs would be

found in Saine’s residence. In Nightwine, this Court held:

Beyond a physical street address, the affidavit is completely devoid of

any specificity as to the location of the controlled buys or their relation

to the residence located at 115 Emory Street. The only connection to the

residence set out in the affidavit is a conclusory assertion that Mr.

Nightwine resides at that location; however, the affidavit fails to explain

the basis of this conclusion or provide any further connection to the

residence.

The present case involves a murder and evidence related to the murder. The

affidavit sets out that that Defendant had been involved in a plan to rob the victim. The

victim was shot while sitting in his car and Defendant had purchased a .380 caliber

weapon to use in the robbery. Defendant had obtained black clothing to wear during the

robbery, and Defendant told Mr. Turner that the “victim struggled, and that the gun was

fired at that time.” The affidavit further states: “I believe that there is probable cause to

believe that these locations may contain the .380 pistol, ammunition for it, and/or the

black clothing worn by Greer.” It is logical to assume that the weapon used and clothing

worn during the murder and attempted robbery would be located at Defendant’s

residence. The affidavit lists that Defendant is a juvenile, therefore, it is also logical to

assume that he lives with his mother. The affidavit also reflects that Defendant often

stays with his grandmother on Bonny Oaks Drive and that he was at her residence at the

time of the murder.

We find that the affidavit establishes a sufficient nexus between the criminal

activity and the place to be searched, namely Defendant’s mother’s house. Accordingly,

we conclude that the trial court did not err by denying his motion to suppress. Defendant

is not entitled to relief on this issue.

V. Constructive Amendment to the Indictment

Defendant contends that there was a constructive amendment to the indictment

charging him with first degree felony murder because the indictment provided that

Defendant committed the felony murder “during the perpetration of a robbery,” and the

State’s theory at trial was that the murder was committed during the perpetration of an

attempted especially aggravated robbery.

Motions alleging defects in the indictment “must be raised before trial” or the

claim is subject to waiver; however, a party may raise a claim that the indictment “fails to

charge an offense” at any time. Tenn. R. Crim. P. 12(b)(2)(B). The overriding principle

- 34 -

governing indictments is that the accused is constitutionally guaranteed the right to be

informed of the nature and cause of the accusation. U.S. Const. amend. 6, 14; Tenn.

Const. art. I, § 9; see Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000). Our courts have

interpreted this constitutional mandate to require an indictment to “1) provide notice to

the accused of the offense charged; 2) provide the court with an adequate ground upon

which a proper judgment may be entered; and 3) provide the defendant with protection

against double jeopardy.” Wyatt, 24 S.W.3d at 324 (citations omitted). Further, an

indictment is statutorily required to “state the facts constituting the offense in ordinary

and concise language, without prolixity or repetition, in such a manner so as to enable a

person of common understanding to know what is intended and with that degree of

certainty which will enable the court, on conviction, to pronounce the proper judgment.”

Tenn. Code Ann. § 40-13-202. The question of the validity of an indictment is one of

law and, as such, or review is de novo. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).

“A variance between an indictment or a subsequent bill of particulars and the

evidence presented at trial is not fatal unless it is both material and prejudicial.” State v.

Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000)(citing State v. Moss, 662 S.W.2d

590, 592 (Tenn. 1984)). “A variance between an indictment and the proof in a criminal

case is not material where the allegations of proof substantially correspond, the variance

is not of a character which could have misled the defendant at trial[,] and is not such as to

deprive the accused of the right to be protected against another prosecution for the same

offense.” Moss, 662 S.W.2d at 592. It is not reversible error when a defendant is

sufficiently aware of the charge and is able to adequately prepare for trial. Id. Contrary to

the Defendant’s assertion, we conclude that the indictment described a crime under

Tennessee law in that it referenced the appropriate statute for first degree felony murder

and provided Defendant with sufficient notice to prepare for trial.

Defendant cites State v. Goodson in support of his contention that his conviction

should be reversed because the proof at trial did not correspond to the indictment on

which Defendant was convicted. 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001).

However, the Goodson decision does not apply to the facts in Defendant’s case. In

Goodson, the defendant was indicted for driving on a revoked license; however, the

evidence at trial “established the separate offense of driving on a suspended license.” Id.

at 241-42. This court held that “[t]he proof introduced at trial regarding the [defendant’s]

suspended driving status constituted a constructive amendment of the indictment by

broadening the grounds for conviction.” Id. at 245. In contrast, we believe that the proof

at Defendant’s trial corresponded to the indicted offense of felony murder in the

perpetration of a robbery. As charged in this case, first degree felony murder is “[a]

killing of another committed in the perpetration of or attempt to perpetrate any . . .

robbery[.]” Tenn. Code Ann. § 39-13-202(a)(2)(emphasis added).

- 35 -

The indictment was sufficient in this case to notify Defendant that he was charged

with felony murder in the perpetration of or attempt to perpetrate any robbery. State v.

Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000)(holding that an indictment that provides

“notice to the accused will be considered sufficient to satisfy both constitutional and

statutory requirements”). The indictment and the proof substantially corresponded and

the indictment, which referenced the first degree murder statute, provided Defendant with

sufficient notice and protection against double jeopardy. Moreover, Defendant was also

indicted in a separate count for attempted especially aggravated robbery. Therefore, he

was on notice that he would have to defendant against that charge. Defendant has not

alleged nor demonstrated that he was prejudiced in any way by the indictment. The

record does not show that the State attempted to rely on any theories that were not fairly

embraced in the allegations made in the indictment. State v. Mayes, 854 S.W.2d 638, 640

(Tenn. 1993)(citations omitted). Also, Defendant was not convicted of a ground not

included in the indictment. Goodson, 77 S.W.3d at 244. Defendant is not entitled to

relief on this issue.

VI. Sufficiency of the Evidence

Defendant contends that the evidence at trial was insufficient to support his

conviction for first degree felony murder. Specifically, Defendant asserts that the

evidence failed to show that a robbery occurred and that the “major testimony” came

from two accomplices. The State responds that the evidence was sufficient to sustain

Defendant’s convictions.

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); 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).

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

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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)).

It is well settled “that a conviction may not be based solely upon the

uncorroborated testimony of an accomplice to the offense.” State v. Bane, 57 S.W.3d

411, 419 (Tenn. 2001) (citing State v. Stout, 33 S.W.3d 531 (Tenn. 2001); State v.

Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn.

1964)). By way of explanation, our supreme court has stated:

There must be some fact testified to, entirely independent of the

accomplice's testimony, which, taken by itself, leads to the inference, not

only that a crime has been committed, but also that the defendant is

implicated in it; and this independent corroborative testimony must also

include some fact establishing the defendant's identity. This

corroborative evidence may be direct or entirely circumstantial, and it

need not be adequate, in and of itself, to support a conviction; it is

sufficient to meet the requirements of the rule if it fairly and legitimately

tends to connect the defendant with the commission of the crime

charged. It is not necessary that the corroboration extend to every part of

the accomplice's evidence.

Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler,

373 S.W.2d 460, 463 (Tenn. 1963).

As charged in this case, first degree felony murder is “[a] killing of another

committed in the perpetration of or attempt to perpetrate any . . . robbery[.]” Tenn. Code

Ann. § 39-13-202(a)(2). “Robbery is the intentional or knowing theft of property from

the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-

13-401(a).

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“Knowing” means that a person acted knowingly with respect to the

conduct or to circumstances surrounding the conduct when the person is

aware of the nature of the conduct or that the circumstances exist. A person

acts knowingly with respect to a result of the person’s conduct when the

person is aware that the conduct is reasonably certain to cause the result.

Tenn. Code Ann. § 39-11-106(a)(20). “Intentional” is defined above. To convict for

especially aggravated robbery, the State has to prove that the defendant robbed the victim

with a deadly weapon and the victim suffered serious bodily injury. Id. § 39-13-403(a).

A person commits criminal attempt when he or she acts with intent to complete a course

of action that would constitute the offense, and the conduct constitutes a substantial step

toward the commission of the offense. Tenn. Code Ann. § 39-12-101(a)(3).

Viewing all reasonable inferences in favor of the State, the evidence showed that

Defendant murdered the victim during an attempted especially aggravated robbery.

Dwight Turner testified that he, Defendant, and Franklin Wood had discussed robbing the

victim because they knew that the victim worked and that he had been saving some

money. Also, the victim and Mr. Wood had been friends, but they had a disagreement

that ended their friendship. The plan was to hold the victim at gunpoint while he was

parked in the driveway. They planned to place a covering over the victim’s head and

drive him to the bank and “get him to tell the code to the ATM to withdraw the money

out of the bank.” After the robbery, the plan was to drop Defendant off and drive the

victim’s car to a “chop shop” in Atlanta.

A second conversation about the robbery took place between Mr. Turner and Mr.

Wood at Eric King’s house on the night of the murder. This conversation was

corroborated by Angel Kilgore, who was also present during the conversation, and

Edward King who heard a portion of the conversation. Ms. Kilgore verified that Mr.

Turner was afraid that Mr. Wood would “snitch” on them if the robbery occurred, and

Mr. Turner eventually said that he did not want to participate in robbing the victim. She

also said that Mr. Turner and Mr. Wood did not plan to kill the victim, but planned to hit

him with the gun and scare him. She also said that they intended to buy school clothes

with the money from the robbery and that they were going to dress all in black for the

robbery. Sometime after the conversation between Mr. Wood and Mr. Turner, Defendant

arrived at Mr. King’s residence. Mr. Turner testified that Defendant wanted to rob the

victim that night. Mr. Turner testified that Mr. Wood refused to go with Defendant to

commit the robbery because he had to be home due to his curfew. Mr. Turner testified

that he told Defendant that he was too intoxicated to go with him. Defendant then left.

This information was also corroborated by Ms. Kilgore. Mr. Turner testified that

Defendant later called him and said that he thought he had murdered the victim.

Defendant told him that the victim began “tussling” with him and the gun “went off.”

The following day, Mr. Turner testified that he saw Defendant riding his bicycle.

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Defendant again said that he thought he had murdered the victim. Mr. Turner further

testified: “And he proceeded to say that, you know, he didn’t trust nobody no more. He

was like anybody who say something, brother, I got somebody who will take them off the

map. Which was saying that he would kill them. No witnesses, nothing.”

Franklin Wood testified that there was a conversation prior to the victim’s murder

about stealing guns from the victim. He claimed that the conversation took place more

than a year prior to the murder. Mr. Wood also testified that just prior to the murder he

was at a gathering at Edward King’s house that included Mr. Turner and Ms. Kilgore. He

also testified that Mr. Turner indicated that he was afraid that Mr. Wood would “snitch”

about robbing the victim because Mr. Wood and the victim had been friends. Mr. Wood

also testified that Defendant arrived at Mr. King’s house later that night. Mr. Wood

testified that he did not get into the car with Defendant because he had to be home in time

for curfew. He said that Mr. Turner began crying and said that he did not want to get into

trouble. Defendant then left.

Mr. Wood testified that on the day of the murder, Defendant had texted him and

said that he needed some shoes and a shirt. Defendant also said that he had robbed

someone on “58.” He later met Defendant at the bottom of the hill near Mr. Wood’s

house. Defendant said that he had robbed a “white guy on 58 at the liquor store.”

Defendant flashed money that he had taken from the man, and Defendant also had a gun.

Mr. Wood noted that Defendant was barefoot, and he was wearing a black t-shirt with a

superman emblem. Mr. Wood testified that he and Defendant walked to the corner of the

street where the victim lived, and Defendant asked, “[Where your boy at[?]” They both

looked toward the victim’s house and saw that the victim was not at home. Mr. Wood

testified that he left Defendant standing in his next door neighbor’s yard, and he knew

what Defendant planned to do because Defendant “had a gun and he robbed somebody

before and I knew I guess when he was over there and he was going to do it.” Mr. Wood

testified that he later missed three calls from Defendant. He called Defendant back at

approximately 10:00 p.m., and Defendant asked if police were there. Defendant also

said, “[Y]ou ain’t seen me, you ain’t heard from me.”

Mr. Wood testified that after he and Defendant were arrested and while they were

in juvenile court, Defendant said that the victim was “bucking the whole time and he

knew [the victim] knew who he was and [the victim] tried to go for the keys and his head

hit the gun and it went off.” During a recorded call, Mr. Wood told Mr. Turner that he

told Defendant where the bank was at and that it was the one by the mall. Mr. Wood also

told Mr. Turner that Defendant planned to “sit out there until [the victim] got off.” Mr.

Wood admitted that he knew Defendant was going to rob the victim when he left

Defendant standing near the victim’s house. Mr. Wood testified that he thought the gun

Defendant had was a chrome semiautomatic.

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Sabretta Linder testified that while Defendant was incarcerated, he asked her to

look for a gun that he referred to as his “bitch.” She thought that the gun was registered

to Defendant’s brother, Kevin Greer, and that it was a silver “.38” [sic] caliber weapon.

Defendant told her that the gun was supposed to be wrapped in a dark-colored sock and

was at his grandmother’s house near a bottle in the bushes outside of the house.

Although Ms. Linder and police looked for the weapon behind the house, they did not

find it. However, police found Mr. Carroll’s wallet behind the apartment complex, and

they also found two black t-shirts. In her statement to Detective Hinton, Ms. Linder told

him that Defendant was involved in the victim’s murder and that Jamicah drove the car

that he was riding in. During a recorded jail call, Defendant told Ms. Linder to tell

Jamicah Moore that he needed to stay away from the police. Defendant also told her to

tell Mr. Moore what to say if the police talked to him.

A search warrant was executed at Defendant’s residence. Police recovered a black

superman t-shirt, a fragment from a rubber glove with Defendant’s DNA on the inside, a

live .380 caliber round of ammunition, and black tennis shoes. There was also a

handwritten note that appeared to be an attempt to create an alibi. There was a spent .380

shell casing recovered from the murder scene, and the bullet recovered from the victim’s

head was a .380 auto caliber bullet. There was testimony by Detective Merritt that

Defendant’s cell phone was connected the same cell phone tower as the victim’s phone at

the time of the murder. We also note that prior to the victim’s murder, Defendant robbed

Steve Carroll of his wallet and cell phone as he was leaving work. Defendant used a

small silver gun that Mr. Carroll thought was an automatic. Mr. Carroll’s cell phone was

used two hours before the victim’s murder to call Defendant’s associate, Jamicah Moore.

As noted earlier in this opinion, Mr. Carroll’s wallet was found behind the apartment

complex where Defendant’s grandmother lived.

We note that Defendant did not specifically challenge the sufficiency of the

evidence to support his separate conviction for attempted especially aggravated robbery.

Arguably, he has therefore in effect conceded that crucial proof. However, it seems that

Defendant has at least implicitly challenged the sufficiency of the evidence of attempted

especially aggravated robbery. The evidence is certainly sufficient to support the

conviction of attempted especially aggravated robbery. Also, from a review of all of the

evidence, a rational jury could find Defendant guilty of first degree murder during an

attempt to commit especially aggravated robbery. The jury obviously accredited the

testimony of the State’s witnesses, and any accomplice testimony was sufficiently

corroborated. Defendant is not entitled to relief on this issue.

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VII. Cumulative Error

Defendant contends that the errors raised in his brief amount to cumulative error

which entitle him to a new trial. However, because we have determined that Defendant is

entitled to a new trial based on an erroneous jury instruction, this issue is moot.

____________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE

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