State of Tennessee v. Damarkus Lowe

07/06/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 23, 2018 Session

STATE OF TENNESSEE v. DAMARKUS LOWE

Appeal from the Criminal Court for Knox County

No. 99837A Steven W. Sword, Judge

No. E2017-00435-CCA-R3-CD

The Defendant, Damarkus Lowe, appeals his jury conviction for first degree murder, for

which he received a sentence of life imprisonment. In this direct appeal, the Defendant

alleges the following errors: (1) that the evidence was insufficient to support his

conviction, challenging the evidence establishing premeditation and criminal

responsibility, and alleging that the accomplice testimony was not sufficiently

corroborated; (2) that admission of a packet of letters sent to the police anonymously,

which contained a note from the anonymous source and three letters allegedly authored

by the Defendant that he mailed from jail to his associates, was improper because the

letters were not properly authenticated, contained inadmissible hearsay, violated his

confrontation rights, and were more prejudicial than probative; (3) that recorded jail calls

containing inadmissible hearsay were erroneously admitted in violation of his

confrontation rights; (4) that testimony regarding his “street name” of “D-Ru” was

irrelevant and more prejudicial than probative; (5) that the trial court acted in violation of

Brady v. Maryland, 373 U.S. 83, 87 (1963), when it failed to compel the State to disclose

the name of a jailhouse informant who claimed to have information related to the victim’s

murder; and (6) that the State committed prosecutorial misconduct during its closing

argument by improperly vouching for several witnesses’ credibility requiring plain error

relief. Following our review of the record and the applicable authorities, we affirm the

judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

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

Forrest L. Wallace, Knoxville, Tennessee, for the appellant, Damarkus Lowe.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Randall E. Nichols, District Attorney General; and Leslie Nassios,

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

OPINION

FACTUAL BACKGROUND

Following the April 2012 shooting death of William Watson (“the victim”), a

Knox County grand jury charged the Defendant, along with Michael May, with the first

degree premeditated murder of the victim and two alternative counts of especially

aggravated kidnapping involving Myshauna Blair. See Tenn. Code Ann. §§ 39-13-202,

305. The Defendant proceeded to a trial by jury on June 30 through July 3, 2014.

A. Eyewitness testimony. Jonathan Borden testified that, on April 1, 2012, he was

working on his broken-down car, a gray Toyota that was parked near the intersection of

Mississippi Avenue and Toms Street in Knoxville. He lived at the “top of the hill” on

Mississippi Avenue, and a football field was on the other side of street from his house

and the intersection. According to Mr. Borden, while he was working on the car, he saw

a silver Buick, which was being followed by a green Corvette, stopped near the

intersection. Mr. Borden said that, after the cars came to stop “side by side,” an argument

ensued between the driver of the Corvette and a woman who got out of the Buick. Mr.

Borden “ignored it” and returned to working on his car. “The next thing” Mr. Borden

knew, he “looked back up” and saw “two guys in a hoodie” shooting into the Corvette.

According to Mr. Borden, one shooter was standing on the side of the Corvette and the

other was standing in front. Mr. Borden said that, after the shooting, the people in the

silver Buick immediately “[j]ust took off.” Mr. Borden estimated that he was

approximately thirty or forty feet away from where the shooting took place.

Mr. Borden testified that, after the Buick left, he went to check on the passenger

inside the Corvette. According to Mr. Borden, the Corvette door was open, and he saw

that the passenger had suffered multiple gunshot wounds. He remained on the scene until

police arrived. Although Mr. Borden’s father and several others were nearby, Mr.

Borden opined that “they didn’t really see” what happened because they “were up

front[.]”

On cross-examination, Mr. Borden revealed that, after the shooting in this case, he

had suffered a head injury in a motor vehicle accident that caused him to have difficulty

remembering things. Mr. Borden recalled being interviewed by the police in the early

morning hours after the shooting, but he could not recall the details of that interview.

Accordingly, the parties agreed to admit Mr. Borden’s prior police statement as

substantive evidence. In the statement he gave to Knoxville Police Department (“KPD”)

Investigator A.J. Loeffler, Mr. Borden provided further details about the argument that

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took place between the vehicles’ occupants: “Like something about, ‘you like hit my car,

you hit my car.’ And then dude was like . . . ‘what are you talking about?’ And then he

was like ‘you hit my third anniversary new Corvette.’” Furthermore, Mr. Borden said

that he returned to working on his car, and when he “look[ed] up,” he saw a young,

African-American male passenger emerge from the Buick with “a dumb look on his

face[,] [l]ike ‘what’s going on.’” Mr. Borden continued by telling Investigator Loeffler

that the next time he looked up, he observed two other men shoot multiple times into the

Corvette—one was shooting into the windshield and the other was near the back of the

Corvette. He did not know how these two men arrived on the scene, stating that they

“just came out.” According to Mr. Borden, the man in “front shot more than the [man in

the] back.” During the interview, Mr. Borden was able to give the police a partial

identification of the Buick’s license plate and identifying information about the Buick

itself. In addition, Mr. Borden said that he saw a semi-automatic pistol, possibly a 9

mm. Mr. Borden was unable to identify anyone from a photographic line-up.

Angela Branch, Mr. Borden’s girlfriend, testified that she also witnessed the April

1, 2012 shooting. According to Ms. Branch, she was sitting in the front seat of Mr.

Borden’s Toyota “[a]t the bottom of the hill from his house” around 4:00 p.m. that day.

She testified that, while she was sitting there, she saw two cars come “flying down”

Toms Street; that they “sort of ran the stop sign”; that they “then pulled up a little bit

more” and came to a stop; that “the guy in the Corvette was yelling, ‘You f--cked up my

car’”; that “the driver of the Buick started to step outside of her car”; and that “they were

talking.” According to Ms. Branch, there was a passenger in the Buick as well, and she

saw both “the driver and the passenger get out” of the car and stay beside the passenger-

side door. As they conversed, Ms. Branch watched “two guys come running” through the

football field, at least one had his weapon drawn at that time, and they joined the

argument and then started shooting. According to Ms. Branch, the two shooters were

African-American and wearing all black, and one of the shooters was positioned at the

front of the Corvette and the other at the back. She testified that she heard a total of

“three to five” gunshots. When the shots ceased, they “all jumped into the Buick and

took off.”

Ms. Branch testified that she, Mr. Borden, Mr. Borden’s father, and Timothy

Doane, all went to check on the driver of the Corvette after the Buick left. She saw

through the open driver-side door that the driver was bleeding from his head. Ms. Branch

confirmed that she gave a statement to Investigator Loeffler during the early morning

hours of the following day and that she was unable to identify anyone from a

photographic line-up.

On cross-examination, Ms. Branch explained that the two cars were “[n]ot

necessarily [parked] side by side, but kind of parallel.” Ms. Branch further testified that

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the driver of the Corvette exited his vehicle, but “he stayed right beside his car too.” Ms.

Branch said that the driver of the Buick was wearing all black and a hooded sweatshirt.

She could not recall what the Buick’s passenger was wearing. According to Ms. Branch,

the passenger of the Buick was male, and she was also “[p]retty sure” that the driver of

the Buick was male. She was positive that both of the men that came running through the

field fired their weapons. Furthermore, she testified that the Buick left “immediately

after the people got back” inside and that there was no hesitation.

Ms. Branch agreed that, when she was interviewed by Investigator Loeffler, she

told him that the driver of the Buick was involved in the shooting. However, she

explained that she “just got confused by everyone else’s . . . stories from that night.”

According to Ms. Branch, both Mr. Borden’s father and Mr. Doane said that the driver

was involved. Furthermore, Ms. Branch confirmed that she told the defense investigator

that the driver of the Buick “looked like a girl.” On redirect, Ms. Branch averred that she

was “trying to do [her] best to remember.”

B. Myshauna Blair’s testimony. Initially, Ms. Blair confirmed that she knew the

Defendant and was asked, “[D]o you know him by any other name other than

Damarkus?” Ms. Blair replied, “D-Ru.” Ms. Blair also testified that she knew Michael

May because they had grown up together in the Knoxville community of Mechanicsville.

In April 2012, Ms. Blair was in the process of acquiring a silver Buick “from a

woman who live in the neighborhood.” Ms. Blair was still paying for the car, and it had

not yet been registered in Ms. Blair’s name. At that time, Ms. Blair was unemployed and

was “hanging around with” Mr. May and “a few other people.” During the afternoon

hours of April 1, 2012, Mr. May called Ms. Blair for a ride, and she agreed. According to

Ms. Blair she did not have a phone of her own at that time, so Mr. May reached her on

her sister’s telephone. Ms. Blair testified that she picked up Mr. May, that he was

accompanied by the Defendant, and that she dropped the pair “off in Mechanicsville in

front of Maynard Elementary” around 1:30 or 2:00 p.m. Mr. May gave Ms. Blair his

phone so he could call her for a ride when they were ready to be picked up. Around 3:00

p.m., after Ms. Blair had completed filling out job applications on Western Avenue, Mr.

May used the Defendant’s phone and called her to come pick them up from the football

field known as “Raider’s field.” Ms. Blair knew it was the Defendant’s phone because

the number “was logged in the phone as D-Ru.”

After receiving Mr. May’s phone call, Ms. Blair made a U-turn to return to the

Raider’s Field area, and when she did so, she collided with the victim, who was driving

his green Corvette. Ms. Blair fled the scene because she did not have a license or

insurance, but the victim pursued her. Upon arriving at Raider’s Field, she stopped near

the intersection of Mississippi Avenue and Toms Street, and the victim “pulled up right

beside” her. According to Ms. Blair, her window was already rolled down, and when the

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victim rolled his window down, he started telling her that she “had just wrecked his

[thirtieth] anniversary car, and that [she] was going to pay for it.” While the victim was

“mad” at first, he “calmed down,” and they were trying to work out “a payment plan.”

According to Ms. Blair, she had some “money in [her] pocket at the time” and was going

to give it to the victim because his car only suffered minor damage. Furthermore, she

“was going to give him [her] information and everything to get set up on a payment

plan.”

While they were making arrangements, Mr. May, the Defendant, and another

individual, whom Ms. Blair referred to as “Spruce,” came through the football field

towards the location where she and the victim were conversing. According to Ms. Blair,

the Defendant and Mr. May had their “guns out” at that time. She described the guns as

revolvers, “little cowboy guns.” Ms. Blair believed that the victim was scared and that he

“was probably about to take off and run.” However, as soon as the men arrived at their

location, Mr. May went to the front of Ms. Blair’s car and the Defendant went to the back

of the victim’s car. Spruce did not have a weapon and got inside Ms. Blair’s car.

Ms. Blair said that Mr. May shot first, firing through the victim’s front window

three times, and that the Defendant then started shooting through the victim’s back

window. She saw the victim’s “head go back” and “blood everywhere.” According to

Ms. Blair, the men “hopped” into her car and told her “to pull off.” Ms. Blair said that

she “sat there for a minute” before she drove away because she was scared having “never

been in a situation like that” previously. Ms. Blair further described that, once the men

were inside her car, it seemed like they “didn’t care” about what they had done, “like it

was a joke,” or they were doing “it for fun.” Ms. Blair said that she dropped the men off

at Walter P. Taylor Homes and went home and cried.

Ms. Blair testified that, later that evening around 8:00 p.m., she went to visit her

girlfriend, Kasandra Flood, who worked at Shannondale Nursing Home. According to

Ms. Blair, her sister went with her to the nursing home. Ms. Blair said that, when she

arrived at the nursing home, she “started busting out crying” and told them what had

happened. Ms. Blair said that she did not go to the police because the Defendant

threatened to kill her if she talked. Ms. Blair averred that she was not a willing

participant in these events.

Ms. Blair testified that, after these events, she moved away from Knoxville

because she was being threatened and her mother was being harassed. According to Ms.

Blair, her mother’s house had been broken into four times in “retaliation,” causing her

mother to “disown[]” Ms. Blair. Ms. Blair further explained that her mother was scared

because the Defendant’s “people” had “money on [Ms. Blair’s] head.”

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On cross-examination, Ms. Blair confirmed that she spoke with Investigator

Loeffler on April 4, 2012, about these events and that she was on probation at that time.

She clarified that Mr. May called her twice, once to tell her to come pick them up and

another time to provide an exact location. Ms. Blair testified that, when Mr. May arrived

on the scene, he asked the victim “what was going on,” and the victim repeated the events

of the accident and said “y’all” are going to pay for the damage. Mr. May then opened

fire. Ms. Blair maintained that the victim never threatened to shoot her or “use violence

against” her, despite her statement to Investigator Loeffler that the victim said, “I’m

about to shoot the f--k out of you.” She explained that she made this statement to

Investigator Loeffler because she was scared.

Ms. Blair maintained that the victim was not in possession of a weapon during

these events, that she arrived at Raider’s Field alone, that no one else was in the car with

her at that time, and that she never got out of her vehicle. She further testified that, after

the shooting, she was in “shock” and that approximately two to three minutes elapsed

once the men got inside her car before she drove away. Ms. Blair said that Mr. May “put

the gun to” her and ordered her to drive away from the scene. Ms. Blair also testified that

she returned Mr. May’s phone to him when she dropped them off at Walter P. Taylor

Homes, and she averred that she had no additional contact with Mr. May or the

Defendant for “the rest of the day.” Additionally, Ms. Blair said that the men were

wearing all black but that she was wearing a gray shirt.

When asked if anyone had given her a gun “to get rid of,” Ms. Blair responded in

the negative. She averred that the men took their weapons with them when they exited

her car. Furthermore, Ms. Blair was told that she would not be prosecuted in exchange

for her cooperation in this matter, and her misdemeanor probation “was squashed” in

order to allow her to leave town after she was threatened.

C. Police Investigation. Mr. May’s cell phone records for his number ending in

66181 were entered into evidence. The records showed that, on April 1, 2012, several

calls were placed between 6618 and a number ending in 7379. Three calls were made

from 6618 to 73792 at approximately 4:01 p.m., 4:02 p.m., and 4:09 p.m. At 4:15 p.m.,

Mr. May’s phone received a call from 7379 that lasted for thirteen seconds. Also, it was

noted that, on that same day, multiple calls were placed between 6618 and another

number ending in 4421. The calls between these two numbers started at 12:26 p.m., and

the last one was placed at 11:58 p.m. that day.

1

For purposes of anonymity and clarity, we will refer to telephone numbers using the last four digits

only.

2

This appears to be the Defendant’s phone number.

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Lieutenant Steven Patrick testified that he worked for the Knox County Sheriff’s

Department and that he maintained records of telephone calls made from the Knox

County Detention Facility. He stated that he also kept records of incoming and outgoing

mail from the detention facility, as well as records of visitation.

Lieutenant Patrick relayed that Trinity Peoples and Desharya Taylor were on the

Defendant’s permitted visitor list. According to Lieutenant Patrick, Ms. Taylor visited

the Defendant on June 1, 2012, at 3:00 p.m. Ms. Taylor visited the Defendant six more

times in 2013 and 2014.

Lieutenant Patrick confirmed that all of the inmates’ calls were recorded, except

for “legal calls.” According to Lieutenant Patrick, an inmate must use their unique

twelve-digit identification number and state their first and last name “to authenticate for

the computer before it will allow them to proceed” to place a call. Four of the

Defendant’s phone calls were then played for the jury—calls occurring on April 18,

2012; June 27, 2012; June 28, 2012; and July 5, 2012. The April 18, 2012 call was

described as “very brief,” and no transcript of that call was entered into evidence.

Transcripts of the June and July 2012 calls were entered into evidence for identification

purposes only.3 While a disc purporting to contain the audio recording of these phone

calls was entered into evidence, none of the files on that disc match the conversations

memorialized in the transcript. The thirty-seven calls recorded on that disc appear to be

from 2013.

The transcript reflects that, during the call on June 27, 2012, the Defendant is

referred to and responds to the nickname “Ru.” While discussing court dates and jail

time with the unidentified female caller, the Defendant said, “I don’t know what....I’m

gonna try and see if they offer me at least 25-30 or something…man, I don’t know. But

see I... I... I’ll take anything but life though...(chuckle). You feel me…for real.”

According to the transcript of the call on June 28, 2012, the Defendant identifies himself

as “D-Ru.” The following exchange also took place:

[THE DEFEDANT]: I just came back from court man today man.

[UNIDENTIFIED PERSON]: What they talking about?

[THE DEFEDANT]: See my s--t got…went from grand jury… they kept

my s--t at 1st degree murder and that motherf--king aggravated kidnapping

man.

[UNIDENTIFIED PERSON]: D--n.

…(unintelligible due to both talking at once).

3

The trial court instructed the jury that transcripts were not evidence but were merely an aid to help them

follow along.

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[UNIDENTIFIED PERSON]: Well Mysha[u]na…motherf--ker was

looking for her.

[THE DEFEDANT]: Man, n---ers ain’t looking for her man. I ain’t even

worried about it man. F--k them n---ers man. Real talk man…real talk.

For all that s--t I been doing for them b---h a-- n---ers, they ain’t never did

s--t and I ain’t really talk man. They said…they….

The transcript of the last call placed on July 5, 2012, reflects that the Defendant spoke

with his Aunt Mary and another unidentified individual. The relevant portion of that call

is as follows:

[AUNT MARY]: Okay, now uh…uh…when is your trial?

[THE DEFENDANT]: I’m not going to trial. I’m gonna…I’m…I’m trying

to get a plea bargain so I can make a plea. I’m not trying to go to trial. If I

go to trial, then I’m gonna get the same time my daddy got and I’m not

trying to…I’m trying to get about 15 years at the most.

[AUNT MARY]: Hmm…okay. So when is all that gonna happen?

[THE DEFENDANT]: Uh…I go to court on the 12th of this month and

they might come at me with a plea then. But I ain’t trying to take no 25 or

85 or no 20 to 85. I’m gonna try to see if they’ll give me 15-85 and

I’ll….and I’ll sign for that but, I’m [Range] 1 so I’m gonna…I’m gonna get

some kind of nice little deal cause it’s my first time going to prison.

[AUNT MARY]: Um…you don’t think you can get out of it?

[THE DEFENDANT]: Uh…no.

....

[UNIDENTIFIED PERSON]: So what did…what did they end up giving

you?

[THE DEFENDANT]: First degree murder and aggravated kidnapping.

[UNIDENTIFIED PERSON]: Dang boy what did you do…(chuckle)?

[THE DEFENDANT]: I didn’t…I ain’t kidnapped nobody. She…she…she

lying on me but….

[UNIDENTIFIED PERSON]: Uh huh.

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[THE DEFENDANT]: …but Knoxville…our law so messed up that s--

t...that….it…all she got to do is say I did it and I did to them folks so…

[UNIDENTIFIED PERSON]: Oh yeah, that’s the truth. That’d be the truth

so uh…how long…25?

[THE DEFENDANT]: Um, I’m trying to see if I can get 18 to…I mean, 15

to 85, which will mean like about 12…uh…11 or 12 years. But I ain’t…I

ain’t trying to get what my daddy got at all. I ain’t…I ain’t trying to get it.

And if I go to trial, they gonna hit me with 51 years or more, so I ain’t….I

ain’t….

[UNIDENTIFIED PERSON]: Oh hell yeah.

[THE DEFENDANT]: …trying for that.

[UNIDENTIFIED PERSON]: So what other way…what other way around

it can you go for?

[THE DEFENDANT]: Uh, I guess just do a plea and…and be a man and go

to prison.

[UNIDENTIFIED PERSON]: Ah…you done the time…you done the

crime; you might as well go ahead and do that time though…(chuckle).

[THE DEFENDANT]: Yeah and…

[UNIDENTIFIED PERSON]: I hate to say it….

[THE DEFENDANT]: Right.

[UNIDENTIFIED PERSON]: I hate to say it, but you know the rules…you

know the street rules.

[THE DEFENDANT]: Uh huh.

[UNIDENTIFIED PERSON]: You know the street rules; you get caught,

you gotta do it….(chuckle).

[THE DEFENDANT]: I know. If I do the crime, I got to do the time.

[UNIDENTIFIED PERSON]: Dude…dude, for real…(chuckle)? Was you

mad that day or something?

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[THE DEFENDANT]: Huh?

[UNIDENTIFIED PERSON]: Were you mad that day?

[THE DEFENDANT]: Naw, I wasn’t…no, I wasn’t mad; I just…it wasn’t

even…it…it was a lot of stuff going on.

Next, Lieutenant Patrick described the process for tracking the detention facility’s

incoming and outgoing mail. According to Lieutenant Patrick, an inmate will submit an

outgoing letter to his pod officer, who then turns the letter into the mailroom, where it is

stamped and sent to the post office. The letters were only opened if the facility had

received a request from the District Attorney’s Office “for a known security threat” or if

an inmate was “on the watch list.” Moreover, Lieutenant Patrick stated that he had not

“encountered an experience where an inmate might forge another inmate’s name.”

The log for the Defendant’s outgoing mail reflected that he mailed letters to (1)

Deshayra Taylor on May 23, 2012; July 19, 2012; February 28, 2013; July 7, 2013; July

25, 2013; August 30, 2013; September 19, 2013; October 1, 2013; October 16, 2013;

December 5, 2013; December 12, 2013; and April 8, 2014; and (2) Trinity Peoples on

April 11, 2012; May 1, 2012; May 23, 2012; June 7, 2012 (addressed to 322 McConnell

Avenue); July 16, 2012; August 10, 2012; August 21, 2012; September 7, 2012;

September 13, 2012; September 27, 2012; October 12, 2012; October 25, 2012;

November 16, 2012; December 14, 2012; January 3, 2013; May 8, 2013; May 24, 2013;

June 6, 2013 (2 letters); June 21, 2013; August 7, 2013; August 19, 2013; November 1,

2013; December 5, 2013; and January 19, 2014. The Defendant also received

approximately forty-three letters from these two women during this timeframe, thirteen

from Ms. Taylor and thirty from Ms. Peoples.

Investigator A.J. Loeffler was assigned to the Violent Crimes Unit of the KPD and

was involved in the investigation of the victim’s murder and was responsible for

interviewing the witnesses. He recalled interviewing April Lyons and Timothy Doane at

the scene, as those were the individuals who spoke with 9-1-1. Later, he “realize[d] that

there were other people who were present at the time of the shooting that [he] needed to

talk to,” including Angela Branch and Jonathan Borden. From his interviews with these

witnesses, Investigator Loeffler learned that a silver Buick was the suspect vehicle and

that a partial of the license plate had been obtained. While the driver had been originally

described as male, the investigation ultimately focused on Myshauna Blair, who was

known to have a masculine appearance. In addition, during Investigator Loeffler’s

interviews, several other “names came up” as possibly being involved in the shooting,

including “a D-Ru, a Mook Mook, [and] a D-Bo.”

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Ultimately, Investigator Loeffler was able to track down Ms. Blair. As

Investigator Loeffler approached Ms. Blair’s mother’s residence on April 4, 2012, he saw

the silver Buick parked outside. According to Investigator Loeffler, at that time, Ms.

Blair “very nonchalantly” came out of the house eating a sandwich. He informed Ms.

Blair that her car would be impounded “[be]cause there was evidence on the car, as if

there were paint scrapings, like . . . it came into contact with a green vehicle.” Ms. Blair

agreed to come to the police station for questioning. Investigator Loeffler opined that

Ms. Blair “was very forthcoming” during interview, “want[ing] to tell her story.” Based

upon the information Ms. Blair provided during interview, Investigator Loeffler prepared

a photographic array. According to Investigator Loeffler, Ms. Blair was able to identify

Michael May, but she did not “know full names or correct names,” rather only “street

names” for the other two individuals. Ms. Blair was the only witness who identified Mr.

May and the Defendant from photographic line-ups.

Investigator Loeffler also provided details about the scene following his arrival,

including the Corvette’s location, the bullet holes in the windshield, and the presence of

blood on the driver’s seat and on the ground. According to Investigator Loeffler, the

bullet holes he observed were consistent with the shooter’s standing on the front

passenger’s side of the victim’s car. Investigator Loeffler also attended the autopsy and

opined that the victim’s wounds were also consistent with being shot from this angle

because “the entrance wounds were on the right side of [the victim’s] body.”

Next, Investigator Loeffler discussed some letters that came into the possession of

the KPD on July 15, 2012.4 According to Investigator Loeffler, the “Teleserve unit”

opened the packet of letters “because it wasn’t addressed to anybody except” the KPD;

and once the letters were read, they were forwarded to Investigator Loeffler. The

packet’s envelope bore a postmark of July 9, 2012.

Inside the packet was another envelope, an anonymous note, and three handwritten

letters. The envelope inside was addressed to Trinity Peoples at 322 McConnell Avenue

and showed a return of Damarkus Lowe at the Knox County Detention Facility’s address.

All three letters were dated June 6, 2012, and were signed “Y.G. D-Ru” or “Y.G. D-Ru

TREE.” The entire packet was introduced as an exhibit at trial.

Investigator Loeffler read pertinent portions of the letters for the jury. In the letter

addressed to “Trinity,” the author noted that “Shayra” came to visit him and then made

the following statements:

4

KPD Officer Rebecca Byers testified that she was responsible for securing the letters and logging them

into evidence on July 15, 2012.

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I’m starting to face the fact that I’m about to do life. . . . I got letters in here

for JD and Weezy. Make sho duh get it, and tell Weezy to write back, but

watch what he say. WB soon. I love you, sistah. Y.G. D-Ru. P.S. . . . [I]f

you read the letter from Weezy and JD, then don’t tell nobody about it, and

don’t let nobody read ‘em who ain’t Trees. Not no home girls on nu10, not

even mama.

Investigator Loeffler then read the letter addressed to “Weezy.” In this letter, the author

asked, “And then I need you to do something important for me. I need you to get Little

Tree and Mal-Ru, and they need a put in some work for the brothers, me and Murder-

Ru.” Investigator Loeffler testified that he understood Murder-Ru to “be a nickname or

street name of Michael May.” The author then identified “Mashonna” as the “da b---h

dats snitchin’ on me and Murder” and continued,

Little Tree know who she is. She living by the Heights, and she got a sistah

that live in some apartments, but the Mashonna b---h be over there too. I

need them to find out where it’s at, and air that motherf--ker, the f--k out.

Both places. Ru talk. She can get me and Murder life in prison. If y’all

can’t find out, then my family pooh might know her number . . . and if she

don’t know the Bronson and Braxton sistah Blair know for sure. . . . [T]hey

need a shoot both places up and probably burn her crib down by the

Heights. I don’t give a f--k who in it, kids and all. Just remember, no face,

no case. Ru talk. This part of banging, and that’s what brothers do for each

other. After they do that, [get that] b---h or her sister number, and have

Jamaika Ru call and disguise her voice, and let them know if she show up

in court again, that it’s over for them and everybody them love. . . . If

Jamaika won’t do it, then get some female that we trust to do it. . . . Get on

it ASAP. . . . But they read all mail so be careful what you write. Y.G. D-

Ru Tree.

Investigator Loeffler said that “Heights” referred to “Western Heights” “a project in

Knoxville,” that “air it out” meant to “basically shoot somebody up, put holes in them,”

and that “ru talk” meant “real talk” or the “truth.”

The third letter addressed to “J-Spruce” was entered as an exhibit but was not read

to the jury. In that letter, “Y.G. D-Ru TREE” stated, among other things, that he knew he

was facing life imprisonment.

The anonymous letter sent with the envelope and three letters was also entered as

an exhibit but was not read to the jury. The anonymous author expressed concern over

the contents of the “Weezy” letter:

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This letter was dropped by my back door by my neighbor and the

contents of one page caught my eye. It is addressed to a person called

Weezy and it talks about a plan to have someone murdered. It concerns me

because the neighbor harbors gang members with powerful guns. My

family feels very threatened by the neighbor especially with all the

shootings going on right outside our back door. The person in this letter

needs protection and this matter taken seriously.

On cross-examination, Investigator Loeffler confirmed that he received a call from

Angela Branch during the early morning hours of April 2, 2012. She wanted to speak

with him, so she came to the station to give a statement. She relayed to Investigator

Loeffler that she “had seen something on the news that [she] didn’t think was quite what

[she] saw.” In this statement, Ms. Branch told Investigator Loeffler that she saw the

driver of the Buick exit the vehicle before the men came through Raider’s Field. Ms.

Branch placed one individual on the driver’s side of the Buick in front of the Corvette

and three others on the passenger’s side of the Buick. Ms. Branch said that two people

shot into the Corvette—the driver of the Buick and another individual on the passenger’s

side of the Buick. According to Ms. Branch, it was the driver of the Buick who was in

front of the Corvette and shot through the windshield.

Investigator Loeffler confirmed that he had not “reviewed any other writing

samples from [the Defendant]” and that he had not “received any other copies of letters

from Knox County Detention Facility from [the Defendant].” According to Investigator

Loeffler, he received the packet of letters “within a week or two of the postmark.”

Moreover, Investigator Loeffler testified that he was unable to identify any other person

who went by the name “D-Ru.”

On redirect, Investigator Loeffler agreed that Ms. Branch also made additional

statements during her April 2, 2012 interview. After Ms. Branch said, “The one I seen

with the gun shot first,” Investigator Loeffler asked her, “Okay. And that’s the guy on

the opposite side of the blue car the Corvette?” Ms. Branch responded, “Yeah. . . . The

one that came running from the fence.” Investigator Loeffler agreed that Ms. Branch was

telling him that “the person that she saw first shoot was the person that she also saw

coming through Raider[’s] Field[.]” In Investigator Loeffler’s experience, eyewitness

accounts often varied.

Finally, Investigator Loeffler said that law enforcement also acquired the

Defendant’s phone.5 He confirmed that “the phone calls made at the time of [the]

shooting indicated that [the Defendant’s] phone and Mr. May’s phone were in contact

with each other[.]”

5

This appears to be the 7379 number.

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D. Forensics. KPD Officer Rebecca Byers testified that she worked for the

forensics unit as a crime scene technician. She was assigned to this case and responsible

for photographing and collecting evidence. She described the scene: the victim’s driver-

side door was open; the driver-side window was shattered on the ground; there were

several bullet defects to the passenger-side of the victim’s windshield, at least two but

possibly three; tire marks; two bullet defects to the driver-side door, one at the top of the

door that shattered the window and the other on the inside of the door; blood centered

around the driver’s seat; and damage to the front bumper, including an indentation and

paint scratches. There were no bullet defects observed to the rear of the victim’s vehicle.

Moreover, Officer Byers stated that she was unaware of any contraband found inside the

victim’s vehicle.

After the car was towed to the impound lot, Officer Byers was able to recover two

bullet fragments from the driver-side door. In addition, Officer Byers opined that the two

bullets hit the door travelling “from the inside out.”

KPD Officer Beth Goodman was assigned to photograph and collect evidence

from Ms. Blair’s silver Buick. Scuff marks with green paint flecks were noted on the

driver-side of the vehicle. Once the car was at the impound lot, Officer Goodman was

able to retrieve paint scrape samples.

KPD Officer Patricia Resig was qualified as an expert in the area of firearms

identification. She testified that she examined the two bullet fragments taken from the

victim’s vehicle and the three bullet fragments recovered from the victim’s body.

Because no weapon was ever identified in this case, Officer Resig could only look at the

bullet fragments. Officer Resig was able to conclude that two of the bullets removed

from the victim’s body “were fired through the same unknown barrel.” However, while

the remaining three bullets displayed similar class and individual characteristics with the

other two, she could not determine if they were fired from the same gun. She opined that

it was possible that all five bullets were fired through the same barrel but that it was also

possible more than one gun was used.

Dr. Darinka Mileusnic-Polchan, the Chief Medical Examiner for Knox County,

performed the victim’s autopsy and concluded that the manner of death was homicide.

According to Dr. Mileusnic-Polchan, the victim was shot four times, once in the head,

shoulder, chest, and abdomen. Regarding the victim’s head wound, Dr. Mileusnic-

Polchan explained that it was a “through and through” wound, meaning that it went

through the victim’s brain and exited the other side. The head wound would have been

ultimately fatal. In addition, Dr. Mileusnic-Polchan stated that the “main direction” of all

four bullets was from right to left, “back to front,” and “slightly downward.” Dr.

Mileusnic-Polchan also said that all four of the wounds were “atypical,” explaining that

the bullets likely went through an intermediate target before striking the victim.

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Dr. Mileusnic-Polchan was unable to determine the order in which the wounds

were inflicted. As for the bullets, she noted that they were “unjacketed” and were “in the

category of medium caliber.” Moreover, Dr. Mileusnic-Polchan found “no evidence of

close range firing.” She opined that the shooter was on the victim’s right side and

“slightly to the back of the victim.” If the victim was seated when he was shot, then, in

Dr. Mileusnic-Polchan’s opinion, “the person that fired the shot could have been

potentially standing from a higher position.”

E. Defense Proof. Michael Cohan was an investigator for the defense. He

testified that he interviewed Angela Branch on February 2, 2014. Mr. Cohan asked her

who was the individual who was shooting, and Ms. Branch replied that it was the driver

of the Buick. According to Mr. Cohan, “[s]he went on to say that the driver of the Buick

and the two guys that came through fence were shooting.”

Myshauna Blair was recalled. She identified a picture from her Facebook account

in September 2012 showing her holding two pistols. She claimed that neither of these

weapons was used in these events and that neither of them belonged to her.

On cross-examination, Ms. Blair said that the victim’s murder had “affected [her]

tremendously.” In addition to moving away from Knoxville, Ms. Blair also had to leave

Georgia because she was still being threatened. According to Ms. Blair, no one knew

where she was living presently. She noted that, prior to the shooting, she engaged in

deviant behavior but now she had a job and had gotten her GED. She maintained that she

was “in a better place now than [she was] then.” Ms. Blair affirmed that she did not

shoot the victim and that she did not know that Mr. May and the Defendant were going to

shoot the victim.

The Defendant also called Kasandra Flood, Ms. Blair’s ex-girlfriend. Ms. Flood

said that she dated Ms. Blair for approximately five or six years and confirmed that they

were dating in 2012. Ms. Flood denied that Ms. Blair came to visit her while she was

working at the nursing home on the evening of April 1, 2012. She also denied ever

talking with Ms. Blair about these events, stating that she only learned of the shooting

after going home from work and seeing it on the news.

On cross-examination, Ms. Flood confirmed that she had spoken with Mr. Cohan,

the defense investigator. According to Ms. Flood, this was the first time anyone had

talked with her about this case. Ms. Flood acknowledged that she said to Mr. Cohan,

“Did they put me in this? ‘Cause I don’t have nothing to do with this? I don’t talk to her

no more. I had nothing to do with that. I don’t have nothing to do with her.” She also

agreed that she got “really upset” while speaking with him and that he had to ask her “to

calm down.” In addition, Ms. Flood averred that she was “not afraid of any retaliation

that might happen to [her] for getting involved in this case[.]”

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F. Verdict, Sentence, and Appeal. Following the conclusion of the proof, the jury

found the Defendant guilty of first degree premeditated murder in Count 1 and acquitted

him of the especially aggravated kidnapping charges in Counts 2 and 3. Thereafter, the

Defendant was sentenced to life imprisonment.

The Defendant’s timely motion for new trial was filed on July 23, 2014.

However, that motion languished in the trial court until the Defendant filed several pro se

motions in January 2017 concerning the unreasonable delay in the proceedings, including

a motion for leave to amend the motion for new trial, an amended motion for new trial,

and a motion for findings of facts and conclusions of law. In response, defense counsel

filed an amended motion for new trial on February 17, 2017. On February 23, 2017, the

Defendant’s motion for new trial was heard and denied, and a timely notice of appeal was

forthcoming. It is unclear from the record why two and half years elapsed between the

filing of the original motion for new trial and a hearing on the motion. Generally, such a

lengthy delay is inexcusable because the timely resolution of criminal cases is essential to

the pursuit of justice. See State v. Davis, 466 S.W.3d 49, 78-80 (Tenn. 2015) (Lee, J.

concurring).

ANALYSIS

On appeal, the Defendant argues (1) that the evidence was insufficient to support

his first degree murder conviction; (2) that admission of the packet of letters was

improper because the letters were not properly authenticated, contained inadmissible

hearsay, violated his confrontation rights, and were more prejudicial than probative; (3)

that the recorded jail calls contained inadmissible hearsay and were, therefore,

erroneously admitted in violation of his confrontation rights; (4) that testimony regarding

his “street name” was irrelevant and more prejudicial than probative; (5) that the trial

court acted in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), when it failed to

compel the State to disclose the name of the jailhouse informant who claimed to have

information related to the victim’s murder; and (6) that the State committed prosecutorial

misconduct during its closing argument requiring plain error relief. We will address each

in turn.

I. Sufficiency of the Evidence

The Defendant challenges the sufficiency of the convicting evidence supporting

his first degree murder conviction. Specifically, the Defendant argues that the State

failed to demonstrate premeditation, failed to prove the elements of criminal

responsibility, and failed to corroborate the accomplice testimony of Ms. Blair. The State

counters that the evidence was sufficient.

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An appellate court’s standard of review when a defendant questions the

sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). This court does not reweigh the evidence; rather, it presumes that the jury

has resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness

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

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

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Id.; see State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence

is direct or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

Likewise, appellate review of the convicting evidence “is the same whether the

conviction is based upon direct or circumstantial evidence.” Id. (quoting State v. Hanson,

279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is

not to contemplate all plausible inferences in the [d]efendant’s favor, but to draw all

reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d

60, 67 (Tenn. 2011).

First degree murder, in this instance, is defined as “[a] premeditated and

intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts

intentionally “when it is the person’s conscious objective or desire to engage in the

conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a).

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

judgment. “Premeditation” means that the intent to kill must have been

formed prior to the act itself. It is not necessary that the purpose to kill pre-

exist in the mind of the accused for any definite period of time.

Tenn. Code Ann. § 39-13-202(d).

A. Premeditation and Criminal Responsibility

The State explicitly argued at trial that it was proceeding under the theory that co-

defendant May fired the shot that killed the victim and that the Defendant was criminally

responsible for co-defendant May’s actions. On appeal, the Defendant contends that

there was insufficient evidence to establish premeditation because co-defendant May

“made a split-second decision to start shooting into [the victim’s] vehicle mere seconds

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after arriving.” The Defendant further submits that the State failed to establish that he

was criminally responsible for co-defendant May’s actions because “[t]here was no proof

of . . . planning this act beforehand or discussing the relations of their goal after the fact.”

The State responds that the evidence was sufficient for the jury to conclude that Mr. May

and the Defendant planned to shoot the victim and that the Defendant was criminally

responsible for Mr. May’s actions.

The element of premeditation is a factual question to be decided by a jury from all

the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614

(Tenn. 2003). Although a jury may not engage in speculation, it may infer premeditation

from the manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our

supreme court has held that factors demonstrating the existence of premeditation include,

but are not limited to, the following: the declaration of the intent to kill, the procurement

of a weapon, the use of a deadly weapon upon an unarmed victim, the fact that the killing

was particularly cruel, the infliction of multiple wounds, the making of preparations

before the killing for the purpose of concealing the crime, the destruction or secretion of

evidence, and calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401,

409 (Tenn. 2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additional factors

cited by this court from which a jury may infer premeditation include lack of provocation

by the victim and the defendant’s failure to render aid to the victim. See State v. Lewis,

36 S.W.3d 88, 96 (Tenn. Crim. App. 2000). Further, “[e]stablishment of a motive for the

killing is a factor from which the jury may infer premeditation.” State v. Leach, 148

S.W.3d 42, 54 (Tenn. 2004).

Additionally, the Defendant’s guilt in this case was predicated on his criminal

responsibility for the conduct of co-defendant May. “A person is criminally responsible

as a party to an offense if the offense is committed by the person’s own conduct, by the

conduct of another for which the person is criminally responsible, or by both.” Tenn.

Code Ann. § 39-11-401(a). A person is criminally responsible for an offense committed

by the conduct of another, if “[a]cting with intent to promote or assist the commission of

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

directs, aids, or attempts to aid another person to commit the offense[.]” Tenn. Code

Ann. § 39-11-402(2). Although not a separate crime, criminal responsibility is a theory

by which the State may alternatively establish guilt based on the conduct of another.

Dorantes, 331 S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166, 170 (Tenn.

1999)). No specific act or deed needs to be demonstrated by the State, and the presence

and companionship of an accused with the offender before and after the offense are

circumstances from which participation in the crime may be inferred. State v. Ball, 973

S.W.2d 288, 293 (Tenn. Crim. App. 1998). To be convicted, however, “the evidence

must establish that the defendant in some way knowingly and voluntarily shared in the

criminal intent of the crime and promoted its commission.” Dorantes, 331 S.W.3d at 386

-18-

(citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994)); see State v.

Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)).

According to the evidence presented at trial, Ms. Blair and the victim had been

arguing about the damage done to the victim’s Corvette when they collided. Ms. Blair

was setting up a payment plan to pay for the damage when the Defendant and Mr. May

came through the football field towards their location. According to Ms. Blair, both men

had their “guns out” as they approached. Ms. Blair testified that, when Mr. May arrived

on the scene, he went to the front of the Buick and that the Defendant went to the back of

the victim’s car. Mr. May asked the victim “what was going on,” and the victim repeated

the events of the accident and said “y’all” are going to pay for the damage. Ms. Blair

said that Mr. May shot first, firing three times without provocation through victim’s front

window, and that the Defendant shot at the back of the victim’s vehicle. The unarmed

victim suffered gunshot wounds to the head, shoulder, chest, and abdomen. After the

shooting, the Defendant and Mr. May got inside the Buick, and Ms. Blair said that Mr.

May “put the gun to” her and ordered her to drive away from the scene. They did not

render aid to the victim and fled the scene. Ms. Blair described that, once the men were

inside her car, it seemed like they did not care about what they done, “like it was a joke,”

or they were doing “it for fun.” Moreover, Ms. Blair said that the Defendant threatened

to kill her if she told anyone what had happened. Mr. Borden, who was approximately

thirty or forty feet away from where the shooting occurred, confirmed that “two guys in a

hoodie” were shooting into the Corvette, one shooter on the side of the Corvette and the

other in the front. Ms. Branch also provided a similar version of events at trial. We

conclude that this evidence, when viewed in a light most favorable to the State, is

sufficient to establish premeditation and that the Defendant knowingly and voluntarily

shared in the criminal intent of the crime and promoted its commission.

B. Accomplice Corroboration

The Defendant contends that Ms. Blair was an accomplice and that her testimony

was not sufficiently corroborated. The State responds that, even if the jury found Ms.

Blair to be an accomplice, her testimony was sufficiently corroborated.

It is well-established in Tennessee that “a conviction may not be based solely upon

the uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903

(Tenn. 2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State,

379 S.W.2d 34,43 (Tenn. 1964)). To qualify as an accomplice, it is not enough that the

witness possess guilty knowledge, be morally delinquent, or even have participated in a

separate but related offense. See State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim.

App. 1990). The test is whether the alleged accomplice could be indicted for the same

offense with which the defendant is charged. State v. Green, 915 S.W.2d 827, 831 (Tenn.

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Crim. App. 1995); Pennington v. State, 478 S.W.2d 892, 897-98 (Tenn. Crim. App.

1971) (citations omitted).

Our supreme court has described what is required to establish sufficient

corroboration as follows:

[T]here 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.

Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). The corroborating

evidence need only be “slight.” State v. Griffs, 964 S.W.2d 577, 589 (Tenn. Crim. App.

1997). While “[e]vidence which merely casts a suspicion on the accused . . . is

inadequate to corroborate an accomplice’s testimony,” the “evidence is sufficient if it

connects the accused with the crime in question.” Id. Whether there is sufficient

corroborating evidence is a question for the jury. Shaw, 37 S.W.3d at 903.

Here, Ms. Blair was listed as the victim in the two counts charging the Defendant

with especially aggravated kidnapping. The Defendant argued that Ms. Blair was an

accomplice who portrayed herself as a victim in order to cover up her involvement in the

shooting. In addition, the trial court instructed the jury that they had to determine

whether Ms. Blair was an accomplice and, if they determined that she was, whether her

testimony was sufficiently corroborated. See Lawson, 794 S.W.2d at 369 (quoting

Bethany v. State, 565 S.W.2d 900, 903 (Tenn. Crim. App. 1978)) (concluding that, when

the facts are in dispute or susceptible to different inferences that a witness may or may

not be an accomplice, then whether said witness is an accomplice becomes a question of

fact for the jury to decide).

First, we note that the Defendant goes through great pains to discredit Ms. Blair.

However, the jury chose to accredit her version of events regarding the victim’s murder.

As we have stated time and time again, the determination of issues of witness credibility

and the resolution of conflicts in testimony rest squarely within the province of the jury.

Bland, 958 S.W.2d at 659.

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Moreover, Ms. Branch testified that she saw two African-American males run

through the football field and ultimately shoot into the victim’s vehicle. Mr. Borden also

saw two men shoot into the Corvette. Both placed the men at similar locations as Ms.

Blair. After the shooting, law enforcement acquired the Defendant’s cell phone and

confirmed that “the phone calls made at the time of [the] shooting indicated that [the

Defendant’s] phone and Mr. May’s phone were in contact with each other[.]”

Furthermore, the Defendant’s recorded jail calls and the three letters purported to be

written by the Defendant indicate a consciousness of guilt. If the jury determined that

Ms. Blair was an accomplice, we conclude that the evidence of corroboration, when

viewed in a light most favorable to the State, is sufficient to sustain the Defendant’s

conviction.

II. Evidentiary Objections

The Defendant raises several evidentiary objections on appeal. First, the

Defendant argues that the packet of letters was not properly authenticated and contained

inadmissible hearsay and that the danger of unfair prejudice outweighed the probative

value of the letters. Second, the Defendant submits that the trial court erred in admitting

the recordings of the jail telephone calls because they contained inadmissible hearsay and

their admission violated his confrontation rights. Finally, the Defendant maintains that

the trial court erred by allowing Ms. Blair to refer to the Defendant by his street name

“D-Ru” because the probative value of this testimony was low in relation to its

prejudicial effect. The State responds that the trial court properly admitted the evidence.

Tennessee Rule of Evidence 401 provides that “‘[r]elevant evidence’ means

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

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

the evidence.” Generally, relevant evidence is admissible, while irrelevant evidence is

inadmissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its

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

of the issues, or misleading the jury.” Tenn. R. Evid. 403. The term “unfair prejudice”

has been defined as “[a]n undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.” State v. Banks, 564 S.W.2d 947,

951 (Tenn. 1978). “The admissibility of evidence under Rule 403 of the Tennessee Rules

of Evidence is a matter within the trial court’s discretion and will not be reversed on

appeal absent an abuse of that discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn.

Crim. App. 2006) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)).

Tennessee Rule of Evidence 404(b) generally prohibits “[e]vidence of other

crimes, wrongs, or acts . . . to prove the character of a person in order to show action in

conformity with the character trait.” State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014).

Rule 404(b) allows such evidence in limited circumstances for purposes other than

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proving action in conformity with a character trait. Id. The rule sets out certain

procedural requirements the trial court must follow:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting 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 its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). The comments to Rule 404(b) provide that evidence of other

crimes, wrongs, or acts should be excluded unless relevant to an issue other than the

character of the defendant, such as identity, motive, intent, or absence of mistake. Tenn.

R. Evid. 404, Advisory Comm’n cmt; see also Jones, 450 S.W.3d at 891. A trial court’s

decision regarding the admission of Rule 404(b) evidence will be reviewed under an

abuse of discretion standard; however, “the decision of the trial court should be afforded

no deference unless there has been substantial compliance with the procedural

requirements of the Rule.” DuBose, 953 S.W.2d at 652.

In addition, “hearsay” is defined as “a statement other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” Tenn. R. Evid. 801(c). A “statement” is “(1) an oral or written

assertion or (2) nonverbal conduct of a person if it is intended by the person as an

assertion.” Tenn. R. Evid. 801(a). Hearsay is not admissible except as allowed by the

rules of evidence or other applicable law. Tenn. R. Evid. 802. The questions of whether

a statement is hearsay or fits under one of the exceptions to the hearsay rule are questions

of law and subject to de novo review by this court. Kendrick v. State, 454 S.W.3d 450,

479 (Tenn. 2015), cert. denied, 136 S. Ct. 335 (2015).

In Crawford v. Washington, the United States Supreme Court held that testimonial

hearsay statements violate a defendant’s rights under the federal constitution’s

Confrontation Clause and are only admissible when (1) the declarant is unavailable and

(2) the defendant has had a prior opportunity to cross-examine the declarant. 541 U.S.

36, 68-69 (2004); see also State v. Maclin, 183 S.W.3d 335, 345 (Tenn. 2006), abrogated

on other grounds by State v. Cannon, 254 S.W.3d 287, 301-02 (Tenn. 2008). When

hearsay is non-testimonial, the Tennessee Rules of Evidence govern its admissibility.

State v. Franklin, 308 S.W.3d 799, 810 (Tenn. 2010). Non-hearsay statements—i.e.,

statements not admitted for the truth of the matter asserted—do not violate the

Confrontation Clause, whether or not the statements are testimonial. Id.

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A. Packet of Letters

1. Authentication. The Defendant argues that the trial court erred in admitting the

packet of letters, which contained one anonymous note, an envelope addressed to Trinity

Peoples, and three letters purported to have been written by the Defendant, without a

proper showing of chain of custody and without proper authentication of the letters. The

State counters, arguing that the letters were properly authenticated.

Rule 901(a) of the Tennessee Rules of Evidence states as follows: “The

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to the court to support a finding by the trier of fact that

the matter in question is what its proponent claims.” Evidence may be authenticated

through testimony from a witness with knowledge that a matter is what it is claimed to be

or by “[a]ppearance, contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances.” Tenn. R. Evid. 901(b)(1), (4).

In addition, “[w]ithout drawing the boundaries of practical possibilities, the rule allows

proof to the court of a myriad of distinctive characteristics that may convince the judge

that a questioned document is authentic enough to let the jury consider it.” Tenn. R.

Evid. 901, Advisory Comm’n cmt.

Proof of chain of custody is further evidence of identification or authentication.

See State v. Leon Flannel, No. W2007-00678-CCA-R3-CD, 2008 WL 4613829, at *15

(Tenn. Crim. App. Oct. 13, 2008) (citing State v. Ferguson, 741 S.W.2d 125, 127 (Tenn.

Crim. App. 1987) (stating that tangible evidence may be properly introduced either when

identified by a witness or the chain of custody is established)). “The concept of a ‘chain’

of custody recognizes that real evidence may be handled by more than one person

between the time it is obtained and the time it is either introduced into evidence or

subjected to scientific analysis.” Cannon, 254 S.W.3d at 296 (citing Neil P. Cohen et al.,

Tennessee Law of Evidence § 9.01[13][c] (5th ed. 2005)). “The purpose of the chain of

custody is to ‘demonstrate that there has been no tampering, loss, substitution, or mistake

with respect to the evidence.’” State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000) (quoting

State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993)). However, the State is

not required to prove the identity of tangible evidence beyond all possibility of doubt,

neither is the State required to exclude every possibility of tampering. Id. Rather, if the

facts and circumstances regarding the evidence “reasonably establish the identity and

integrity of the evidence,” it should be admitted. Cannon, 254 S.W.3d at 296.

Authentication issues, including those determining whether the chain of custody

has been established, are left to the discretion of the trial court. Cannon, 254 S.W.3d at

295 (citing Scott, 33 S.W.3d at 752; State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim.

App. 1987)). The Defendant argues that the letters were not properly authenticated

because the police could not establish a “chain of custody” for the period of time between

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when the letters were written and when the police received them. He submits that “the

integrity of the letters is highly questionable given that they were provided from an

anonymous source[.]” Although the Defendant uses the phrase “chain of custody,” this is

not a chain of custody issue in the classic sense, i.e., the Defendant does not challenge the

letters based upon how they were handled once they came into the possession of the

police but is instead arguing that the State failed to properly authenticate the letters as

being written by the Defendant given the facts and circumstances surrounding how the

police came into possession of them. See Flannel, 2008 WL 4613829, at *16 (addressing

the defendant’s assertion that the State failed to establish the chain of custody by

clarifying that “proof of chain of custody is required only when the evidence offered is

not readily identifiable or is susceptible to alteration and there is reason to believe that it

may have been tampered with, substituted, or altered” and by noting that “there are many

methods for authenticating a document” pursuant to Rule 901).

We now address the crux of the issue, that is, whether the letter was properly

authenticated. In the June 6, 2012 letter to “Trinity,” the individual said that “Shayra”

had recently come to visit him, and Desharya Taylor visited the Defendant on June 1,

2012. The envelope inside the packet was addressed to Trinity Peoples at 322

McConnell Avenue, and the mail logs showed that the Defendant sent a letter to Ms.

Peoples at this address on June 7, 2012. The Defendant wrote multiple letters to both

Desharya Taylor and Trinity Peoples while incaracerated. Ms. Blair testified that she

knew the Defendant by his nickname or street name of “D-Ru,” and she said that the

caller ID on Mr. May’s phone showed “D-Ru” was calling when Mr. May called for a

ride to pick them up. The Defendant identified himself and responded to “D-Ru” on the

jail phone call recordings. All three of the letters were signed by “D-Ru” or “D-Ru

TREE.” Thus, the contents of the letters provided support for the conclusion that they

were written by the Defendant as the State claimed. See Tenn. R. Evid. 901; see, e.g.,

State v. Bobby Jackson, No. W2009-02232-CCA-R3-CD, 2011 WL 1849096, (Tenn.

Crim. App. May 11, 2011) (holding that the trial court did not abuse its discretion by

admitting a letter purportedly written by the defendant because the officers’ testimonies

sufficiently established the identity and integrity of the evidence); Flannel, 2008 WL

4613829, at *16 (concluding same when the letter contained specific and distinctive

information about the crime as well as personal matters which only the defendant would

know)

In addition, the evidence at trial showed that the KPD received the packet on July

15, 2012, and that the packet was opened by the “Teleserve unit” and forwarded to

Investigator Loeffler. According to Investigator Loeffler, he received the packet of

letters “within a week or two of the postmark.” Moreover, Investigator Loeffler testified

that he was unable to identify any other person who went by the name “D-Ru.” While a

handwriting expert would have been helpful, such was not required of the State to

-24-

authenticate the letters. See Tenn. R. Evid. 901. Accordingly, the trial court did not

abuse its discretion in admitting the letters because there was sufficient evidence to

support the finding that the Defendant authored the letters in question.

2. Hearsay. The Defendant also argues that the letters were inadmissible hearsay

and that their admission violated his confrontation rights. According to the Defendant,

“the entire packet of letters should be reviewed collectively; that is, both the anonymous

note and the three letters purportedly sent from the detention facility.” The Defendant

contends that the letters were inadmissible because the declarant’s identity was unknown.

He further maintains that “the introduction of these documents, whose existence was

primarily developed by an anonymous source, deprived him of his right to confrontation

because he was unable to cross-examine this source.”

As noted above, the three letters signed by “D-Ru” were properly authenticated

because there was sufficient evidence to support a finding that the letters were written by

the Defendant. Because those letters contained the Defendant’s own statements, they

were admissible as an exception to the hearsay rule. See Tenn. R. Evid. 803(1.2)(A)

(providing that “[a] statement offered against a party that is . . . the party’s own statement

in either an individual or representative capacity” is “not excluded by the hearsay rule”).

Additionally, admission of the Defendant’s own statements does not implicate the

Confrontation Clause. See Canady v. State, 461 S.W.2d 53, 60 (Tenn. Crim. App. 1970)

(holding that the defendant could not claim that his own statement violated his right to

confrontation); see also United States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir.

2006).

To the extent that the Defendant argues that the anonymous note was improperly

admitted into evidence, we note that the trial court initially determined that the

anonymous note was not admissible. However, once the trial court found that the three

letters purportedly written by the Defendant were properly authenticated, the Defendant

did not object to admission of the anonymous note. Accordingly, any issue with the

anonymous note was waived. Moreover, the note was not offered for the truth of the

matter asserted but to show how the police came into possession of the letters.

3. Relevance. Finally, the Defendant argues that the probative value of the letters

was outweighed by the danger of unfair prejudice because “[t]he letters . . . contain a

great deal of inflammatory language, curse words, jargon, and ‘other crimes, wrongs, or

acts’ pursuant to” Tennessee Rule of Evidence 404(b). According to the Defendant,

“[b]ecause the State already had other independent means of establishing [the

Defendant’s] nickname as ‘D-Ru’ ([the Defendant’s] jail calls, Ms. Blair’s testimony),

identity was not a material issue.” The Defendant submits that the letters had the

“devastating effect” of portraying Ms. Blair as a victim, thus making her “a more

sympathetic witness.”

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We agree with the State that “[t]he letters were highly probative of the

[D]efendant’s guilty knowledge and identity as one of the shooters.” Again, the letters

evidence the Defendant’s consciousness of guilt. The letter to “Weezy,” which called for

someone to shoot at and burn down Ms. Blair’s home, corroborated Ms. Blair’s testimony

that she and her mother were targeted and threatened. The Defendant acknowledged in

the “Weezy” letter that he was facing life in prison. The fact that the letters were signed

by “D-Ru” or “D-Ru TREE” validated Ms. Blair’s identification of the Defendant as one

of the shooters.

Moreover, after Investigator Loeffler read the letter to “Weezy” into evidence, the

trial court instructed the jury how it was to consider evidence of another crime:

If, from the proof, you find that the [D]efendant has committed a

crime other than that for which he is on trial, you may not consider such

evidence to prove his disposition to commit such a crime as that on trial.

This evidence may only be considered by you for the limited purpose of

determining whether it provides either the complete story of the crime; that

is, such evidence may be considered by you where the prior or the other

crime and the present alleged crime are logically related or connected or a

part of the same transaction, so that proof of the other tends or is necessary

to prove the one charge or is necessary for a complete account thereof, or

you may consider it . . . as to establishing the [D]efendant’s identity; that is,

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

[D]efendant’s identity in the case on trial.

The jury is presumed to follow the trial court’s instructions. State v. Walker, 910 S.W.2d

381, 397 (Tenn. 1995). Accordingly, we cannot say that the trial court abused its

discretion in admitting the evidence.

B. Recorded Jail Calls

Next, the Defendant claims that the trial court erred by admitting into evidence his

recorded telephone calls from jail. According to the Defendant, the statements of the

other persons who were speaking during the calls were inadmissible hearsay, and in

addition, admission of the recordings deprived him of his right to confront the other

persons involved in those conversations. The State argues that statements of the other

persons on the recordings were not hearsay because they were introduced to put the

Defendant’s statements into context, not for the truth of the matter asserted. The State

surmises that, because the statements were not hearsay, the Defendant’s confrontation

rights were not violated. The Defendant complains that “the State’s utilization of these

statements strengthened its closing argument far beyond mere context, to paint a picture

of [the Defendant’s] mental state and his family’s concerns about his criminal liability.”

-26-

Upon review, we discern no error in the trial court’s admission of the evidence.

Again, the Defendant’s own statements on the recordings qualify as an admission by a

party opponent, which are not excluded by the hearsay rule. See Tenn. R. Evid. 803(1.2).

The other individuals speaking on the various phone calls provided context for the

Defendant’s admissible statements and were not offered for their truth. See, e.g., State v.

Kendell Edward Johnson, No. M2011-00792-CCA-R3-CD, 2012 WL 3731699, at *18-19

(Tenn. Crim. App. Aug. 29, 2012) (determining that a witness’s statements on a tape

recording were not offered for the truth of the matter asserted but solely for the purpose

of providing the context for the defendant’s statements); State v. George Anthony Bell,

No. M2008-01187-CCA-R3-CD, 2009 WL 3925370, at *6 (Tenn. Crim. App. Nov. 19,

2009) (concluding that “statements made during recorded conversations between an

informant and a non-law enforcement party generally are admissible because they are not

offered for the truth of the matter they assert”); see also Neil P. Cohen et al., Tennessee

Law of Evidence, § 8.01 [10], 8-27 (6th ed. 2011) (“Statements designed to (1) provide a

context for, or (2) permit an understanding of, another statement may not be hearsay.”).

Regarding the Defendant’s confrontation issue, the statements of the other

individuals speaking during the recorded phone calls were not hearsay because those

statements were not offered for the truth of the matter asserted. Tenn. R. Evid. 801(c);

see State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980). As the trial court instructed, those

statements were not offered or intended to be substantive evidence. Rather, they were

offered solely for the purpose of providing the context of the Defendant’s statements. If

the other individuals’ comments had been completely redacted from the tapes, the

Defendant’s statements would have made little sense. See State v. Price, 46 S.W.3d 785,

804 (Tenn. Crim. App. 2000) (citing State v. Gibson, 973 S.W.2d 231, 243 (Tenn. Crim.

App. 1997)) (additional citation omitted). The State did not ask the jury to believe what

those individuals said on the recording, instead the primary objective was to bring before

the jury the statements made by the Defendant. See Gibson, 973 S.W.2d at 243 (citing

Jones, 598 S.W.2d at 223). Because the statements of the other individuals speaking on

the recording are non-hearsay, the issue of confrontation does not apply. See Franklin,

308 S.W.3d at 810; see also State v. Edward Joseph Benesch II, No. M2015-02124-CCA-

R3-CD, 2017 WL 3670196, at *34 (Tenn. Crim. App. Aug. 25, 2017) (holding that

admission of the interview as redacted did not violate the Confrontation Clause because

the officers’ statements were not introduced for their truth but rather to provide context

for the witness’s responses); State v. Derrick Sorrell, No. W2006-02766-CCA-R3-CD,

2009 WL 1025873, at *5 (Tenn. Crim. App. Apr. 8, 2009) (“The audiotape contained a

conversation between the defendant and a second person and cannot be barred by the

Confrontation Clause because the conversation was not offered for truth, but instead for

context and evidence of knowledge.”).

-27-

In addition, the Jones court held that tape recordings may be presented by any

witness who was present during the recording or any witness who monitored the

recording as long as he can identify the declarant with certainty and his testimony

comports with the other rules of evidence. 598 S.W.2d at 223. The court continued,

In all such cases the jury should be instructed that only the statements,

admissions and declarations of the declarant may be considered in the

question of guilt or innocence. Further any statement made by a non-

testifying party to the conversation which tends to be prejudicial to the

defendant must be redacted, unless admissible under some other rule of

law.

Id. In Jones, the court found that full opportunity was given to cross-examine the agent

who presented the transcripts to the jury. Id. at 224.

The same can be said in the case at hand, the Defendant was given and used his

full opportunity to cross-examine Lieutenant Patrick, the officer who presented the

recordings to the jury. Moreover, before playing the recordings of the telephone calls,

the trial court instructed the jury that the Defendant’s statements on the recordings were

admissible as substantive evidence. Regarding the statements made by the other parties

to the calls, the trial court instructed as follows:

Now, in a call like this where you’re hearing two people, you can

only understand . . . the meaning of the [D]efendant’s statement by hearing

the context of the other side of the call. So we’re going to play both sides

to this, but in thinking about . . . these calls, when you deliberate, you can

only consider the statement made by the [D]efendant as substantive

evidence. The statements made by the other person on the other end of the

call is merely played for you for you to understand the context of the

[D]efendant’s statement. They aren’t offered to prove the truth of the

matter, whatever the person was saying. Okay?

Because the State did not offer the statements by the other individuals to the phone

conversations as substantive evidence, those statements were not hearsay, and they did

not violate the Defendant’s right to confrontation. Moreover, the instruction referenced

in Jones was given. Accordingly, the Defendant is not entitled to relief.

C. Street Name

The Defendant contends that the trial court erred by allowing Ms. Blair to testify

regarding the Defendant’s nickname or “street name” of “D-Ru.” He argues that Ms.

Blair’s knowledge of the Defendant’s nickname was irrelevant because she “affirmatively

-28-

stated that she knew [the Defendant] by name.” Alternatively, the Defendant submits

that the probative value of Ms. Blair’s identifying the Defendant as “D-Ru” was low

“when measured against the danger for unfair prejudice.” The State argues that the trial

court correctly ruled that the nickname was relevant to identify the Defendant and that

there was nothing “tremendously prejudicial” about the moniker “D-Ru.”

According to Investigator Loeffler, Ms. Blair was only able to identify the

Defendant by his street name “D-Ru.” Moreover, when Ms. Blair was asked at trial if

she knew the Defendant “by any other name other than Damarkus,” she replied, “D-Ru.”

While this statement of Ms. Blair was somewhat ambiguous, we disagree with the

Defendant that Ms. Blair “affirmatively stated that she knew [the Defendant] by name.”

The Defendant identified himself as “D-Ru” on the telephone calls and responded to that

nickname when used by others. The three letters were signed by “D-Ru” or “D-Ru

TREE.” We conclude that the testimony regarding the Defendant’s nickname was

relevant to Ms. Blair’s identification of him as the shooter, and it placed the Defendant

with Mr. May just before the shooting took place. See, e.g., State v. Kenneth James

Watkins, No. M2010-00886-CCA-R3-CD; 2011 WL 3557096, at *24 (Tenn. Crim. App.

Aug. 11, 2011) (concluding that the testimony regarding the defendant’s nickname was

relevant to eyewitness’s identification of him as the shooter) (citing State v. Aubrey

Tremaine Eisom and Cedric Moses, No. W2009-02098-CCA-R3-CD, 2010 WL

4540069, at *17 (Tenn. Crim. App. Nov. 5, 2010) (considering witnesses’ testimony

regarding the defendant’s nickname to be corroborative of an eyewitness’s identification

of the defendant by his nickname)). Moreover, the Defendant’s nickname was relevant to

establish his identity as the author of the letters.

The Defendant argues that, if the testimony regarding his nickname was relevant,

the trial court still erred by allowing it because the testimony was unfairly prejudicial.

We do not agree. Whether the Defendant was in fact “D-Ru” was a contested issue at

trial, and his identity as “D-Ru” offered significant corroborative evidence of Ms. Blair’s

testimony. There was nothing overly prejudicial about the moniker “D-Ru” in itself. We

conclude that the trial court did not abuse its discretion by allowing Ms. Blair to testify

about the Defendant’s nickname because the probative value of the testimony

substantially outweighed any danger of unfair prejudice.

III. Brady Violation

The Defendant claims that the prosecution violated his constitutional right to due

process, and in particular the principles announced in Brady v. Maryland, 373 U.S. 83

(1963), by waiting until the day of trial to alert the defense that an inmate had provided

information related to Ms. Blair’s involvement in the victim’s murder. According to the

Defendant, the trial court erred when it refused to compel the State to provide the name

of this confidential informant who had “material” information about whether Ms. Blair

-29-

possessed a firearm during the episode. The State responds that its “failure to turn over

this information prior to the day of trial was not a Brady violation because the

information was not favorable to the [D]efendant and it was not material.”

On the first day of trial, the prosecutor stated that, while “pulling everything

together” for trial, she discovered a note “from a conversation that [she] had with an

inmate in the jail[.]” She alleged that the confidential informant told her the following:

“[T]he information was that [the victim] was a Gangster Disciple, and that . . . he heard

talk in the jail, not specific, didn’t know who he talked to, that this . . . was a setup, that

[the victim] had been targeted, that it was gang related[.]” The confidential informant

also said that “the girl got the gun and sold the gun or tried to sell the gun.” According to

the prosecutor, when the confidential informant volunteered this information, she was

speaking with him about an unrelated case and “he was in trouble” after absconding and

“was trying to help himself[.]” The prosecutor also averred that she “didn’t pay any

attention to” the confidential informant’s statements because it conflicted with the

evidence and the statements from the other witnesses. Defense counsel then argued that,

under Brady, the State should be required to disclose the name of the confidential

informant because the information he could provide was clearly “exculpatory” and

indicated that Ms. Blair was an accomplice. The trial court denied defense counsel’s

request.

On the second day of trial, following Ms. Blair’s testimony, defense counsel

renewed his request for the name of the confidential informant, noting that Ms. Blair

“denied knowledge of possessing a gun in the course of this incident or following this

incident or getting rid of a gun or anything to do with it.” Defense counsel expressed his

desire to “investigate some pretty interesting allegations in the . . . middle of trial.” Upon

questioning by the trial court, the prosecutor confirmed that “the person that this

information came through didn’t . . . have personal knowledge that Ms. Blair had had a

weapon or got rid of a weapon[.]” She continued, “What [the confidential informant]

told me was that he heard jail talk. . . . It wasn’t like he was saying he was talking to [the

Defendant] or Mr. May. Just jail talk.” She opined that the information “just wasn’t

competent.” The trial court concluded that any jail talk would be inadmissible and that

the information provided by the informant “was a little too questionable” to lead

anywhere. Accordingly, the State was not required to disclose the confidential

informant’s name to the defense.

In Brady, the United States Supreme Court held that “suppression by the

prosecution of evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” 373 U.S. at 87. In order to establish a Brady claim, a

defendant must establish the following:

-30-

1. The defendant must have requested the information (unless the evidence

is obviously exculpatory, in which case the State is bound to release the

information, whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant must prove these due

process violation prerequisites by a preponderance of the evidence. Id. (citing State v.

Spurlock, 874 S.W.2d 602, 610 (Tenn. Crim. App. 1993)).

Evidence is “favorable” if it is deemed to be exculpatory in nature or could be

used to impeach the State’s witnesses. Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn.

2001). “[E]vidence which provides some significant aid to the defendant’s case, whether

it furnishes corroboration of the defendant’s story, calls into question a material, although

not indispensable, element of the prosecution’s version of the events, or challenges the

credibility of a key prosecution witness” falls within the Brady disclosure requirement.

State v. Jackson, 444 S.W.3d 554, 593 (Tenn. 2014) (quoting Johnson, 38 S.W.3d at 56-

57).

Here, the State disclosed the substance of its conversation with this confidential

informant on the first day of trial. Accordingly, the issue before this court concerns a

delayed disclosure of evidence, not a complete nondisclosure. Tennessee courts analyze

delayed disclosure differently from outright suppression, focusing on the prejudice of the

delay. See State v. Twain Demario Vaughn, No. M2006-01659-CCA-R3-CD, 2008 WL

110094, at *6 (Tenn. Crim. App. Jan. 9, 2008). In United States v. Blood, the Sixth

Circuit stated, “Brady generally does not apply to delayed disclosure of exculpatory

information, but only to a complete failure to disclose and that a [d]elay only violates

Brady when the delay itself causes prejudice.” 435 F.3d 612, 627 (6th Cir. 2006) (citing

United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir. 1994)) (quotations omitted); see

also State v. Caughron, 855 S.W.2d 526, 548 (Tenn. 1993) (Daughtrey, J., dissenting)

(“no violation occurs as long as Brady material is disclosed to a defendant in time for its

effective use at trial.” (quotation omitted)). In addressing the difference between delayed

disclosure and nondisclosure of evidence, this court has held as follows:

Indeed, when there has been a delayed disclosure of evidence, as opposed

to a complete non-disclosure, Brady is normally inapplicable unless the

delay itself causes prejudice. When there has been a delayed disclosure, as

opposed to a non-disclosure, the appellant must establish that the delayed

disclosure prevented him from using the disclosed material effectively in

preparing and presenting his case.

-31-

State v. Larry Boykin, No. E2005-01582-CCA-R3-CD, 2007 WL 836807, at *13 (Tenn.

Crim. App. Mar. 20, 2007) (citations omitted).

Although the State did not out-and-out suppress the evidence, we cannot say with

any certainty whether the delayed disclosure of this information “itself caused prejudice.”

The trial court ruled that the State was not required to divulge the name of the

confidential informant, and we, therefore, have no guidepost as to what evidence further

questioning of this informant would have revealed. Thus, our determination of whether

the information provided by the confidential informant was either material or favorable to

the Defendant is more germane to our analysis.

The State is generally not required to disclose the identity of a confidential

informant except when the informant (1) participated in the crime, (2) witnessed the

crime, or (3) “has knowledge which is favorable to the defendant.” State v. Ostein, 293

S.W.3d 519, 526 (Tenn. 2009) (citing State v. Vanderford, 980 S.W.2d 390, 397 (Tenn.

Crim. App. 1997)). The defendant must show by a preponderance of the evidence the

circumstances that entitle him to the confidential informant’s identity. Ostein, 293

S.W.3d at 528; Vanderford, 980 S.W.2d at 397. The State is not required to divulge the

identity of the informant if the defendant fails to establish the materiality of the

confidential informant to his defense. Vanderford, 980 S.W.2d at 397. A trial court’s

decision about whether to order the disclosure of a confidential informant’s identity is

reviewed by this court for an abuse of discretion. Ostein, 293 S.W.3d at 526 (citing

House v. State, 44 S.W.3d 508, 512 (Tenn. 2001); United States v. Sharp, 778 F.2d 1182,

1187 (6th Cir. 1985); Vanderford, 980 S.W.2d at 396-97).

It is evident that the confidential informant was neither a witness to the crime nor

a participant in the crime; accordingly, the issue is whether the confidential informant had

knowledge that would have been favorable to the Defendant or if the confidential

informant’s identity would have been helpful to the defense or essential to a fair trial.

The Defendant asserts that the trial court erred by refusing to compel the State to divulge

the name of a confidential informant. Thus, he claims that he was deprived of

discovering potentially relevant information. The defense points out that “the

information was favorable to [the Defendant], in that it highlighted that Ms. Blair’s role

in this event was contrary to her previous police statement and trial testimony[,]” and that

“Ms. Blair’s testimony constituted the bulk of the State’s case.”

The confidential informant’s knowledge was gathered through “jail talk,” and

according to the prosecutor, the informant could not remember who provided him with

this information. The informant had no direct knowledge from anyone involved in the

case. In addition, the inmate only volunteered this information upon his apprehension

after absconding, and there was no evidence to corroborate his claim. The trial court

determined that any testimony by the confidential informant about jail talk would be

-32-

inadmissible and that the information was “a little too questionable” to lead to any

admissible evidence. We agree. The Defendant has not shown that disclosing the name

of the confidential informant would have been helpful to his defense or was essential to a

fair determination of the trial. See State v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim.

App. 1997) (citing State v. Taylor, 763 S.W.2d 756, 760 (Tenn. Crim. App. 1988))

(holding that the trial court did not err by refusing to compel the State to divulge the

name of an inmate who claimed that the defendant’s girlfriend had information pertaining

to the robbery); West v. State, 466 S.W.2d 524, 526 (Tenn. Crim. App. 1971) (affirming

trial court’s refusal to compel the State to reveal the names and whereabouts of two

anonymous inmates who shared in the reward money for information leading to the arrest

and conviction of those responsible for the murder).

IV. Prosecutorial Misconduct

The Defendant contends that the State committed prosecutorial misconduct during

its closing argument and asks this court to review the closing argument for plain error.

The State contends that the Defendant has not shown his entitlement to plain error relief.

The Defendant concedes, and we agree, that his failure to raise a contemporaneous

objection during closing argument waives plenary review of his claim on appeal. See

Tenn. R. App. P. 36(a) (providing that appellate relief is not available for a party who

“failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of any error.”); State v. Robinson, 146 S.W.3d 469, 518 (Tenn. 2004) (holding that

the issue of prosecutorial misconduct during closing argument is waived if the defendant

does not make a contemporaneous objection). In addition, the Defendant failed to

challenge the prosecutor’s closing argument in his motion for new trial or amended

motion for new trial, again failing to properly preserve these claims. See Tenn. R. App.

P. Rule 3(e) (stating that “no issue presented for review shall be predicated upon . . .

action committed or occurring during the trial of the case, or other ground upon which a

new trial is sought, unless the same was specifically stated in a motion for a new trial”).

Accordingly, the Defendant is not entitled to relief on appeal unless the prosecutor’s

remarks constitute plain error. See Tenn. R. App. P. 36(b) (“When necessary to do

substantial justice, an appellate court may consider an error that has affected the

substantial rights of an accused at any time, even though the error was not raised in the

motion for a new trial or assigned as error on appeal.”).

There are five factors that must be established before an error may be recognized

as plain:

(a) the record clearly establishes what occurred in the trial court; (b) a clear

and unequivocal rule of law was breached; (c) a substantial right of the

accused was adversely affected; (d) the accused did not waive the right for

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tactical reasons; and (e) consideration of the error is “necessary to do

substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). The burden is on the defendant to establish all

five factors, and “complete consideration of all the factors is not necessary when it is

clear from the record that at least one of the factors cannot be established.” Id.

Furthermore, the error must be “clear” or “obvious,” State v. Bledsoe, 226 S.W.3d 349,

354 (Tenn. 2007), and must be of “such a great magnitude that it probably changed the

outcome of the trial.” Smith, 24 S.W.3d at 283.

While the scope and depth of closing argument is generally a matter within the

trial court’s discretion, State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994), the State is

not free to do what it wishes. Arguments are required to be “temperate, based upon the

evidence at trial, relevant to the issues being tried, and not otherwise improper under the

facts of the law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker

v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995)). Although not exhaustive, this

court has recognized five general areas of potential prosecutorial misconduct during

closing arguments: (1) intentionally misstating the evidence or misleading the jury as to

the inferences it may draw; (2) expressing personal beliefs or opinions as to the truth or

falsity of any testimony or the guilt of the defendant; (3) inflaming or attempting to

inflame the passions or prejudices of the jury; (4) injecting issues broader than the guilt

or innocence of the accused; and (5) arguing or referring to facts outside the record unless

the facts are matters of common knowledge. Id. at 6.

First, we must comment on the Defendant’s appellate brief. On appeal, the

Defendant alleges that the State committed prosecutorial misconduct during closing

argument relying on “a distillation of improper comments made by the State.” The initial

closing statement by the State is approximately twenty-one pages long, and the

Defendant cites to no less that fifteen pages as containing objectionable material, often

including multiple lines from each page. He also quotes from three of the five pages of

the State’s rebuttal closing argument. The Defendant frequently does not identify which

of these comments he views as objectionable and which are merely provided for context.

After the overabundance of quotations, the Defendant surmises that “[t]he cumulative

effect of these statements . . . went beyond the bounds of what is permissible during

closing arguments.” He then maintains that “the State breached its duty to refrain from

expressing a personal belief or opinion as to the truth or falsity of the evidence of the

[D]efendant’s guilt, and made statements calculated to inflame the passions or prejudices

of the jury.” Specifically, he submits, “This case hinged on the credibility of Ms. Blair,

and time and again, the State personally vouched for her was well as Ms. Branch, while

personally discrediting the defense witness, Ms. Flood.” Furthermore, according to the

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Defendant, the issue was not waived for tactical reasons because allowing these remarks

“did not benefit [him] in any way.”

We decline to parse the State’s entire closing argument for instances of

misconduct. In light of the Defendant’s summation of his argument on this issue, we will

focus on the prosecutor’s remarks that, according to the Defendant, allegedly vouch for

Ms. Blair’s, Ms. Branch’s, or Ms. Flood’s credibility.6

The closing argument remarks cited by the defense regarding Ms. Blair:

1. “So we don’t know where that bullet was. It wasn’t found at the

scene, just as cartridges were not found at the scene, and that’s because

Myshauna Blair is telling the truth when she said that both of these men had

revolvers, and if any of you know about guns—and I forgot to voir dire you

on that issue. . . . Hopefully, some of the people on the jury understands

what that means. When a weapon is fired and it’s a revolver, the cartridge

remains in the gun. So the only evidence that we would have, of course,

would be bullets.”

2. “Now, how else do we know that Myshauna was being honest

with Investigator Loeffler when . . . she talked to him? Well, you know, the

fact that she was willing to talk to him under these circumstances. Now,

think about it. . . . It took a lot of guts for her to come forward and to

identify these two people as the people who were involved. Okay?

. . . Nobody had identified her. She didn’t have to tell the police

what happened. . . . Could always say, somebody else took my car. I

wasn’t there. I loaned my car to these guys. She didn’t do that. . . . And

she did that, ladies and gentlemen knowing what these men were like, and I

got to tell you, you know, that takes guts because on the streets people have

a reason to fear.

There is retaliation on the streets. There is a reason for people to not

want to come forward. Nobody in this case wanted to come forward.

Nobody wanted to get involved. All of these people, except Myshauna, still

live here. They have every reason to be afraid, because as I said, we’re

dealing with two men who have no regard for human life. None. . . . ”

3. “And Michael May was definitely involved, and we’ve proven

that too. So when Myshauna Blair said that Michael May was a part of it,

6

We have edited and added to these remarks for clarity and to place them in their proper context.

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when she says that he stood there and shot at [the victim], she was telling

the truth . . . .”

4. “The other reason that we know Myshauna is telling the truth is

that she told the truth about how the accident happened, and that’s borne

out by the physical evidence.”

5. “You know, she wasn’t lying to you, ladies and gentlemen. It

happened the way that she said that it happened . . . . ”

(Emphases added). The closing argument remarks cited by the defense regarding Ms.

Branch:

1. Now, if Myshauna Blair was in front of the windshield of [the

victim’s car] next to Michael May, [Mr. Borden] would have seen that. He

didn’t see that because she wasn’t there. Why would Angela say to

Investigator Loeffler and to the defense investigator, why would she say

that she saw that? Well, I don’t think she’s lying. Okay? I think that she’s

just a young woman who witnessed a very traumatic, dynamic incident . . . .

2. You know, it would be really unusual for every person who was

out there to agree—you know, to agree about every detail that happened.

It’s very easy for somebody who’s experiencing a traumatic event,

especially, when they’re crouching down and they’re hiding, you know, out

of fear to . . . get things jumbled up, to make mistakes. That doesn’t mean

that they’re telling lies. It just means that they’re mistaken.

And Angela, I think when she realized that she was going to have to

come to trial, she was going to have to testify under oath and swear that this

was her recollection, she began to realize, hey you know, . . . maybe I was

wrong about that. Maybe that didn’t happen exactly that way, and so this is

not to say that she’s a liar. It’s just somebody who was wrong and was

willing to admit that they were before she took that oath. Okay?

(Emphases added). Finally, the closing argument remarks cited by the defense regarding

Ms. Flood:

1. [After reading a portion of the letter allegedly authored by the

Defendant:] That would scare me. That would scare me. If I was

Myshauna’s sister and I knew about that, I would be scared to go home. If

I was Myshauna’s mother, I would be scared. If I was Myshauna’s

girlfriend or ex-girlfriend, I would be terrified to get involved. . . . I might

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be willing to lie to save my hide. Think about it. Think about—think about

the prospect.

2. I don’t care what her girlfriend says. Her girlfriend lied, because

her girlfriend still lives here, and, you know, and it probably hurt

Myshauna’s feeling[s] that her girlfriend lied, and it probably made her

mad, but, you know, Myshauna doesn’t live here anymore, and Kasandra

Flood does, and she knows these people. She may not want to admit it to

you, but she knows who they are, and they know her. They know her.

(Emphases added).

First, we note that the record reflects that defense counsel made similar comments

during closing argument regarding Ms. Blair’s credibility: “Are there shades of truth to

what she say? Yes, of course, because sure as many of you have experienced in life,

that’s the best lies, half truths, part truths, but she holds back the important stuff. She has

to, and it ends up working out pretty darn good for her.” (Emphases added); “She had

every motivation and she had the opportunity to lie in this case, and that’s what she’s

done. And if you believe her story, then you believe the [S]tate’s case, but we would

submit to you that she had everything to lose, that she had to tell this tale.”; “So we

would submit to you again this corroborates that Myshauna Blair has been less than

forthcoming with her remembrance of the events that day . . . .” (Emphases added).

Commenting on Ms. Branch’s credibility, defense counsel said, “[O]ne of the really

interesting things in this case is Angel[a] Branch, and, you know, the [S]tate’s position is

that she made a mistake, and, you know, to tell you the truth, I think that’s . . . a fair

reflection. Okay? But we need to look at why she would not remember things exactly

the same way.” (Emphasis added). Defense counsel then insinuated that Ms. Branch was

likely afraid of Ms. Blair. Thus, it is possible that the failure to object was not an

inadvertent or negligent oversight by defense counsel but rather a strategic decision to

rebut the prosecutor’s comments with defense counsel’s own argument. “[I]t has long

been recognized that ‘[t]he question of whether to object to improper argument is a

tactical decision for counsel.’” State v. Charles Owens, No. M2005-02571-CCA-R3-CD,

2007 WL 1094136, at *6 (Tenn. Crim. App. Apr. 12, 2007) (quoting State v. Compton,

642 S.W.2d 745, 747 (Tenn. Crim. App. 1982)).

Certainly, a lawyer should not assert his or her personal opinion as to the

credibility of a witness or as to the accused’s guilt or innocence. State v. Thornton, 10

S.W.3d 229, 235 (Tenn. Cirm. App. 1999) (citing State v. Henley, 774 S.W.2d 908, 911

(Tenn. 1989)). Although a prosecutor is prohibited from expressing a personal opinion

on a witness’s credibility, he or she may argue based upon an analysis of the evidence

and the conclusion supported by the evidence. See Tenn. S. Ct. R. 8, RPC 3.4(e)(3); see

also 75A Am. Jur. 2d Trial § 692 (1991) (“The credibility of a witness is a proper subject

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for closing argument, but as a matter of professional ethics a lawyer may not state a

personal opinion as to the credibility of a witness.”) & § 699 (“The general rule . . . is that

it is improper for an attorney to vouch for or assert his personal opinion as to the

credibility of a witness since it is not proper for counsel to take the position of an

unsworn witness as to credibility.”). This issue of “[w]hether a statement qualifies as

misconduct often depends upon the specific terminology used.” Thornton, 10 S.W.3d at

235 (citing United States v. Stulga, 584 F.2d 142, 147 (6th Cir. 1978) (stating that “[t]he

use of the words ‘submit’ are not the equivalent of expressing an opinion.”)).

Moreover, for a defendant to be entitled to a new trial on the basis of allegedly

improper remarks during the closing argument, the comments must be shown to have

prejudiced the case by affecting the jury’s verdict. State v. Middlebrooks, 995 S.W.2d

550, 559 (Tenn. 1999). In determining whether this occurred, we consider the following

factors: (1) the conduct viewed in light of the circumstances and facts in the case; (2) any

curative measures taken by the trial court and the prosecution; (3) the prosecutor’s intent

in making the improper statements; (4) the cumulative effect of the prosecutor’s

statements and other errors in the record; and (5) the relative strength and weakness of

the case. Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

In spite of the fact that the prosecutor at times vouched for the credibility of

witnesses during closing argument, we conclude that none of the statements adversely

affected a substantial right of the Defendant by having any effect on the jury’s verdict.

Ms. Blair’s credibility was bolstered by the Defendant’s own statements in the letters he

wrote from jail wherein he sought retribution and by his comments in the recorded jail

telephone calls. Her testimony was also corroborated by Mr. May’s cellular telephone

records. The prosecutor’s statements were commentary on the evidence relevant to Ms.

Blair’s credibility.

In addition, Ms. Branch provided favorable testimony to the State at trial, and it

was the defense who sought to discredit her with her prior inconsistent statements, which

were not admissible as substantive evidence. Ms. Branch averred that she was “trying to

do [her] best to remember.” The prosecutor’s comments were an attempt to address these

discrepancies in Ms. Branch’s testimony that were pointed out by the defense. In

Investigator Loeffler’s experience, eyewitness accounts often varied.

Regarding Ms. Flood, the prosecutor was insinuating that she had incentive to lie

because she still lived in the area and feared retribution. Moreover, the trial court

provided the jury with the general instructions that arguments of counsel were not

evidence. See State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008); State v. Framer, 927

S.W.2d 582, 591 (Tenn. Crim. App. 1996). Accordingly, plain error relief is

unwarranted.

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CONCLUSION

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

_________________________________

D. KELLY THOMAS, JR., JUDGE

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