State of Tennessee v. Santory Alexander Johnson

07/27/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 23, 2018 Session

STATE OF TENNESSEE v. SANTORY ALEXANDER JOHNSON

Appeal from the Criminal Court for Hamilton County

No. 290718 Thomas Greenholtz, Judge

No. E2017-00361-CCA-R3-CD

The Defendant, Santory Alexander Johnson, was convicted by a jury of one count of

second degree murder. On appeal, the Defendant contends that (1) the trial court erred in

failing to declare a mistrial or issue an adequate curative instruction following

prosecutorial misconduct during closing arguments; (2) the trial court erred in allowing a

witness to testify about statements made by the victim; (3) the trial court erred in

allowing a redacted convenience store video to be entered into evidence; (4) the trial

court erred in re-playing a 9-1-1 recording already admitted into evidence; (5) the trial

court erred in allowing inflammatory autopsy photographs to be entered as evidence; (6)

the cumulative effect of these evidentiary errors was not harmless; and (7) the trial court

erred in failing to properly consider mitigating factors at the Defendant’s sentencing

hearing.1 Following our review, the judgments of the trial court are affirmed.

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.

Christina Renee Mincy (on appeal) Chattanooga, Tennessee; and Amanda B. Dunn and

Elizabeth Lee Epps (at trial), Chattanooga, Tennessee, for the appellant, Santory

Alexander Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;

M. Neal Pinkston, District Attorney General; and Cameron B. Williams, Assistant

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

OPINION

1

For clarity and ease of discussion, we have reordered the issues as they are set forth in the Defendant’s

brief.

FACTUAL BACKGROUND

This case arose after the shooting death of the victim, Christopher Jones, on

October 4, 2013. On February 19, 2014, the Hamilton County grand jury charged the

Defendant with one count of first degree murder and one count of possession of a firearm

with a violent felony conviction. See Tenn. Code Ann. §§ 39-13-202; -17-1307. The

firearm charge was later dismissed, and the Defendant proceeded to a trial on the first

degree murder charge on October 27, 2015.

I. Trial

At trial, Chris Gainer testified that he was employed with the Hamilton County 9-

1-1 Center as a custodian of records for 9-1-1 call recordings. Mr. Gainer said that there

were multiple calls to the 9-1-1 center regarding an incident on October 4, 2013.

Mr. Gainer explained that the first call came in at 11:24:17 p.m. from telephone

number 1157.2 The prosecutor played this first call for the jury:

Operator: 9-1-1, what’s the location of your emergency?

....

Caller: On Chandler Avenue, a dude just got killed.

Operator: Where on Chandler?

....

Operator: Okay, you just said a man got killed. Got killed where?

Caller: 4012 on Chandler.

Operator: 4012. Was he shot?

Mr. Gainer testified that the second call regarding the October 4 incident was received at

11:24:29 p.m. from telephone number 0496. The prosecutor played this call for the jury:

Operator: 9-1-1, location of your emergency?

Caller: We’re on Chandler Road . . . . 40th and Chandler. Ma’am, please

[send] an ambulance, please, please.

Operator: Okay. What happened? What happened?

Caller: He’s been shot. Somebody’s been shot.

Operator: Okay, you said 40th and Chandler?

Caller: Please, please ma’am.

2

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

-2-

Operator: Okay, I’ve got them coming. They’re coming. Okay I need you

to take a deep breath. Are they breathing? Hello?

....

Operator: Okay, the person who was shot, where are they at? Where’s the

victim at?

Caller: He’s there in the street . . . . Oh, please, please.

Operator: Okay, are they breathing?

....

Caller: He’s not breathing.

Mr. Gainer explained that the next call to the 9-1-1 center was received at

11:25:34 p.m. from telephone number 0496. The prosecutor played this call for the jury:

Operator: 9-1-1, location of your emergency?

Caller: 4012 Chandler Avenue.

....

Operator: Okay, what’s going on there?

Caller: Somebody just got killed.

Operator: Okay, is the suspect still on the scene?

Caller: Nope. You all going to send the police or what?

Operator: I’m going to send somebody. I need you to tell me what’s going

on. Is there somebody still there?

Caller: Yeah, the man on the street!

Operator: Okay, is the person who shot him still there?

Caller: No.

Operator: Which way did he go?

A record of all three calls was marked as an exhibit and entered into evidence.

Amber Rushing testified that in October 2013 she lived with the victim and their

two sons on Chandler Avenue. Ms. Rushing explained that the Defendant and the victim

had been friends for years and that the Defendant lived “four houses down” on Chandler

Avenue. Ms. Rushing said that on October 4, 2013, the victim was at the Defendant’s

house gambling and that she was at a friend’s house located approximately one block

away from the Defendant’s house. She explained that she knew the victim was at the

Defendant’s home because she had spoken with him on the telephone several times that

day. Ms. Rushing testified that at approximately 10:00 p.m., the victim texted her using

his cell phone and asked her for a ride home. Ms. Rushing said that when she received

the victim’s text, she was already in a vehicle with the victim’s cousin, Deontra Balding,

who was the driver, the victim’s grandmother, Deborah Williams, and another one of the

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victim’s cousins, Shrondrika Jones. When asked what happened when they arrived at the

Defendant’s home, Ms. Rushing explained,

When we pulled up, [Mr. Balding] was like in the – he pulled up in

the middle of the road because there were several cars parked along both

sides of the street. And when we pulled up [the Defendant] was standing

by the fence and he told [Mr. Balding] he needed to move his car out of the

middle of the street. But he said it like in a joking way. And we all kind of

just laughed it off. [Mr. Balding] laughed it off. And he was like, well, I

got something that can make you move this car out [of] the middle of the

street. And he pulled out a gun and shot it in the air. So we all kind of

w[ere] just like, you know, what was that for, just looking like we really

didn’t know what that was for.

Ms. Rushing testified that there were about thirty people at the Defendant’s house

that evening and that his house was known to be a “gambling house” with “a lot of

people hanging out down there[.]” Ms. Rushing explained that she was sitting in the

back seat of the vehicle when the Defendant fired the shot “in the air.” She said that she

did not see the gun that the Defendant used and that the Defendant only fired one shot.

When asked what happened after the Defendant fired the shot, Ms. Rushing said, “[The

victim] told [the Defendant] he was tripping. That his family and his granny w[ere] in

the car. And [the Defendant] said, my bad, hey, Granny. Like spoke to his granny. And

that was really it.” Ms. Rushing testified that the victim appeared to be angry as he got in

the back seat of the vehicle and that they then drove to another house approximately two

minutes away. She explained that once the vehicle stopped at the second residence, all of

the occupants got out of the car. The victim asked Ms. Rushing for the keys to her car, a

white Ford Taurus. The victim then drove Ms. Rushing’s car back to the Defendant’s

house.

Ms. Rushing explained that she was afraid there was “going to be an

altercation[,]” so she began walking back to the Defendant’s house. She explained,

I started walking on the railroad tracks . . . along the side of

Chandler Avenue. While I was walking I could hear yelling. I couldn’t

hear actually what was being said, but I could hear people yelling. And I

heard a gunshot. And then like a long pause in between. And I kind of like

just stopped in my tracks when I heard the first one. And then I hear

several more like a few seconds later. And I took off my shoes and started

running.

Ms. Rushing said that she heard “[m]aybe ten” gunshots total.

-4-

Ms. Rushing explained she began running to Chandler Avenue and that she

noticed that as she approached, “cars were leaving like frantically” and people were “in a

rush to get away from the scene.” When she arrived at the scene, Ms. Rushing saw the

victim lying in the middle of the street. She said that she also saw her car parked in the

middle of the road with the headlights on and the driver’s side door open. Ms. Rushing

approached the victim, who did not appear to be breathing and had blood on his t-shirt.

When asked if she saw injuries on the victim, she replied, “I couldn’t really tell. I just

s[aw] the blood everywhere.” Ms. Rushing stated that she began screaming for help and

that the paramedics arrived about ten minutes after she found the victim. Ms. Rushing

remained with the victim until he was placed in an ambulance. Ms. Rushing explained

that she did not speak to police at the scene because her “main concern was” making sure

the victim “was okay.” Ms. Rushing said that she never spoke to the police about what

occurred, but she did eventually speak to the district attorney’s office in 2013 near the

time of the preliminary hearing for this case.

Ms. Jones testified that the victim was her cousin and that on October 4, 2013, she

was living in Hamilton County. Ms. Jones identified the Defendant and stated that she

knew him as well. She testified that on October 4, 2013, she was in the car when they

picked up the victim at the Defendant’s house at approximately 10:00 p.m. She

confirmed that Ms. Rushing, Mr. Balding, and Ms. Williams were in the car with her.

Ms. Jones explained that the following occurred when they arrived at the Defendant’s

house:

When we pulled up [the Defendant] came to the sidewalk and told

[Mr. Balding to] pull over the car. . . . [W]e looked at each other because

we didn’t understand why he was telling him to pull over the car because

[the victim] was walking right out into the street to get in the car, and we

w[eren’t] blocking traffic or anything. So once [the Defendant] told him to

pull over the car, he you know he looked at him – [Mr. Balding] looked at

him and was asking him to pull over the car for what. And [the Defendant]

turned around and told [the victim] to tell[ Mr. Balding] to pull over the car.

And [Mr. Balding] was like he can’t make me pull over the car and [the

Defendant] was like, well, I got something that will make you pull over this

car. And that’s when he pulled out the gun and fired into the air.

Ms. Jones stated that after the Defendant fired a shot into the air, the victim said to the

Defendant, “You tripping, my grandmother’s in the car.” The Defendant objected to this

testimony on the basis of hearsay, but the trial court overruled the objection.

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Ms. Jones continued her testimony and explained that the Defendant apologized to

the victim’s grandmother, the victim got in the car, and they drove away from the

Defendant’s house. Ms. Jones said that once they all got out of the car, the victim said

that he was going to go back to the Defendant’s house and “see what all that was for

because they w[ere] friends and [the victim] didn’t understand . . . the point of [the

Defendant’s] shooting a gun in the air.”

Ms. Jones testified that the victim got in a white car, which belonged to Ms.

Rushing, and that he drove away. Ms. Jones and Ms. Rushing started walking down the

railroad tracks toward the Defendant’s home. As they were walking, they heard

gunshots. Ms. Jones initially began running back toward her own home when she heard

the gunshots, but she turned around and went back toward the Defendant’s house after

she realized that Ms. Rushing had gone toward the Defendant’s home. When she arrived

at the scene, Ms. Jones observed Ms. Rushing standing near the victim, who was lying in

the street. Ms. Jones gave a statement to police officers who had arrived at the scene, but

she was not one of the 9-1-1 callers.

Rodney Southers testified that he witnessed the victim’s murder. Mr. Southers

identified the Defendant and explained that he had known the Defendant for “twenty

something years” and that they lived on the same street. Mr. Southers also testified that

he knew the victim and that they had known each other for approximately fifteen years.

Mr. Southers explained that on October 4, 2013, he was at the Defendant’s residence on

Chandler Avenue drinking and “playing cards and domino[es].” He said that both the

Defendant and the victim were at the home that evening. When asked if an incident

occurred between the Defendant and the victim, Mr. Southers stated,

Somebody came . . . to pick up [the victim,] and [the Defendant] . . .

shot in the air. And when he shot in the air, [the victim] told him that his

grandmomma was in the car and [the victim] got in that car and left. When

[the victim] left, [the victim] came back. When he came back, he walked

up [on the Defendant] asked him why was he shooting that gun, his

grandmother was in the car. They got into a little argument[,] but it wasn’t

nothing like that. [The Defendant] told him please leave his yard. [The

victim] said I’ll leave your yard, just don’t put your hands on me, you know

what I’m saying. He [was] like, man, that’s my family, you ain’t got no

business doing that s - - t . . . I’ll die for my family.

[The victim] started going to go get in the car. When he . . . start[ed]

get[ting] in the car, they still had a little back and forth little argument

about it, but nothing . . . too heated. . . . [The victim] was fixing to get

ready to leave and [the Defendant] started shooting.

-6-

Mr. Southers further explained that when the victim returned to the Defendant’s

house, he was alone in “a little white car.” Mr. Southers reiterated that the last thing he

heard the victim say was, “I’ll die for my family[,]” to which the Defendant replied,

“[O]h, you’ll die for your family.” Mr. Southers stated that the victim was seated in the

driver’s seat when the Defendant began shooting at him. According to Mr. Southers, the

Defendant also walked around to the other side of the vehicle and shot at the victim

through the passenger window. Mr. Southers testified that he did not know what

happened to the Defendant after he shot the victim. He explained that the victim crawled

out of the vehicle and fell on the ground. Mr. Southers went over to the victim “to see if

he was alright” but left the scene before the police arrived.

Charlotte Pinkteron testified that she knew both the victim and the Defendant. She

explained that she was at the Defendant’s house on October 4, 2013, “gambling, playing

cards” and that both the victim and the Defendant were present. When asked if anything

strange happened that night, Ms. Pinkerton stated,

The first thing that happened, I came in and I started playing cards

and [the Defendant] was kidding me about something that had happened a

while back. We played cards and [the victim] got broke, he got up and left.

[The victim] started to leave, he went out to the car, someone was there to

pick him up. Someone got out of the car and started to get in the backseat

and he was getting in the car to drive away. [The Defendant], he asked

where you going fool and he shot toward the car.

Ms. Pinkerton explained that the victim got in the vehicle and left the scene but returned

a little while later in a white Ford Taurus. The victim walked up to the Defendant and

demanded to know why he “disrespect[ed] him like that with his family in the car” and

told the Defendant that he would “die for [his] family.” The Defendant asked the victim

to leave, and the victim got into his car. After the victim was seated in his car, the

Defendant began shooting at him through the driver’s side window. Then, the Defendant

walked around to the other side of the car and began shooting at the victim again. The

victim got out of the car and began running. He ran approximately twelve feet before

collapsing in the street, and the Defendant left the scene and ran “toward the fence line.”

Ms. Pinkerton said that she used her cell phone to call the police to report the

shooting. At this point, the prosecutor re-played the 9-1-1 call previously played and

entered into evidence. Ms. Pinkerton remained on the scene until the police and

paramedics arrived. Ms. Pinkerton was transported to the police station, where she gave

a statement to Detective Fuller. Ms. Pinkerton asserted that the victim never threatened

the Defendant nor did he appear to have a weapon.

-7-

Following Ms. Pinkerton’s testimony, her statement to Detective Fuller was

played for the jury. The content of the interview was similar to Ms. Pinkerton’s trial

testimony; however, she told Detective Fuller that she did not see what vehicle the victim

was driving when he returned to the Defendant’s house. She did tell Investigator Fuller

that when the victim attempted to leave the Defendant’s house, he got into the driver’s

seat of a white car.

Charles Fuller testified that he had known the Defendant for “over twenty years.”

Mr. Fuller explained that in October 2013, he was retired but “helped out” at a

convenience store located in close proximity to the Defendant’s home. When asked if he

saw the Defendant on the evening of October 4, 2013, he explained that the Defendant

came into the convenience store, appeared to be in a rush, took a pack of cigars from Mr.

Fuller, and quickly left. Mr. Fuller asserted that he had reviewed the store surveillance

video from that night and stated that it accurately depicted his interaction with the

Defendant. The prosecutor then played a redacted version of the video, which depicted

the Defendant’s walking up to the check-out counter inside the convenience store and the

clerk’s handing him an item.

Investigator Jerry McElroy testified that he was a crime scene investigator with the

Chattanooga Police Department (CPD). He explained that his primary duties were to

document crime scenes and collect and preserve evidence. The prosecutor showed

Investigator McElroy multiple photographs of the crime scene on Chandler Avenue,

which were identified and entered into evidence as Exhibit Numbers 2-24.

Kendall Stoner stated that she was employed with the Tennessee Bureau of

Investigation (TBI) as a “Special Agent Forensic Scientist in the Forensic Biology Unit,

the DNA unit[,]” and she offered testimony as an expert in DNA testing. Agent Stoner

testified that she determined that a swab of blood taken from Chandler Avenue matched

the DNA profile of the victim. Agent Stoner also conducted DNA analysis on a white t-

shirt with “some reddish-brown stains” found near the scene of the crime. Agent Stoner

determined that the white t-shirt contained blood from the victim. Agent Stoner was also

able to determine that a blood sample taken from the driver’s seat of the white Ford

Taurus matched the victim’s DNA profile.

Agent James Russell Davis II explained that he was a “Special Agent and Forensic

Scientist” for the TBI and testified as an expert in microanalysis. Agent Davis explained

that testing revealed the presence of “gunshot primer residue” on the exterior of the

driver’s side door of the Ford Taurus. The lab report containing these test results was

entered into evidence.

-8-

Kevin Warner, a Special Agent Forensic Scientist for the TBI, offered testimony

as an expert in firearms analysis. Regarding this case, Agent Warner received five bullets

and six cartridge cases to analyze. Two of the bullets were recovered from the Chandler

Avenue crime scene, two were recovered from the white Ford Taurus, and one was

removed from the victim. Agent Warner determined that all of the bullets were .45

calibers and that they were all fired from the same firearm. Although Agent Warner

never received a weapon to analyze in this case, he was able to determine that the firearm

was a semi-automatic weapon and could possibly have been “a Taurus, Eagle Arms[, or]

Wesco Ordnance.” Agent Warner then conducted a demonstration of the operation of a

Taurus handgun in the courtroom.

Investigator Lucas Fuller testified that he was employed as a CPD homicide

detective and that he was working on October 4, 2013. He responded to the shooting on

Chandler Avenue, searching the area near the crime scene for the shooter. Investigator

Fuller did not find a suspect and proceeded to 4000 Chandler Avenue. Upon arrival, he

spoke with Ms. Jones. Investigator Fuller also spoke with a police officer already on the

scene, who provided him with information regarding the victim. Investigator Fuller then

began to view the crime scene with the crime scene technicians. Investigator Fuller

noticed a white Ford Taurus with an open driver’s side door parked on the street at 4000

Chandler Avenue. He found multiple shell casings and projectiles around the car. He

located blood on the driver’s side of the car, inside the driver’s side door, and in the

street. Investigator Fuller returned to the police station where he interviewed five

individuals who had been present at the Defendant’s residence at the time of the shooting.

After personally interviewing each of these people, Investigator Fuller obtained an arrest

warrant for the Defendant.

Investigator Fuller was not able to locate the Defendant on that date. He sent a

wanted poster of the Defendant throughout the CPD and contacted the department’s

“fugitive division.” Ultimately, the Defendant was located on October 8, 2013, when

police officers responded to a telephone call in which the Defendant stated “that he

needed to turn himself in because he was wanted for murder” and that unnamed

individuals were shooting at him.

Police officers arrested the Defendant and took him to the police department. The

Defendant signed a waiver of rights form in which he agreed to speak to Detective Fuller

without an attorney present, and this document was entered as an exhibit. Detective

Fuller recorded his interview of the Defendant, and the recording was entered into

evidence. During the interview, the Defendant admitted that there was gambling at his

house on the night of the murder but denied shooting the victim. The Defendant

explained that the reason he called the police was that unidentified persons, who knew

that the Defendant was suspected of murdering the victim, were shooting at him.

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Dr. Steven Cogswell stated that he was employed at the Hamilton County Medical

Examiner’s Office and testified as an expert in forensic pathology. Dr. Cogswell

performed the autopsy on the victim and identified the relevant autopsy and toxicology

reports, which were entered into evidence. Dr. Cogswell concluded that the victim’s

manner of death was homicide and that the probable cause of death was multiple gunshot

wounds. He testified that he determined the victim received a total of four or five

gunshot wounds. These included gunshot wounds to the victim’s neck, right upper arm,

right forearm, leg, and a grazing gunshot wound to the torso. Dr. Cogswell explained

that the torso wound might have actually been a continuation of one of the arm wounds.

He also testified that the wounds were consistent with “someone . . . in a sitting position.”

Dr. Cogswell stepped down from the witness stand and demonstrated how the victim

might have been positioned when he was shot based on information gathered during the

autopsy. Dr. Cogswell also drew a “wound diagram” as part of the autopsy, which

included the entrance and exits of the gunshot wounds and dotted lines representing the

pathways of bullets. Dr. Cogswell identified photographs he took of the victim’s body

depicting the gunshot wounds, and these were entered into evidence.

At the conclusion of the trial, the jury found the Defendant guilty of one count of

the lesser-included offense of second degree murder.

II. Sentencing Hearing

A sentencing hearing was held on February 10, 2016. Sherita Burch, the victim’s

mother, testified in accordance with her victim impact statement, which was submitted

with the presentence report. The prosecutor and defense counsel each offered arguments

regarding enhancement and mitigating factors. After considering Ms. Burch’s testimony,

arguments from the parties, the presentence report, and the presence of any enhancement

and mitigating factors, the trial court sentenced the Defendant to forty years’

incarceration to be served in the Tennessee Department of Correction. The Defendant

filed a motion for new trial, which was denied, and followed by a timely notice of appeal.

ANALYSIS

I. Closing Argument

The Defendant contends that the prosecutor made improper comments regarding

the Defendant’s right not to testify during closing arguments. Specifically, the Defendant

argues that the prosecutor inappropriately addressed the Defendant during closing

arguments and that “the prosecutor’s statement and body language could only have been

understood as a declaration that the [Defendant] would not answer such questions in the

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presence of the jury because the [Defendant] purportedly knew he was guilty.” The

Defendant argues that the jury “would necessarily have taken it to be a comment on the

[Defendant’s] exercise of his right not to testify.” The State responds that the Defendant

has waived review of this issue by failing to raise a contemporaneous objection.

During his rebuttal closing argument, the prosecutor commented on the fact that

the Defendant left his home after the victim was murdered and never returned. The

prosecutor also argued that the Defendant disposed of incriminating evidence before

turning himself over to the police and made the following statements:

Why do you get rid of clothing? Why do you buy new clothes?3 It’s

because you know you’re guilty. It’s because you know there’s evidence

on there or there’s a possibility that evidence could be on there. Why

didn’t you just let him go, just let him leave? We wouldn’t be here.

First, we conclude that the Defendant waived review of the issues regarding the

prosecutor’s comments and the trial court’s failure to take action by denying a mistrial or

issue a curative instruction. Here, the Defendant failed to raise a contemporaneous

objection during closing argument, thus waiving 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). 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.”). The

State contends that the Defendant has not shown his entitlement to plain error relief.

There are five factors that must be established before an error may be recognized

as plain:

(1) the record clearly establishes what occurred in the trial court, (2) a clear

and unequivocal rule of law was breached, (3) a substantial right of the

accused was adversely affected, (4) the issue was not waived for tactical

reasons, and (5) consideration of the error is necessary to do substantial

3

We note that there was no explicit testimony that the Defendant disposed of his clothing from the night

of the shooting. A t-shirt with the victim’s blood was found near the crime scene, and the Defendant is

wearing what could possibly be a different shirt in the surveillance video from the convenience store.

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justice.

State v. Minor, 546 S.W.3d 59, 70 (Tenn. 2018) (citing State v. Martin, 505 S.W.3d 492,

504 (Tenn. 2016); State v. Hester, 324 S.W.3d 1, 56 (Tenn. 2010)). 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.” State v. Smith, 24 S.W.3d 274, 283 (Tenn.

2000).

Our supreme court has summarized prosecutorial misconduct regarding closing

arguments as follows:

The basic purpose of closing argument is to clarify the issues that

must be resolved in a case. State v. Banks, 271 S.W.3d 90, 130 (Tenn.

2008). While “argument of counsel is a valuable privilege that should not

be unduly restricted,” Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975),

“such . . . arguments must be temperate, based upon the evidence

introduced at trial, relevant to the issues being tried, and not otherwise

improper under the facts or law.” State v. Goltz, 111 S.W.3d 1, 5 (Tenn.

Crim. App. 2003); Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.

1995); see also State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999).

Because closing argument affords an opportunity to persuade the jury, 11

David L. Raybin, Tennessee Practice: Criminal Practice and Procedure §

29.2, at 97 (2008), leeway should be given regarding the style and

substance of the argument. Banks, 271 S.W.3d at 131; State v. Cauthern,

967 S.W.2d 726, 737 (Tenn. 1998). Hence, counsel may employ “forceful

language in their closing arguments, as long as they do not stray from the

evidence and the reasonable inferences to be drawn from the evidence.”

Banks, 271 S.W.3d at 131.

State v. Sexton, 368 S.W.3d 371, 418-19 (Tenn. 2012).

The court has also advised that a criminal conviction should not be lightly

overturned solely on the basis of the prosecutor’s closing argument. Banks, 271 S.W.3d

at 131 (citing United States v. Young, 470 U.S. 1, 11-13 (1985); State v. Bane, 57

S.W.3d 411, 425 (Tenn. 2001) (holding that a prosecutor’s improper closing argument

does not automatically warrant reversal)). “An improper closing argument will not

constitute reversible error unless it is so inflammatory or improper that it affected the

outcome of the trial to the defendant’s prejudice.” Id. (citing State v. Thacker, 164

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S.W.3d 208, 244 (Tenn. 2005) (appendix); State v. Cribbs, 967 S.W.2d 773, 786 (Tenn.

1998)); see also State v. Reid, 164 S.W.3d 286, 321 (Tenn. 2005).

Here, consideration of the prosecutor’s comments is not necessary to do

substantial justice. Multiple witnesses testified to seeing the Defendant shoot the victim

multiple times as the victim attempted to leave. Forensic evidence is consistent with the

victim’s being shot while seated in the driver’s seat of his vehicle, which further

corroborated witnesses’ testimony that the victim was seated in his vehicle when the

Defendant shot him multiple times. Moreover, forensic testing confirmed that all bullets

found at the scene were fired from the same weapon, and Dr. Cogswell testified that it

was likely the victim was seated when he was shot multiple times. Regardless of the

improper nature of the prosecutor’s statements, the Defendant is not entitled to relief on

this issue.

II. Evidentiary Issues

The Defendant argues that the trial court erred in admitting into evidence the

following: (1) Ms. Jones’s testimony regarding the victim’s statements; (2) the redacted

convenience store video recording; (3) Ms. Pinkerton’s testimony and 9-1-1 recording;

and (4) the autopsy photographs. The State responds that the trial court properly

admitted these items into evidence “because each item was relevant to an issue at trial,

and any possible unfair prejudice incurred by its admission did not substantially outweigh

its probative value.” The State further argues that even had the trial court erred regarding

admission of any evidence “it was harmless under the circumstances.”

A. Ms. Jones’s Testimony

The Defendant argues that the trial court abused its discretion in overruling his

objection regarding Ms. Jones’s testimony about the victim’s statement. Specifically, the

Defendant argues that the statement, “[y]ou tripping[,]” “unambiguously worked to prove

the truth of the matter asserted that [the Defendant] was in some upset or agitated state.”

The State responds that the trial court properly admitted into evidence Ms. Jones’s

testimony referencing the victim’s statement because the statement was not hearsay and

was offered “to show the effect of the victim’s statement on the [D]efendant.”

During Ms. Jones’s trial testimony regarding the victim’s statement to the

Defendant, defense counsel objected to Ms. Jones’s testimony based on hearsay. The

State responded that nothing in the statement was being offered for the truth of the matter

asserted but rather it was offered to show the effect on the Defendant at that time. The

trial court overruled the objection, finding that nothing was being offered for the truth of

the matter asserted.

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“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).

This court has held that statements used to prove the effect on a listener are not

hearsay:

[A]ny time the statement is used to prove the hearer or reader’s mental state

upon hearing the declaration, words repeated from the witness chair do not

fall within the hearsay exclusion. The statement fails the test of hearsay

because it is not used to prove the truth of the matter asserted in the

statement.

State v. Carlos Jones, No. W2008-02584-CCA-R3-CD, 2010 WL 3823028, at *14-15

(Tenn. Crim. App. Sept. 30, 2010) (quoting Neil P. Cohen, et al., Tennessee Law of

Evidence, § 8.01[7], at 8-23 (5th ed. 2005)); see generally State v. Venable, 606 S.W.2d

298, 301 (Tenn. Crim. App. 1980) (noting that the victim’s statement was not hearsay

because it was offered for its effect on the hearer, the defendant, and established evidence

of his motive in returning to the scene of the crime later in the day and threatening the

victim).

Here, the trial court determined that Ms. Jones’s testimony was not hearsay

because it was not offered to prove the truth of the matter asserted. We agree. As the

State noted, the statement was offered to show the effect on the Defendant. Therefore,

the statement was not hearsay because those statements were not offered for the truth of

the matter asserted. Tenn. R. Evid. 801(c).

B. Convenience Store Video

The Defendant argues that the trial court abused its discretion in admitting the

redacted convenience store video into evidence. Specifically, he argues that the video

“provided no insight as to [the Defendant’s] state of mind” and “the video was unduly

prejudicial under” Tennessee Rule of Evidence 403, concluding that “the miniscule

probative value of this video was significantly outweighed by its prejudicial effect.” The

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State responds that the trial court properly admitted the recording because “it was

relevant to show that the [D]efendant was not only in the area after the shooting, but

showed his demeanor and state of mind shortly after the offense.” We agree with the

State.

During trial, the prosecutor addressed the trial court and explained that he intended

to call a convenience store clerk, Charles Fuller. The prosecutor also said that he

intended to use this witness to introduce a redacted store surveillance video recording.

He explained that he believed this witness’s testimony would be relevant to show that the

Defendant was in the area near the victim’s murder and “relevant to show [the

Defendant’s] demeanor and state of mind shortly after the offense.” Defense counsel

objected, arguing that the Defendant’s being in the area was not an issue because there

was testimony from other witnesses establishing the location of the murder. Regarding

how the video might portray the Defendant’s demeanor, defense counsel argued that

there was no audio in the video and that “you can’t even really see [the Defendant] in the

video.” The trial court overruled the Defendant’s relevance objection and allowed the

witness’s testimony and video recording, subject to redactions.

The general admissibility of evidence is governed by Tennessee Rules of Evidence

401 and 403. Under these rules, the trial court must determine, first, whether the

evidence offered is relevant. Tenn. R. Evid. 401. Evidence is deemed relevant if it has

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

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

evidence.” Tenn. R. Evid. 401. Although relevant evidence is generally admissible, see

Tennessee Rule of Evidence 402, it “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

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

presentation of cumulative evidence[.]” See Tenn. R. Evid. 403; State v. Banks, 564

S.W.2d 947, 950-51 (Tenn. 1978). 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.” Banks, 564 S.W.2d at 950-51. This court has also stated

that “[p]rejudice becomes unfair when the primary purpose of the evidence at issue is to

elicit emotions of ‘bias, sympathy, hatred, contempt, retribution, or horror.’” State v.

Collins, 986 S.W.2d 13, 20 (Tenn. Crim. App. 1998) (quoting M. Graham, Handbook of

Federal Evidence, 182-83 (2d ed. 1986)).

Here, we agree with the trial court that the video was relevant to show that the

Defendant was near the crime scene shortly after the murder. While the Defendant’s

demeanor is not fully clear in the video, the Defendant is visible in the video and he

appears to be in a hurry to obtain items from the store clerk. The Defendant offers little

argument as to any prejudicial effect this video recording might have had, and we

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conclude that its probative value is not substantially outweighed by the danger of unfair

prejudice. See Tenn. R. Evid. 403; Banks, 564 S.W.2d at 950-51.

C. Ms. Pinkerton’s Testimony and 9-1-1 Recording

The Defendant argues that the trial court abused its discretion in allowing the State

to re-play Ms. Pinkerton’s 9-1-1 call during her testimony. He argues that this was

unduly prejudicial under Tennessee Rule of Evidence 403 and that “the prejudicial effect

of playing the recording again vastly outweighed its probative value.” The State

responds that the trial court did not abuse its discretion in allowing the recording to be

played again and “having Ms. Pinkerton identify herself as the caller.” The State argues

that the Defendant failed to show an abuse of discretion. We agree with the State.

In this case, the 9-1-1 recording had already been marked as an exhibit and entered

into evidence. It was re-played after Ms. Pinkerton gave her account of the shooting, and

she identified herself as a 9-1-1 caller. While cumulative, we conclude that there is no

prejudice to the Defendant in playing the recording again for the jury. Thus, the

Defendant is not entitled to relief regarding this issue.

D. Autopsy Photographs

The Defendant argues that the trial court abused its discretion in overruling his

objection to “gruesome and inflammatory autopsy photographs” of the victim. He argues

“[t]here was already adequate medical testimony at trial as to the substance of the

photographs.” Specifically, a “wound diagram” had been introduced “regarding wound

locations on the victim’s body.” The Defendant asserts that the admission of the

photographs was improper under Tennessee Rule of Evidence 403 “as the probative value

of the photographs was outweighed by the danger of unfair prejudice.” The State argues

that the autopsy photographs were properly admitted. We agree with the State.

At trial, defense counsel objected to the introduction of these photographs on the

grounds that they were gruesome and inflammatory. Defense counsel further argued that

the doctor used a diagram and portrayed the same information as the photographs. The

prosecutor responded that the location of the gunshot wounds on the victim’s body were

relevant to show intent and premeditation. He argued, “It’s hard for the jurors to

visualize gunshot wounds on a diagram of the autopsy report.” The trial court found that

the photographs were “not especially shocking and reprehensible, particularly in a murder

case and that they do go to the nature and extent of the injuries and they’re relevant to

issues of intent.”

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“The more gruesome the photographs, the more difficult it is to establish that their

probative value and relevance outweigh their prejudicial effect.” Banks, 564 S.W.2d at

951. Photographs offered by the State must be relevant to prove some part of its case and

must not be admitted solely to inflame the jury and prejudice it against the defendant. Id.

Whether to admit the photographs rests within the sound discretion of the trial court and

will not be reversed absent a clear showing of an abuse of that discretion. Id. at 949; see

also State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993); State v. Allen, 692

S.W.2d 651, 654 (Tenn. Crim. App. 1985).

Additionally, our supreme court has held that photographs “taken during or after

an autopsy” are problematic “because lay jurors normally do not have the experience

necessary to draw correct inferences from the appearance of internal organs.” Banks, 564

S.W.2d at 951 (citing State v. Morris, 157 So. 2d 728, 731 (1963)). “In many cases, the

facts concerning the injuries and the cause of death may be adequately established and

better explained by a pathologist.” Id. at 952. However, in Banks, our supreme court

acknowledged that a “case can be imagined in which a photograph could supplement the

medical testimony to give a better understanding of the number of wounds inflicted and

the manner in which the killing was carried out[.]” Id.

Here, Dr. Cogswell used the autopsy photographs to further explain the wound

locations on the victim’s body. While the photographs depict the victim’s multiple

wounds, they are not overly gruesome or inflammatory. The State used these

photographs to show the various types and severity of the victim’s wounds in an attempt

to prove premeditation. Because the photographs were not overly gruesome or

inflammatory and were used to explain the manner in which the killing was carried out,

the probative value of the photographs was not substantially outweighed by the danger of

unfair prejudice. Tenn. R. Evid. 403; Banks, 564 S.W.2d at 950-51. Thus, the Defendant

is not entitled to relief regarding this issue.

E. Cumulative Error

Finally, the Defendant argues that cumulative evidentiary errors committed during

his trial entitle him to a new trial. The State argues that the Defendant has failed to

establish cumulative error. We agree with the State.

Under the cumulative error doctrine, our supreme court has stated,

[T]here may be multiple errors committed in trial proceedings, each of

which in isolation constitutes mere harmless error, but which when

aggregated, have a cumulative effect on the proceedings so great as to

require reversal in order to preserve a defendant’s right to a fair trial.

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State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). Therefore, necessarily, “[t]o warrant

assessment under the cumulative error doctrine, there must have been more than one

actual error committed in the proceedings.” Id.

Here, there was not “more than one actual error committed in the proceedings.”

See Hester, 324 S.W.3d at 76. Accordingly, we hold that the Defendant is not entitled to

relief on the basis of cumulative error.

III. Sentencing

The Defendant argues that the trial court erred in failing to properly consider

mitigating factors in determining his sentence. The State responds that the trial court

properly sentenced the Defendant. We agree with the State.

At the sentencing hearing, the Defendant argued for the following mitigating

factors, which the trial court declined to apply: (2) the Defendant acted under strong

provocation; (11) the offense was committed under such unusual circumstances that it is

unlikely that a sustained intent to violate the law motivated the criminal conduct; and (13)

any other factor consistent with the purposes of this chapter. Tenn. Code Ann. § 40-35-

113.

Regarding mitigating factor (2), the trial court determined that the Defendant did

not act under strong provocation because the victim was unarmed, made no overt threat

to the Defendant, and attempted to leave the house as instructed by the Defendant. The

trial court further reasoned that trial testimony established that as the victim was leaving,

the Defendant followed him and began shooting. Thus, there was “not strong

provocation as would be indicative under this mitigating circumstance at all.”

Regarding mitigating factor (11), the trial court determined that the Defendant had

a sustained intent to violate the law as evidenced by the fact that he “had gone on the run”

from “October 4, 2013 to October 8, 2013[.]” The trial court further reasoned that the

Defendant had multiple opportunities to stop his criminal conduct:

The fact that [the victim] was leaving the premises as [the Defendant] had

requested that he do, demand that he do, and that [the Defendant] continued

to follow up and down the path and then to shoot [the victim] inside of the

car. Not only in the driver’s side but around the back as some testimony

indicates, and also through the passenger side window.

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The trial court concluded that the Defendant had ample opportunities to “stop and reflect

and that a sustained intent to violate the law was likely present.”

The trial court also declined to apply mitigating factor (13). The trial court

explained that this factor was generally applied to defendants who demonstrate remorse.

Here, the trial court found that the Defendant failed to appear remorseful at the

conclusion of his trial or at the sentencing hearing. The trial court also considered the

fact that the Defendant had made no contributions to the victim’s family, even though the

victim impact statement indicated that the family had incurred $2,500 in funeral

expenses. Finally, the trial court considered the Defendant’s failure to admit guilt and

determined that the Defendant did “not appear to be” a candidate for rehabilitation “at

present.”

The Sentencing Reform Act was enacted in order “to promote justice” by ensuring

that every defendant “be punished by the imposition of a sentence justly deserved in

relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to

implement the purposes of the Sentencing Reform Act, trial courts must consider several

sentencing principles. The sentence imposed for an offense “should be no greater than

that deserved for the offense committed” and “should be the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.

§ 40-35-103(2), (4). Thus, before a trial court imposes a sentence upon a convicted

criminal defendant, it must consider: (a) the evidence adduced at the trial and the

sentencing hearing; (b) the presentence report; (c) the principles of sentencing and

arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal

conduct involved; (e) evidence and information offered by the parties on the

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-

35-113 and 40-35-114; (f) any statistical information provided by the Administrative

Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any

statement the defendant wishes to make in the defendant’s own behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

When an accused challenges the length and manner of service of a sentence, this

court reviews the trial court’s sentencing determination under an abuse of discretion

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). This court will uphold the trial court’s sentencing decision “so

long as it is within the appropriate range and the record demonstrates that the sentence is

otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-

10. Moreover, under such circumstances, appellate courts may not disturb the sentence

even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346

(Tenn. 2008). Further, “[s]o long as a trial court properly articulates reasons for ordering

consecutive sentences, thereby providing a basis for meaningful appellate review, the

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sentences will be presumed reasonable and, absent an abuse of discretion, upheld on

appeal.” State v. Pollard, 432 S.W.3d 851, 862 (Tenn. 2013) (citing Tenn. R. Crim. P.

32(c)(1) (“The order [for consecutive sentences] shall specify the reasons for this

decision and is reviewable on appeal.”); see also Bise, 380 S.W .3d at 705). The burden

of showing that a sentence is improper is upon the appealing party. See Tenn. Code Ann.

§ 40-35-401, Sentencing Comm’n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257

(Tenn. 2001).

“[T]he 2005 amendments rendered advisory the manner in which the trial court

selects a sentence within the appropriate range, allowing the trial court to be guided by—

but not bound by—any applicable enhancement or mitigating factors when adjusting the

length of a sentence.” Bise, 380 S.W.3d at 706. In accordance with the broad discretion

now afforded a trial court’s sentencing decision,

misapplication of an enhancement or mitigating factor does not invalidate

the sentence imposed unless the trial court wholly departed from the 1989

Act, as amended in 2005. So long as there are other reasons consistent with

the purposes and principles of sentencing, as provided by statute, a sentence

imposed by the trial court within the appropriate range should be upheld.

Id.

We conclude that the Defendant’s sentence complies with the purposes and

principles of the Sentencing Reform Act. In determining the Defendant’s sentence, the

trial court considered the Defendant’s presentence report, Ms. Burch’s testimony, and

arguments from the State and the Defendant. Upon consideration of this evidence, the

trial court also determined that multiple enhancement factors applied to the Defendant

and supported these findings with ample reasoning. Furthermore, we conclude that the

trial court did not err in failing to apply the argued for mitigating factors. Thus, the

Defendant is not entitled to relief, and we uphold the trial court’s sentence.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed.

______________________________

D. KELLY THOMAS, JR., JUDGE

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