State of Tennessee v. Timothy Leron Brown

04/08/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 15, 2018 Session

STATE OF TENNESSEE v. TIMOTHY LERON BROWN

Appeal from the Criminal Court for Davidson County

No. 2013-A-365 Steve R. Dozier, Judge

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No. M2017-00904-CCA-R3-CD

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The Defendant, Timothy Leron Brown, was convicted of first degree premeditated

murder, unlawful possession of a handgun by a convicted felon, three counts of

especially aggravated kidnapping, attempted first degree murder, especially aggravated

robbery, employment of a firearm during the commission of a dangerous felony while

having prior felony convictions, theft of property valued less than $500, and failure to

appear. The Defendant received an effective sentence of life plus thirty-one years. On

appeal, the Defendant challenges (1) the sufficiency of the evidence of his convictions for

first degree premeditated murder and theft, (2) the trial court’s denial of his motion to

sever the offenses for trial, (3) the admission of bad act evidence pursuant to Tennessee

Rule of Evidence 404(b), (4) the admission of evidence that the murder victim was a

police informant, (5) the trial court’s denial of his motion to suppress his cell phone

records obtained pursuant to a judicial subpoena, (6) the trial court’s denial of his motion

to exclude cell tower evidence as unreliable expert proof, (7) the trial court’s denial of his

motion to suppress evidence obtained from the search of his cell phone, (8) the admission

of text messages from the Defendant’s cell phone, (9) the admission of photographs from

the Defendant’s cell phone, and (10) the trial court’s imposition of partial consecutive

sentences. We conclude that the evidence is insufficient to support the Defendant’s theft

conviction, and we, therefore, reverse and dismiss the theft conviction. We also conclude

that the trial court erred in failing to sever the offenses and that the error was not

harmless as to the Defendant’s conviction for first degree premeditated murder.

Accordingly, we reverse the Defendant’s conviction for first degree premeditated murder

and remand the case to the trial court for a new trial. We otherwise affirm the trial

court’s judgments.

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

in Part; Reversed in Part; Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Aisha McWeay, Deputy Public Defender; and Jeffrey A. DeVasher (on appeal) and

Jonathan Wing and Kathryn Hansel (at trial), Assistant Public Defenders, for the

appellant, Timothy Leron Brown.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson, J.

Wesley King, and Ana Escobar, Assistant District Attorneys General, for the appellee,

State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

The evidence presented at trial established that on August 9, 2012, Mr. Chijoke

Ike was shot multiple times, and police officers found Mr. Ike’s body in a wooded area

five days later on August 14. The Defendant and his co-defendant, Aaron Eugene Hall,

Jr., were charged with the first degree premeditated murder of Mr. Ike.

On August 9, shortly after Mr. Ike was shot, the Defendant contacted Mr. Alan

Beverly and arranged to purchase drugs from him. When Mr. Beverly arrived at the

agreed-upon location, the Defendant and Mr. Keandre March abducted him at gunpoint

and drove away in Mr. Beverly’s car. As the Defendant was driving, Mr. Beverly offered

the Defendant and Mr. March $30,000 in exchange for his freedom. Mr. Beverly

contacted his brother, whom the Defendant instructed to meet them at a bowling alley.

While en route, Mr. Beverly and Mr. March fought over the guns; all three men were shot

during the struggle; and Mr. March died as a result of his gunshot wounds. The

Defendant wrecked the car, fled the scene, and later was found by police officers hiding

in a nearby dumpster. A gun found in the car was determined to be the gun used to shoot

Mr. Ike. The gun had been taken from Mrs. Brenda McGinnis’s apartment during a

burglary in April 2011. The Defendant was due to appear in court on unrelated charges

on August 9 but failed to appear.

In addition to the first degree premeditated murder of Mr. Ike, the Defendant was

charged under the same indictment with unlawful possession of a handgun by a convicted

felon, especially aggravated kidnapping of Mr. Beverly resulting in serious bodily injury,

especially aggravated kidnapping of Mr. Beverly in order to hold Mr. Beverly for ransom

or reward, especially aggravated kidnapping of Mr. Beverly accomplished with a deadly

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weapon, attempted first degree murder of Mr. Beverly, especially aggravated robbery of

Mr. Beverly, employment of a firearm during the commission of a dangerous felony

while having prior felony convictions, theft of property of Mrs. McGinnis valued less

than $500, and failure to appear on a felony charge. Prior to trial, the trial court severed

Mr. Hall’s trial from the Defendant’s trial but denied the Defendant’s motion to sever the

offenses. On the morning of trial, the defense announced that the Defendant waived a

jury determination of the existence of his prior felony convictions for the purposes of the

firearm charges and allowed the trial court to make that decision at a later time.

The State’s theory at trial was that the Defendant committed the offenses against

Mr. Ike because Mr. Ike was a confidential informant for the police. The State also

maintained that the Defendant committed the offenses against Mr. Beverly because the

Defendant mistakenly believed that Mr. Beverly was also a confidential informant for the

police. The State argued that the Defendant utilized a stolen firearm during the

commission of the offenses and that he failed to attend a court appearance on a separate

charge in order to commit the offenses.

Ms. Uloma Ike, Mr. Ike’s sister, testified that Mr. Ike was twenty-eight years old

when he died and drove a blue four-door Chevrolet Impala. He had been shot a few years

prior to his death, and the bullet remained in his hip. Mr. Ike’s family members last saw

him approximately one week before his body was found. When Mr. Ike’s family was

unable to contact him, they filed a missing person’s report on Monday, August 13, and

Mr. Ike’s body was located the following day.

Ms. Shatoya Cartwright was visiting her grandparents’ home located near Mr.

Hall’s home in Nashville during the evening hours of August 9, 2012. Ms. Cartwright

testified that as she and her grandmother were sitting on her grandparents’ porch, she saw

a navy car, which was later identified as Mr. Ike’s car, park near Mr. Hall’s home. Mr.

Hall came out of his house and entered the car on the passenger side. A few minutes

later, Ms. Cartwright saw a man running down the street and toward the car while

holding a gun. Ms. Cartwright did not recall what the gun looked like and was unable to

offer a description of the gunman or determine his race. She did not recall seeing Mr.

Hall exit the car.

Ms. Cartwright helped her grandmother inside the home as quickly as she could.

Once inside, Ms. Cartwright heard gunshots. She was unable to recall the number of

gunshots fired but stated that she heard more than one. She then saw a silver sports

utility vehicle (“SUV”) quickly drive away from the scene and toward the general

direction from which the gunman came.

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At approximately 7:00 p.m. on August 9, Metropolitan Nashville Police Officer

Dustin Chester responded to a report of shots fired in the area of 33rd Avenue and Felicia

Street. Upon arriving, he observed a blue Chevrolet Impala parked on the street. After

Officer Chester spoke to a woman at the scene, he and other officers began searching the

area for a possible suspect or victim. Sergeant John Robinson saw someone running into

a nearby wooded area, and officers began to search the area. The wooded area was thick

and difficult to walk through, and the officers were unable to locate anyone in the area.

During the search, neither Officer Chester nor Sergeant Robinson observed any

projectiles on the ground, and Officer Chester did not observe any evidence indicating

that a shooting had occurred.

During the early morning hours of August 14, 2012, Sergeant John Pepper went to

the scene of the shooting while investigating a report of a missing person. He was unable

to locate Mr. Ike, the missing person, but Mr. Ike’s car was still in the area. Sergeant

Pepper had the car towed. He did not search the wooded area at that time because it was

dark, the wooded area was thick, and he did not want to risk destroying any evidence.

Rather, officers waited until daylight to conduct an additional search.

Detective James Arendall and Detective Daniel Sadderfield assisted in searching

the area for Mr. Ike later that day. While they were driving down 33rd Avenue and

toward Felicia Street with their windows down, Detective Arendall smelled a foul odor

and decided to check a wooded area. Detective Arendall found a deceased man, who was

later identified as Mr. Ike, lying face down in some bushes in the wooded area. Mr. Ike

was not wearing a shirt but was wearing shorts and tennis shoes. Detective Arendall and

other officers sealed off the area and contacted the crime scene investigation unit.

Detective Arendall saw a spent round in the street and notified a crime scene

investigator to collect it. Crime scene investigator Charles Linville collected the

projectile from the road and acknowledged on cross-examination that the projectile could

have been moved by water from a recent storm. He also collected a white iPhone that was

underneath Mr. Ike’s body and noted that Mr. Ike had money clutched in his right hand.

Crime scene investigator Lynn Mace processed Mr. Ike’s Chevrolet Impala and

collected a package of cigarettes, a Cricket Samsung cell phone, a Sprite bottle, and a

cigarette butt from inside the car. She also lifted latent prints from the car, swabbed the

car for DNA, and vacuumed materials. Proof later presented at trial revealed that the

evidence collected from the car was not submitted to the Tennessee Bureau of

Investigation (“TBI”) for testing.

Dr. David Zimmerman, a forensic pathologist, was accepted by the trial court as

an expert in forensic pathology. He conducted the autopsy of Mr. Ike. Mr. Ike’s body

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was in a state of decomposition, and he was identified by his fingerprints. Dr.

Zimmerman concluded that Mr. Ike’s cause of death was a gunshot wound to his chest

and that his manner of death was homicide. Dr. Zimmerman also concluded that the

condition of Mr. Ike’s body was consistent with August 9 being his actual date of death.

Dr. Zimmerman testified that he initially determined that Mr. Ike was shot five

times from indeterminate ranges. A bullet entered Mr. Ike’s right arm, fractured his right

humerus bone between his elbow and shoulder, exited his upper right arm, reentered on

the lateral side of his chest, and exited on the right side of his back. A second bullet

entered his right shoulder and exited his right upper back, injuring the skeletal muscle of

his right shoulder. A third bullet entered the left side of his chest, penetrated his aorta,

fractured a vertebra, and exited through the right side of his back. Dr. Zimmerman

described Mr. Ike’s injury from this bullet as “devastating” and said that Mr. Ike’s death

was “fairly immediate.” A fourth bullet entered the left side of Mr. Ike’s chest, fractured

a rib, and exited through the left side of his back. A fifth bullet entered the side of his left

forearm, injured his skeletal muscle, and exited on the side of his left forearm.

Dr. Zimmerman noted that he recovered a projectile from a prior gunshot wound

from Mr. Ike’s right hip. Dr. Zimmerman also recovered a projectile in the muscle on the

right side of Mr. Ike’s neck, which he initially believed was from a prior gunshot wound

because he was unable to see a wound track associated with the projectile. The TBI

analyzed the projectile and determined that the projectile appeared to have been fired

from the same firearm as another projectile found at the scene. As a result, Dr.

Zimmerman amended his report to conclude that the projectile in Mr. Ike’s neck probably

occurred at the same time as the other five gunshot wounds. He stated that the side of the

projectile was slightly corroded, which was a factor that led him to believe that the

gunshot wound resulting from the projectile occurred at a prior date. Dr. Zimmerman

explained that Mr. Ike’s body was in a decomposed state and that the projectile was

located in tough tissue. He said it appeared that the projectile entered an artery and

traveled up to Mr. Ike’s neck. He noted that there was no bleeding in the tissue or a

wound track leading up to that projectile. He also noted that areas of Mr. Ike’s left check,

face, and neck were partially skeletonized. The left side of his chest had an area of insect

activity, and Dr. Zimmerman could not determine whether a gunshot entry wound was

present.

On cross-examination, Dr. Zimmerman testified that Mr. Ike could have lived for

a brief period of time after receiving the gunshot wound that penetrated his heart and that

Mr. Ike could have run or moved about for a short period after receiving the injury.

Investigator Andrae Starling, who was formerly assigned to the specialized

investigation division, testified that he utilized Mr. Ike as a confidential informant.

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Investigator Starling stated that records regarding confidential informants were

maintained in a vault in the specialized investigation division to ensure that only the

officer who was working with the informant and the officer’s supervisors knew the

informant’s identity. Another confidential informant provided Investigator Starling with

information regarding Mr. Ike. Following an investigation, Mr. Ike was arrested on

felony marijuana charges and subsequently agreed to be a confidential informant. Mr.

Ike participated in controlled purchases of drugs for the police, and officers obtained a

search warrant for a home as a result of the information that Mr. Ike provided. During

the execution of the search warrant in June 2012, officers recovered drugs, a weapon,

drug paraphernalia, and a gang ledger. Three people were arrested, and their cases were

resolved in general sessions court in July 2012.

On cross-examination, Investigator Starling testified that while investigating Mr.

Ike, he observed Mr. Ike sell marijuana on four occasions, and he arrested Mr. Ike

following the fourth transaction. Mr. Ike was selling a quarter of a pound to two pounds

of marijuana during each transaction, and he was arrested in March 2012 for possession

of marijuana for resale in a drug-free school zone.

Investigator Starling did not recall Mr. Ike ever mentioning the Defendant or Mr.

March to him. Investigator Starling was unaware of any connection between the

Defendant and the arrests of the three individuals as a result of the search warrant. He

agreed that his investigation did not reveal any connection between the Defendant and the

home where the search occurred. The Defendant was not found in the home and was not

arrested when the search warrant was executed. Investigator Starling acknowledged that

he had no information suggesting that the Defendant knew or had any connection to those

who were arrested.

Because the cases against the three individuals who were arrested were resolved,

Mr. Ike never had to go to court or testify against them. Investigator Starling did not

include Mr. Ike’s name on the search warrant or any paperwork and did not tell anyone

outside of law enforcement that Mr. Ike was a confidential informant. Investigator

Starling had no information that the three individuals who were arrested or anyone else

outside of law enforcement knew that Mr. Ike was a confidential informant. Investigator

Starling acknowledged that he did everything that he could to protect Mr. Ike’s identity

as a confidential informant.

On redirect examination, Investigator Starling testified that despite the security

and safeguards, the identities of confidential informants are occasionally discovered. He

agreed that he had no way of knowing whether or not Mr. Ike’s status as a confidential

informant was discovered. On recross examination, Investigator Starling stated that

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following the June arrests, Mr. Ike never mentioned any concern about his identity being

discovered.

Mr. Alan Beverly testified that on August 9, 2012, the Defendant called him and

asked to purchase marijuana for $100. They agreed to meet at Sunnyview Court, and Mr.

Beverly arrived in his Chevrolet Malibu between 4:00 and 6:00 p.m. Mr. Beverly saw

the Defendant in a car with a passenger. After Mr. Beverly parked, a man named

“Justin” entered his car and sat in the passenger seat. As Mr. Beverly was speaking with

Justin, he saw the Defendant walking up from his rear view mirror. The Defendant sat in

the backseat and produced a black and silver gun, and Justin fled. The Defendant told a

man later identified as Mr. March to “come on,” and Mr. March got in the backseat with

the Defendant. The Defendant used Mr. March’s nickname, “Ke-Thang,” when

addressing him, and Mr. Beverly stated that he had not met Mr. March previously. Mr.

March was holding a black and brown gun.

Mr. Beverly testified that the Defendant said Mr. Beverly had “snitched” on his

cousin and that Mr. Beverly was going to die. Mr. Beverly denied at trial that he was a

confidential informant or that he had “snitched” on the Defendant’s cousin. Mr. Beverly

stated that Mr. March told him that they had killed two people already that day. When

Mr. Beverly refused to drive to a location as instructed by the Defendant, the Defendant

gave his gun to Mr. March and drove the car while Mr. Beverly sat in the front passenger

seat. Mr. March was sitting in the middle of the backseat and holding two guns.

Mr. Beverly stated that he told the Defendant that he could pay them $30,000. Mr.

Beverly explained that while he did not have the money, he told the Defendant that he did

in an effort to have time to alert someone to the abduction. Mr. Beverly called his

brother, Mr. Michael Wilson, and told him that he needed $30,000 because he had been

kidnapped. The Defendant spoke to Mr. Wilson and instructed him to meet them at a

bowling alley in Madison with the money, and the Defendant proceeded to turn around in

the parking lot of a CVS Pharmacy. At some point, Mr. March hit Mr. Beverly on the

forehead with a gun.

When Mr. Beverly saw Mr. March looking out the window, Mr. Beverly jumped

into the backseat, and they wrestled over the guns. Mr. Beverly believed he bit Mr.

March’s ear during the struggle. A gun was fired several times, and Mr. Beverly was

shot in his leg. The Defendant stopped the car, got out, pried Mr. Beverly’s hands off the

black and brown gun, and shot Mr. Beverly in his stomach. Mr. Beverly acted as if he

was “down.” The Defendant got back into the car and began driving down Gallatin Road

toward the Rivergate Mall, while Mr. March and Mr. Beverly remained in the backseat.

Mr. Beverly believed the Defendant said Mr. March had shot the Defendant.

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The Defendant and Mr. March discussed obtaining the money from Mr. Beverly’s

brother and “getting rid” of Mr. Beverly. The car then went off the road. Mr. Beverly

and Mr. March again struggled over the firearms. Mr. Beverly got the black and brown

gun away from Mr. March and shot him three times with it. Mr. Beverly then got out of

the car. He did not see the Defendant and did not know where the Defendant went.

The police responded to the scene, and Mr. Beverly was transported by ambulance

to the hospital where he remained for seven to nine days. He had scars on his stomach,

leg, and buttocks, and one of the shots hit a nerve, causing his foot to “hang.” He said he

did not tell the police officers at the hospital that he was meeting the Defendant to sell

him marijuana because he did not want to get into trouble. He acknowledged that he was

convicted of two drug offenses in 2005 and drug and firearms offenses in 2011. On

cross-examination, Mr. Beverly testified that in April 2006, he pled guilty to possession

of ecstasy with the intent to sell and possession of cocaine with the intent to sell and

received concurrent sentences of eight years of probation. In June 2011, he was

convicted of possession of marijuana with the intent to sell and possession of a firearm by

a convicted felon and received two-year sentences for each conviction. He was on

probation at the time of the offenses and at the time of trial.

Mr. Beverly acknowledged that he had planned to sell the marijuana located in his

glove compartment to the Defendant and that he was meeting with Justin to sell him

marijuana. Mr. Beverly stated that while he spoke to police officers on three occasions,

the first time that he mentioned he had arranged to sell marijuana to the Defendant and

Justin was during a court proceeding in November 2015. Mr. Beverly agreed that when

he spoke to officers, he denied that the marijuana found in his car belonged to him and

made it appear as if his encounter with Justin was coincidental. He acknowledged that

when he spoke to officers at the hospital, he likely denied that he knew how to contact

Justin and that he did not tell the officers that Justin’s number was stored in his cell

phone. Mr. Beverly agreed that he had approximately $2,000 in cash in his car.

Mr. Beverly testified that the vehicle the Defendant was driving when they met

appeared to be a Toyota that was champagne in color. Mr. Beverly could not recall

whether Mr. March told him that he had shot two or three people that day. Mr. March

also told him to watch the news while holding up the black and brown gun. Mr. Beverly

agreed that Mr. March said the gun had “two bodies on it.”

Mr. Michael Wilson, Mr. Beverly’s brother, testified that on the evening of August

9, 2012, he received a call from Mr. Beverly, who said he needed money. Mr. Wilson

heard background noise and could not understand Mr. Beverly, so Mr. Wilson ended the

call. Mr. Beverly called a second time, and Mr. Wilson could hear commotion in the

background. Mr. Beverly told Mr. Wilson that “they” needed $30,000 or “they are going

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to do something to me.” Mr. Wilson heard “scuffling” in the car, and the call ended. Mr.

Wilson then received a call from a private number. When Mr. Wilson answered the call,

a man told him that they had Mr. Beverly and that they were going to kill Mr. Beverly if

Mr. Wilson did not give them $30,000. Mr. Wilson was instructed to meet them at a

bowling alley. Mr. Wilson called his mother, Mr. Beverly’s friends, and Mr. Beverly’s

girlfriend, but no one had heard from Mr. Beverly. Mr. Wilson went to the bowling alley

but did not bring any money with him. He remained in the parking lot for ten to fifteen

minutes until he received a call that Mr. Beverly was at Vanderbilt Hospital.

On the evening of August 9, 2012, Mr. Richard Colley, a manager at Pep Boys

located on North Gallatin Pike, was standing behind the bay talking to a technician when

he heard a “popping noise” from the road. Mr. Colley did not see anything and continued

talking to the technician. He then saw a silver car traveling northbound on Gallatin Pike

suddenly make a left, drive across four lanes of traffic, and strike a ditch. The driver

attempted to drive the car up the embankment, but its tires began spinning. The rear

passenger side door opened, and Mr. Colley heard gunfire. He saw smoke coming out of

the car and guns being fired inside the car. The door then slammed shut.

Mr. Colley saw a man with blood on him exit through the front passenger side

door and run up the embankment. The man ran down a road that led to a Home Depot

and then veered right toward a mall. Mr. Colley lost sight of the man in the strip malls

and the traffic and did not see him again. Mr. Colley saw a man sit up in the car in the

backseat and yell for help. Mr. Colley and his colleagues called 9-1-1, and the man

remained at the scene until emergency personnel arrived.

Sergeant Ted Woosley was the first officer at the scene at North Gallatin Pike,

arriving at 7:06 p.m. He saw a silver vehicle in a ditch and an African American man,

later identified as Mr. Beverly, standing outside the vehicle with his hands on top of the

vehicle. As Sergeant Woosley approached, he saw a gun lying on the ground and kicked

it toward the back of the vehicle and away from Mr. Beverly. Sergeant Woosley looked

inside the vehicle and saw someone lying on the back passenger seat, apparently

deceased.

Mr. Beverly’s clothing was covered in blood. He appeared to be in pain and

reported that he had been shot. He told Sergeant Woosley that an African American man

with the nickname of “T” ran up the embankment and toward Home Depot. Mr. Beverly

reported that the man had jumped into Mr. Beverly’s vehicle and kidnapped him. Mr.

Beverly said the man told him “to watch the news because he’s on a killing spree” and

that “this is what happens when you snitch.”

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On cross-examination, Sergeant Woosley testified that Mr. Beverly did not

identify the man who ran from the car as the Defendant and did not tell him that the

Defendant’s nickname was “Marley.” Mr. Beverly did not state that he had the man’s

cell phone number stored in his cell phone.

Officer Brad Bracey and his K-9 located the Defendant in a dumpster behind a

nearby strip mall. The Defendant had a gunshot wound in his shoulder. A large amount

of blood was in the dumpster, and the Defendant was not moving and was barely

conscious. He was transported to the hospital by ambulance.

Crime scene investigators Felicia Evans and Lynn Mace processed the scene. A

Rock Island Armory .45 automatic pistol was located in the grass behind Mr. Beverly’s

car. A live .45 cartridge and a spent .45 cartridge case were on the ground between the

driver’s side front and rear doors. A cell phone charger, a gray t-shirt, and a pair of

multicolored shorts were also outside the car.

Blood was present throughout the interior of the car, and transfer blood stains were

on the exterior doors and door handles. Protein powder had spilled all over the car’s back

compartment. At the scene, a projectile was recovered from the driver’s side door of the

car; a .45 caliber cartridge casing was on the floorboard on the front passenger side; and

two .45 caliber cartridge casings were on the backseat.

The investigators obtained a search warrant for the car, and the car was towed to

the crime scene office where Investigator Evans processed the car the following day. She

located an Apple iPhone and a Motorola Boost cell phone in the front passenger

compartment and a blue cell phone in the middle of the backseat. She collected a folding

knife, a wallet that contained Mr. Beverly’s identification and $88 in cash, a piece of

paper with “T-gun” and a telephone number written on it, a set of keys, and $200 in cash

from the dashboard compartment. A .45 caliber cartridge casing was on the front

passenger seat; a set of keys to the Chevrolet Malibu was on the floorboard, and a jar

containing baggies of what appeared to be marijuana was inside the glove box.

Investigator Evans found a .40 caliber Smith & Wesson cartridge casing and a .45 caliber

cartridge casing on the floorboard on the rear passenger side, and a projectile on the seat.

She also located a projectile inside the car’s trunk and identified strike marks throughout

the car.

Investigator Evans recovered a black and silver Smith & Wesson .40 caliber pistol

underneath a cooler in the rear driver’s side of the car. The serial number of the pistol

had been ground or scratched out. The pistol’s magazine contained two live Smith &

Wesson .40 caliber cartridges. A cartridge casing was “stove piped” or stuck in the

ejection port where the casing failed to extract and eject properly. Investigator Evans

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explained that when this occurs, a firearm will not continue to cycle and cannot be fired

until the cartridge casing is manually cleared from the ejection port.

Investigator Evans lifted latent prints from the magazine of the .40 caliber pistol

and the doors of the car. The Defendant’s print was found beside the rear passenger side

door. The prints of Mr. Beverly and Mr. March were found in other areas of the car. No

prints of value were on the magazine of the pistol.

Investigator Mace collected a Cricket cell phone and two shirts outside the

dumpster. The shirts were saturated in blood and appeared to have been cut off of

someone by medical personnel. She collected a Motorola AT&T cell phone and a pair of

shoes from inside the dumpster.

Crime scene investigator Nate Ward swabbed the Defendant’s hands for gunshot

residue at the hospital. He also obtained the Defendant’s clothing and effects, which

included an HTC cell phone, two rubber gloves, a $50 bill that was in the Defendant’s

pocket, and a baggie of green plant material that appeared to be marijuana. Upon

collecting the HTC cell phone, Investigator Ward determined that there was no battery

life left on the cell phone. He stated that pursuant to standard procedure, he removed the

battery from the cell phone before submitting it to the property room in order to prevent

someone from erasing the contents of the cell phone remotely. He also assisted in

processing the Chevrolet Malibu and found three projectiles in the car.

On cross-examination, Investigator Ward testified that he located three separate

piles of cash in the car totaling $1,675. He was unaware of the additional $200 that was

recovered in one of the side pockets of the car. He also found in the car Mr. Beverly’s

pay stub, which showed a net pay of $34.33 and a year-to-date total of $5,326.

Detective Robert Hanson recovered footage from a security camera at CVS

Pharmacy located on the northwest corner of Clarksville Pike and Kings Lane. The

footage showed a silver Chevrolet Malibu driving through the parking lot, and Detective

Hanson stated that it appeared to be Mr. Beverly’s vehicle. On cross-examination,

Detective Hanson testified that the video did not show the car’s license plate or the

driver. The car was being driven relatively slowly and not erratically.

Detective Hanson interviewed Mr. Beverly on multiple occasions and stated that

Mr. Beverly never said he was meeting the Defendant and Justin to sell them marijuana.

Rather, Mr. Beverly made it appear that his meeting with Justin was a chance encounter.

Detective Hanson acknowledged that while Mr. Beverly stated that Mr. March claimed

that his gun had “two bodies on it,” Detective Hanson never determined whether any

other homicides in addition to Mr. Ike’s homicide occurred on August 9. Detective

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Hanson acknowledged that Mr. Beverly’s statements varied regarding whether Mr.

March claimed the gun had been used in one, two, or three murders. On redirect

examination, Detective Hanson testified that during his second interview, Mr. Beverly

stated that “they” said, “[S]**t we already killed an N. today just like that.”

Dr. Adele Lewis, a forensic pathologist, was admitted by the trial court as an

expert in forensic pathology. She conducted Mr. March’s autopsy. She concluded that

Mr. March’s cause of death was multiple gunshot wounds and that his manner of death

was homicide, which she explained simply meant that his death was caused by another.

Dr. Lewis testified that Mr. March was shot five times. One gunshot from an

indeterminate range entered the right side of Mr. March’s upper chest, injuring his right

ribs and right lung. Dr. Lewis recovered a bullet with no jacket from the soft tissues

under the right side of the chest. Two gunshots from indeterminate ranges entered the

left side of the upper chest, injuring the skin, soft tissue, liver, stomach, and pancreas.

Dr. Lewis recovered fragments of a jacket from the right lobe of the liver, fragments of a

jacket and a bullet from the soft tissues along the right side of Mr. March’s body, and a

jacket from the left lobe of the liver. A fourth gunshot entered the right upper arm,

injuring the skin, soft tissues, and muscles in the upper arm. Dr. Lewis observed

stippling and determined that gunshot was from an intermediate range, which meant that

the gun’s muzzle was between six inches and two or three feet away from Mr. March

when fired. A fifth gunshot fired from an intermediate range entered the left side of the

lower back, injuring the skin, soft tissues, ribs, small intestines, aorta, and one of the

bones in the spine. Dr. Lewis recovered a bullet from the spine.

An upper portion of Mr. March’s left ear had been removed. He had multiple

abrasions on the back of his head, which Dr. Lewis stated were caused by blunt trauma.

Mr. March also had abrasions on his left shoulder. Two arrays of contusions or bruises

on his left upper chest and left upper arm were indicative of bite marks.

Federal Bureau of Investigation Agent Steve Scott, who was formally a special

agent forensic scientist in the TBI’s firearm identification section, was accepted as an

expert in the field of firearms and tool mark analysis. While with the TBI, Agent Scott

was asked to examine the Smith & Wesson .40 caliber semi-automatic pistol and the

Rock Island Arms .45 caliber semi-automatic pistol that were recovered at the scene of

the wreck. Photographs of the guns showed that the .40 caliber pistol was silver and

black and that the .45 caliber pistol was black and brown.

Agent Scott noted that while the serial number of the .40 caliber pistol had been

scratched off, he was able to clean up the pistol and obtain the serial number. He stated

that the .40 caliber pistol was functioning properly but noted that the package in which he

- 12 -

received the pistol included a label noting that a .40 caliber cartridge casing had been

“stove piped” in the pistol. He explained that stove piping occurs when the cartridge

casing becomes stuck while ejecting from a firearm. When this occurs, the firearm is

inoperable until the cartridge casing is manually removed. He examined the .40 caliber

casing that was noted to have been stove piped into the pistol and concluded that it had

been fired from the .40 caliber pistol. He stated that a magazine for a .40 caliber pistol

typically holds fourteen cartridges plus one cartridge in the pistol’s chamber. He said

that the .45 caliber pistol was in operating condition and that a magazine typically holds

seven cartridges plus one cartridge in the pistol’s chamber.

Agent Scott was shown two photographs from the Defendant’s cell phone, one of

which was the Defendant pointing a gun at the camera and the second of which was of a

black and silver firearm. Agent Scott stated that the firearm in the photograph appeared

to be a Smith & Wesson brand firearm and was either a .40 caliber or .45 caliber semi-

automatic pistol. He said that while other manufacturers made similar firearms, Smith &

Wesson was the first manufacturer that came to mind. He stated that the firearm depicted

in the photographs was consistent with the Smith & Wesson .40 caliber pistol that he had

examined.

Agent Scott examined four spent .45 caliber cartridge casings, an unfired .45

caliber cartridge, and a .45 caliber projectile from the Gallatin Pike scene. He determined

that the four spent cartridge casings and the projectile were fired from the Rock Island

Arms .45 caliber semi-automatic pistol. He determined that two other .45 caliber

cartridge casings found at the Gallatin Pike scene had been fired from the same .45

caliber pistol. He examined two lead bullet cores recovered from the Chevrolet Malibu

and concluded that the cores were too big to be from a .40 caliber bullet and were

consistent with a .45 caliber bullet. He was unable to match the bullet cores to the .45

caliber pistol. He also examined various bullets and bullet jackets that were recovered

from Mr. March’s body during his autopsy and concluded that they had all been fired

from the .45 caliber pistol. The three projectiles that were collected by Investigator Ward

from the Chevrolet Malibu were not submitted to the TBI for testing.

Agent Scott examined three bullets related to the murder of Mr. Ike. He

determined that a bullet collected from the roadway where Mr. Ike’s Impala was

recovered and a bullet collected from Mr. Ike’s neck were .40 caliber bullets that were

fired from the Smith & Wesson .40 caliber pistol that was recovered from Mr. Beverly’s

vehicle after the wreck. Agent Scott was not able to associate the bullet from Mr. Ike’s

right hip to any of the firearms that he examined. He said the bullet had calcification and

blacking that was consistent with remaining in a body for a number of months or years.

- 13 -

Dr. Laura Boos with the forensic biology section of the TBI crime laboratory was

accepted by the trial court as an expert in serology and DNA analysis. She analyzed

swabs of the firearms and the magazines for blood and DNA. Presumptive tests indicated

the presence of blood on the grip of the .40 caliber pistol; the barrel, drip, and trigger

areas of the .45 caliber pistol; and the tops and bottoms of the magazines. Mr. Beverly’s

DNA was on one area of the grip of the .40 caliber pistol. A DNA profile with a mixture

of at least three individuals was on another area of the grip, and the major contributor was

consistent with a mixture of the DNA of Mr. March and Mr. Beverly. A partial profile

matching Mr. Beverly’s DNA was on the magazine for the .40 caliber pistol. A swab of

the barrel of the .45 caliber pistol had a partial DNA profile that was consistent with a

mixture of at least three individuals, and Mr. Beverly was the major contributor. A

partial profile matching the Defendant’s DNA was on the grip and trigger of the .45

caliber pistol and the pistol’s magazine.

Ms. Laura Hodge was accepted by the trial court as an expert in the field of

microanalysis. She received the gunshot residue kit for Mr. March. She concluded that

gunshot residue was present, which indicated that Mr. March had handled, fired, or been

near a gun when it was fired. She did not receive gunshot residue kits for either the

Defendant or Mr. Beverly.

Mrs. Brenda McGinnis testified that during the evening hours of April 2, 2011, she

and her husband returned to their apartment to find the door kicked in. Mrs. McGinnis’s

Smith & Wesson .40 caliber pistol that she kept under her pillow was taken. She stated

that she did not give anyone permission to take her gun and that she called the police.

On cross-examination, Mrs. McGinnis testified that when she called the police,

she told the officers that her nephew, Mr. Kendel Bacon, had taken the gun. On redirect

examination, she testified that on the day prior to the break in, Mr. Bacon was at her

home and called someone to pick him up. Her home telephone rang, and the Defendant’s

number appeared on her caller ID. She gave the telephone to Mr. Bacon, who stated over

the telephone that he was downstairs. Mrs. McGinnis initially testified that she did not

see the person who picked up Mr. Bacon that day but later testified on recross-

examination that she saw the Defendant pick up Mr. Bacon.

Officer Joshua Hargrave responded to the scene of the burglary. The door to the

apartment appeared to have been forced open, and the dead bolt and the doorknob were

damaged. He spoke to Mrs. McGinnis, who reported that her Smith & Wesson .40

caliber firearm was taken, along with fourteen rounds and a magazine. Officer Dennis

Shepard entered the firearm’s serial number into a database maintained for stolen

firearms. On cross-examination, Officer Hargrave testified that the Defendant’s name

never came up during the course of the investigation into the burglary.

- 14 -

The parties stipulated that the Defendant was incarcerated in Davidson County

between May 28, 2010, and May 20, 2011.

Detective Adam Weeks testified that he met with the Defendant during the early

months of 2012 while the Defendant was incarcerated on a probation violation. The

Defendant provided him with information regarding a homicide that Detective Weeks

was investigating and additional information that Detective Weeks passed along to

Sergeant Paul Smith. The Defendant wrote out a statement, which was entered into

evidence. In the statement, the Defendant identified Michael Mills and “Hardhead” as

the people who committed the homicide that Detective Weeks was investigating. The

Defendant also stated that “Hardhead” and Donell Hancock, who was known as “Ruger,”

committed a robbery that Detective Weeks was investigating. Detective Weeks

recognized “Hardhead” and “Ruger” as gang members and believed the Defendant’s

information would be of interest to Sergeant Smith. The Defendant identified Michael

Mills, Donell Hancock, and Mr. March as those who had committed a shooting. The

Defendant included in the statement, “please let me get back to work and my family.

And I will go to the precinct and give this statement to any officer available right now

with details. I can leave with an officer now at the precinct.” On May 17, 2012,

Detective Weeks and Sergeant Smith met with the Defendant while the Defendant was

incarcerated without bond. Following the meeting, the officers agreed to arrange for the

Defendant’s release pending a resolution of his probation violation warrant so that the

Defendant could assist the officers.

Sergeant Paul Smith testified regarding his meeting with Detective Weeks and the

Defendant. Sergeant Smith stated that the information that he hoped to obtain from the

Defendant was important to him and his colleagues. Following the Defendant’s release

from incarceration, Sergeant Smith met with him, and they reviewed the special operative

agreement that set forth the rules for confidential informants, which the Defendant signed

on June 10, 2012. Sergeant Smith testified regarding the rules to which the Defendant

was required to abide as a confidential informant. As a condition of his release, the

Defendant was required to wear a GPS monitoring device.

The Defendant agreed to provide information regarding the individuals listed in

his statement, including Mr. March, who was also identified as “Ke-Thang.” At some

point, the Defendant told Sergeant Smith that he could provide the location of Mr.

March’s home. The Defendant did not provide an address but provided a description of

an apartment building near a breezeway. Surveillance of that location did not produce

any information. The Defendant also sent Sergeant Smith a photograph of Mr. March

holding an assault rifle but did not provide any further information regarding Mr. March.

- 15 -

Sergeant Smith did not recall the Defendant providing him with Mr. March’s telephone

number or stating that he had been regularly communicating with Mr. March.

Sergeant Smith provided the Defendant with a recorder to record telephone

conversations. The Defendant never provided Sergeant Smith with any recordings of

calls, and Sergeant Smith never received any indication that the Defendant had made any

recordings. The Defendant did not return the recorder. Sergeant Smith later learned that

the Defendant removed his GPS device. Prior to August 9, 2012, the Defendant did not

notify Sergeant Smith that he was going to be in the company of Mr. March.

Ms. Nichole Murphy with the Davidson County Criminal Court Clerk’s Office

testified that the Defendant had two cases pending in 2012. On May 28, 2012, the

Defendant’s bond was reinstated; he was required to have an electronic monitoring ankle

bracelet; and his case was continued until July 6. Following multiple court appearances,

the Defendant’s case was continued to August 9. On August 9, the Defendant did not

appear in court, and a warrant was issued for his arrest.

Mr. Emmanuel Omatu, the Defendant’s probation officer, testified that as a

condition of the Defendant’s release, he was required to have an electronic monitoring

ankle bracelet and a curfew from 9:00 p.m. to 6:00 a.m. On August 6, 2012, Mr. Omatu

received an alert that the ankle bracelet had been tampered with. He and other staff

members attempted to locate the ankle bracelet and the Defendant but were unsuccessful.

Mr. Omatu prepared a probation violation warrant, which was signed by a judge.

Detective Chad Gist with the surveillance and investigative support division of the

Metropolitan Nashville Police Department was accepted by the trial court as an expert in

the field of digital forensic science. He testified regarding the extraction of information

from multiple cell phones by officers in his division. Officers extracted information from

Mr. Ike’s iPhone, Mr. Hall’s ZTE phone, the Defendant’s HTC phone, and a SIM card

from Mr. Beverly’s Motorola phone. The information extracted from the Defendant’s

cell phone included his contacts list, photographs, and text messages. The information

extracted from the SIM card from Mr. Beverly’s cell phone only included his contacts list

and call logs.

Detective Chad Holman testified that on the morning of August 14, 2012, he

received a missing person’s report that had been filed on behalf of Mr. Ike. Detective

Holman stated that upon reviewing the report, it became evident that Mr. Ike’s case could

be related to the incident involving Mr. Beverly that occurred on August 9. Detective

Holman was aware that Mr. Ike’s vehicle had been located and towed away from the

area. He gathered officers to search the area of 33rd Avenue and Felicia Street. While he

and his partner were interviewing Mr. Hall, they learned that Mr. Ike’s body had been

- 16 -

located. Mr. Hall agreed to provide Detective Holman with Mr. Hall’s cell phone.

Detective Holman stated that he failed to submit the latent prints and the DNA swabs

from Mr. Ike’s vehicle for testing due to “oversight.”

After speaking to Detective Hansen, Detective Holman searched in the Sunnyview

area for a vehicle that had been used in Mr. Ike’s homicide, but Detective Holman was

unable to locate the vehicle. Detective Holman obtained a judicial subpoena for a library

key chain card that was attached to a set of Mazda keys found in the Defendant’s

possession. The library card was registered to Ms. Essence Wade. Detective Holman

met Ms. Wade in a parking lot of a Burger King where he photographed a Mazda van.

Detective Holman obtained court orders allowing him to retrieve the cell tower

records relating to the cell phones of the Defendant, Mr. Hall, and Mr. Ike. Cricket did

not comply with the court order to provide the records relating to Mr. Hall’s cell phone.

Detective Holman testified extensively regarding the information extracted from the

Defendant’s cell phone. The Defendant identified himself as “Marley” in various

photographs and text messages sent in the days leading to the offenses. Email addresses

associated with the cell phone were listed as 2-marleyworld60@gmail.com and

Keandre.march@yahoo.com. Contacts listed in the Defendant’s cell phone included

“Ke-Thang,” who was later identified as Mr. March, “Slug,” who was later identified as

Mr. Beverly, “Ruger,” who was later identified as Donell Hancock, and “Goldie,” who

was later identified as Mr. Ike. Mr. Ike’s number in the Defendant’s contact list had

“*67” in front of it, which Detective Holman stated allows a call to be placed without the

caller’s number appearing on the recipient’s caller ID.

The Defendant sent a photograph of himself making a hand signal and wearing a

baseball cap with a stack of cash underneath the cap to various numbers on July 29,

August 8, and August 9. He sent a photograph of himself holding a large amount of cash

to various numbers on July 29 and August 8. He sent a photograph of himself making a

hand signal to various numbers on August 7 and August 8. Many of the photographs

included the caption “Marley.” On August 8 at 6:24 a.m., he sent a photograph of

himself wearing a baseball cap backwards with the caption “Marley.” On August 9 at

4:07 a.m., the Defendant received a photograph of himself and a woman.

Detective Holman also testified regarding text messages that were included in the

extraction report of the Defendant’s cell phone. Detective Holman noted that there was a

gap in time during which no text messages were sent or received between July 8 and July

23, 2012. On July 27, 2012, the Defendant had the following text message exchange

with someone whose number ended in -1085:

- 17 -

Time Sender Message

7:09:28 p.m. Defendant Cuz

7:09:43 p.m. -1085 Wat up

7:10:23 p.m. Defendant Can u c em

7:10:46 p.m. -1085 Sittin by him

7:11:52 p.m. Defendant Let me know soonz he get ready to come out I’m out

here

7:13:15 p.m. -1085 Ok. Ima cum out at 7 40 ima call u

7:14:08 p.m. Defendant Dats Wats up text me soonz he get up tho

7:14:23 p.m. -1085 Yea

7:20:07 p.m. Defendant Fina run some where dont let em leave

7:21:13 p.m. -1085 Ok im bout to leave in a min so dnt be 2 lng

7:21:56 p.m. Defendant Aite

7:46:42 p.m. Defendant Can u get em to walk out wit chu I’m out here

7:47:25 p.m. -1085 Im at the house had to let Mario in

7:48:00 p.m. Defendant Aite

On July 29, the Defendant had the following text message exchange with a

number ending with -8535:

Time Sender Message

3:09:35 p.m. -8535 Were u live

3:10:27 p.m. Defendant Nashville

3:29:39 p.m. -8535 u guna come get me

3:30:57 p.m. Defendant i can’t leave da city I’m on house arrest

3:31:15 p.m. Defendant I gota c n at 9 out on bond

Detective Holman noted that at the time, the Defendant lived in Nashville, was out of jail

on bond, and had an electronic monitor. On July 30, the Defendant sent text messages to

a number before realizing that he had the wrong number. The number to which the

Defendant was sending text messages was one digit different from Mr. Ike’s cell phone

number.

On July 31, the Defendant had the following text message exchange with a

number ending in -3297:

- 18 -

Time Sender Message

9:06:00 p.m. Defendant Wat up fool I’m on minz on that phone n this one still

dead

9:09:58 p.m. -3297 Goldie just rode thrw hea fool Loyal is a must

9:10:57 p.m. Defendant Did he stop or just ride through

9:12:59 -3297 Just riding u knw Cuz be n Da alley behind boys n girl

club Loyal is a must

9:18:40 p.m. Defendant Aite I’m n tonight tho but ima cut dis s**t off my legg

n get da thuggn soon keep me posted on that n***a

Wen u c em cuz I got ya

9:21:26 p.m. -3297 Ok a cuz wid me now im out hea now too cuz real s**t

n them n****s across Da street Loyal is a must

9:30:41 p.m. Defendant I got u watch

On August 3 at 9:06:28 p.m., the Defendant sent a text message to the number ending in -

3297 asking, “U aint seen Goldie.” The Defendant received a text message replying,

“naw.”

On August 5, the Defendant had the following text message exchange with Mr.

March:

Time Sender Message

1:53:39 p.m. Mr. March Wea u at cuz

1:55:29 p.m. Defendant My house waiting on one of these n***** to hit me up

slug said he ain’t came out yet n jojo said Goldie b****

azz ain’t Ansa

1:55:53 p.m. Mr. March Aite

1:56:44 p.m. Defendant Ima hit u up soonz I get word on something

On August 6, the Defendant had the following text message exchange with Mr.

March:

Time Sender Message

9:23:54 a.m. Defendant Dis my new numbka

9:24:37 a.m. Mr. March Wen u coming to get me

9:25:31 a.m. Defendant Soonz I get out these clothes

9:25:43 a.m. Mr. March Aite

The Defendant had multiple text message exchanges with others in which he identified

himself as “Marley.” Beginning on August 6, the Defendant had multiple text message

- 19 -

exchanges with a number ending in -1711 that continued throughout the next few days

during which the Defendant referred to the person as “baby.” Later in the evening, the

Defendant had the following text message exchange:

Time Sender Message

6:31:12 p.m. Mr. March Have u tryed to call me cuz my phone was dead

6:32:03 p.m. Defendant Naw not yet she on her way now tho

6:32:12 p.m. Mr. March Aite

….

7:32:57 p.m. Defendant to - U ain’t seen dat n**** again today

3297

7:35:25 p.m. Mr. March Wea u at cuz

7:36:42 p.m. -3297 Nt wen I left

During the morning of August 7, when the Defendant received a text message

from -1711 asking what he was doing, the Defendant replied, “Tryna c is dis n****

home.” At 10:50 a.m., the Defendant sent a text message to Mr. March asking, “U get

it.” Mr. March replied with Mr. Hall’s cell phone number. The Defendant immediately

sent a text message to Mr. Hall stating, “Wats up lil cuz dis Marley.” Later in the

afternoon, the Defendant sent Mr. Ike’s cell phone number to Mr. Hall.

At 5:14 p.m., Mr. March sent the Defendant a text message stating, “I’m waiting

on gal.” Around that same time, the Defendant exchanged a series of text messages with

“O’Ball,” including a text message in which the Defendant stated, “Cuz might still c out

but i really ain’t tryna let key thang n on dis one just uz.” The Defendant continued to

exchange text messages with a cell phone number ending in -1711 throughout the

evening and night. At 8:29 p.m., Mr. March sent the Defendant a text message stating,

“Come get me cuz I cant stand to be in this house.” Beginning at 10:05 p.m., the

Defendant and Mr. March exchanged a series of text messages during which Mr. March

stated, “im waitin u.” At 10:23 p.m., the Defendant sent Mr. March a text message

stating, “I’m on my way.” Mr. March responded, “Cuz im finna meet u in the projects.”

On the morning of August 8, the Defendant exchanged text messages with

multiple cell phone numbers during which he identified himself as “Marley.” He sent a

photograph of himself holding a large amount of money to one of the cell phone numbers

and sent another text message stating, “Yea I’m … on da run.” Later that morning, he

exchanged text messages with a number ending in -4906 and referred to the person with

that cell phone number as his wife. The Defendant exchanged text messages with his

wife and the number ending in -1711 throughout the day. During the evening, the

Defendant had the following text message exchange with his wife:

- 20 -

Time Sender Message

6:10:32 p.m. Defendant I’m not mad at u or anything I just can’t let them

catch me there

6:14:53 p.m. Wife I kno its cool i understand. im sure aftr u dnt sho for

court 2 mar they gne b over there so dnt evn ride by

cuz them bond ppl coming

6:17:42 p.m. Defendant I kno ima have u hold some money tomorrow round 4

for me

6:24:50 p.m. Wife Ok b carful cuz they gne b hot on ya. me n u need to

lay low cuz they gne watc n me2

At 7:24 p.m., the Defendant sent a text message to Mr. Beverly stating, “West

craccin.” The Defendant continued to exchange text messages with his wife and number

-1711 throughout the evening and the following day. During one exchange on August 9,

his wife sent him a photograph of him and a woman. Beginning at 6:05 p.m., the

Defendant and his wife exchanged text messages during which they argued about another

woman. At 6:11 p.m, the Defendant sent his wife a text message stating, “I’m not wit no

b***h but my 40.”

After sending the text message to his wife at 6:11 p.m., the Defendant did not send

or receive any text message until 6:23 p.m., when Mr. Hall sent him a text message

stating, “Throw your phone.” Detective Holman testified that based on his investigation

into the time frame of the offenses, it appeared that Mr. Hall sent this text message after

Mr. Ike was shot.

On cross-examination, Detective Holman testified that the text messages were not

extracted from the cell phones of Mr. March or Mr. Beverly. During the extraction of

Mr. Hall’s cell phone, it was discovered that most of the data had been erased. Detective

Holman acknowledged that the Defendant made a number of calls between 6:16 p.m. and

6:23 p.m. on August 9. Detective Holman stated that the Mazda that he viewed was light

green and was not silver, was not a Toyota, and was not a truck or a SUV.

Detective Holman testified that on August 9 at 6:05 p.m., Mr. Beverly’s cell phone

communicated with a cell tower located off Charlotte Avenue in West Nashville near the

scene of Mr. Ike’s shooting. Mr. Beverly had not informed officers that he was in West

Nashville when questioned regarding his whereabouts before meeting the Defendant at

Sunnyview Court. When Detective Holman asked Mr. Beverly about being in West

Nashville, Mr. Beverly’s demeanor changed; he became defensive; and he kept stating

that he was not involved in Mr. Ike’s death.

- 21 -

Detective Joseph Chad High with the surveillance and investigative support unit of

the Metropolitan Nashville Police Department was accepted by the trial court as an expert

in the field of call detail and record analysis. He testified that a cell phone is essentially a

two-way radio that receives and transmits radio signals through a cell tower. He

explained that the cellular network is constantly scanning for a handset so that any calls

can be routed to the handset correctly. When making or receiving a call, the handset

utilizes the cell tower with the best quality signal, which typically is the cell tower closest

to the handset although this is not always the case. He noted that the usage of a cell

tower at a particular time of day and any structures between the handset and cell tower

that prevent a direct line of sight may affect the quality of the signal so that the handset

may use a cell tower located further away. Detective High acknowledged that while he

could not definitively state that a handset communicated with the closest tower, he

plotted a series of various calls to establish a course of direction. He stated that

information from call detail records is used to corroborate other information obtained in

an investigation. He also offered testimony regarding how cell phones and networks

operate once a call is made or received.

Detective High testified that when he received call detail records, they generally

included information regarding the outgoing and incoming calls, the duration of the call,

and the towers with which the handset communicated during the calls. The wireless

companies also send a tower list to allow Detective High to determine the location of the

cell towers with which the handset communicated. He stated that the records do not

indicate the location of the handset but only the sector of the cell tower with which the

handset communicated. He explained that most cell towers have three sectors that

encompass a 360-degree circle around the tower and that the tower list will include the

beam or direction that each sector is facing. He stated that a cell tower will cover a range

of three to fifteen miles in a rural area and a range of one to five miles in an urban area.

Detective High reviewed the call detail records and cell tower information related

to cell phones belonging to the Defendant, Mr. Ike, and Mr. Beverly. Both the Defendant

and Mr. Ike had Sprint cell phones, and Mr. Beverly had a T-Mobile and a Nextel cell

phone. He mapped the data from the call detail records and the cell tower data for the

time period of August 9 from 1:30 p.m. to 8:00 p.m. He noted that, generally, location

data is only available for calls and not for text messages.

At 1:31 p.m., on August 9, the Defendant called Mr. March. From 2:25 p.m. to

5:37 p.m., the Defendant made and received multiple calls during which his cell phone

communicated with cell towers located in the Hermitage area. The Defendant received

calls from Mr. Hall at 4:08 p.m. and 4:09 p.m., and the Defendant called Mr. Hall at 5:26

p.m. Mr. Ike called Mr. Hall at 4:39:23, 4:39:53, and 4:40 p.m., and each call did not

- 22 -

exceed twenty-six seconds. At 5:38 p.m., Mr. Hall called Mr. Ike, and the call lasted

sixty-one seconds.

At 5:45 p.m., the Defendant called Mr. Hall, and the call lasted two minutes and

seven seconds. During the call, the Defendant’s cell phone communicated with multiple

towers, showing that he was traveling east to west near downtown Nashville. At 5:48

p.m., the Defendant called a number ending in -1711, and his cell phone communicated

with towers showing that he was traveling toward 406 33rd Avenue North where Mr. Ike

was shot. At 5:55 p.m., the Defendant received a call during which his cell phone

communicated with a tower that was within the cell coverage area of the scene of the

shooting. At 5:58 p.m., the Defendant called Mr. Hall, and the call lasted forty-four

seconds. At 6:04 p.m., the Defendant received a call from Mr. Hall that lasted twenty-

three seconds. Both calls communicated with the same tower in the cell coverage area of

the shooting scene. At 6:12 p.m., Mr. Ike called Mr. Hall during which Mr. Ike’s cell

phone communicated with the same tower with which the Defendant’s cell phone had

been communicating. This was Mr. Ike’s final outgoing call.

Four minutes later, at 6:16 p.m., the Defendant called Mr. Beverly, and the call

lasted twenty-seven seconds. The Defendant’s cell phone communicated with a cell

tower showing that he was leaving the coverage area where the shooting occurred, and

Mr. Beverly’s cell phone communicated with a Nextel tower near the Defendant’s

location. The Defendant called Mr. Beverly again at 6:17 p.m., and the call lasted thirty-

four seconds. At 6:21 p.m., the Defendant called Mr. Hall while communicating with a

cell tower in north Nashville. At 6:23:51 p.m., the Defendant received a text message

from Mr. Hall stating, “Throw your phone,” and at 6:24:08 p.m., the Defendant called

Mr. Hall.

At 6:30 p.m., the Defendant called Mr. Beverly, and the call lasted forty seconds.

During the call, both of their cell phones communicated with towers near Sunnyview

Court. At 6:31 and 6:34 p.m., the Defendant made and received calls during which his

cell phone communicated with a cell tower whose coverage encompassed Sunnyview

Court. At 6:49:06, 6:49:29, and 6:49:49 p.m., Mr. Beverly called Mr. Wilson during

which Mr. Beverly’s cell phone communicated with towers near Sunnyview Court. Mr.

Beverly received calls from Mr. Wilson at 6:49:56 p.m. lasting fifty-three seconds, at

6:51 p.m. lasting twenty-six seconds, and 6:53 p.m. lasting three minutes and twenty-six

seconds. During each of these calls, Mr. Beverly’s cell phone communicated with towers

located near Sunnyview Court. At 7:32 p.m., Mr. Beverly received a call that lasted

seven seconds during which his cell phone communicated with a tower in the Gallatin

Pike area near Hendersonville.

- 23 -

On cross-examination, Detective High agreed that the location of a handset can

only be determined in terms of the range of the service of the cell tower and that he could

not determine a cell tower’s range based upon the call detail records. He also agreed that

cell phones do not always communicate with the closest cell tower but communicate with

the most efficient cell tower. Factors that determine the most efficient cell tower include

the line of sight, the terrain, the time of day and year, call volume, and the location of any

large bodies of water. Detective High did not have access to the algorithms that

determine the most efficient tower, and he agreed that it was impossible to determine

how often a cell phone communicates with the closest tower as opposed to a tower

located a further distance away.

At the close of the proof, the jury convicted the Defendant of first degree

premeditated murder, unlawful possession of a handgun, three counts of especially

aggravated kidnapping, attempted first degree murder, especially aggravated robbery,

employment of a firearm during the commission of a dangerous felony, theft of property

valued less than $500, and failure to appear. As agreed by the parties, the trial court

examined the Defendant’s criminal history and determined that he had prior felony

convictions necessary to support the firearm convictions.

Following a sentencing hearing, the trial court imposed sentences of life

imprisonment for first degree murder, two years for unlawful possession of a handgun by

a convicted felon, twenty-one years each for especially aggravated kidnapping resulting

in serious bodily injury and especially aggravated kidnapping for ransom, nineteen years

for especially aggravated kidnapping accomplished with a deadly weapon, twenty years

for attempted first degree murder, ten years each for aggravated robbery and employment

of a firearm during the commission of a dangerous felony while having prior felony

convictions, eleven months and twenty nine days for theft, and two years for failure to

appear. The trial court ordered that the Defendant’s twenty-one-year sentence for

especially aggravated kidnapping resulting in serious bodily injury and his ten-year

sentence for employment of a firearm during the commission of a dangerous felony run

consecutively to each other and to his life sentence for first degree murder. The trial

court ordered that the remaining sentences run concurrently, for an effective sentence of

life imprisonment plus thirty-one years. The judgments were later amended to reflect that

the especially aggravated kidnapping convictions were merged. The Defendant filed a

motion for new trial, which the trial court denied. This appeal followed.

ANALYSIS

On appeal, the Defendant challenges (1) the sufficiency of the evidence of his

convictions for first degree premeditated murder and theft, (2) the trial court’s denial of

his motion to sever the offenses for trial, (3) the admission of bad act evidence pursuant

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to Tennessee Rule of Evidence 404(b), (4) the admission of evidence that the murder

victim was a police informant, (5) the trial court’s denial of his motion to suppress his

cell phone records obtained pursuant to a judicial subpoena, (6) the trial court’s denial of

his motion to exclude cell tower evidence as unreliable expert proof, (7) the trial court’s

denial of his motion to suppress evidence obtained from the search of his cell phone, (8)

the admission of text messages from the Defendant’s cell phone, (9) the admission of

photographs from the Defendant’s cell phone, and (10) the trial court’s imposition of

partial consecutive sentences.

I. Sufficiency

The Defendant contends that the evidence is insufficient to support his convictions

for first degree premediated murder and theft. When a defendant challenges the

sufficiency of the evidence, the relevant question for this court is “whether, after viewing

the evidence in the light most favorable to the State, 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). On appeal, “‘the State is entitled to the strongest

legitimate view of the evidence and to all reasonable and legitimate inferences that may

be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003) (quoting State

v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore, this court will not re-weigh or

reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990). Instead, it is the trier of fact, not this court, who resolves any questions

concerning “the credibility of witnesses, the weight and value to be given the evidence, as

well as all factual issues raised by the evidence.” 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. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is

then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to

support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court

applies the same standard of review regardless of whether the conviction was predicated

on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.

2011). “Circumstantial evidence alone is sufficient to support a conviction, and the

circumstantial evidence need not exclude every reasonable hypothesis except that of

guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

A. First Degree Premeditated Murder

The Defendant contends that the evidence is insufficient to establish his identity as

the perpetrator, to support a theory of criminal responsibility, and to establish

premeditation. The State responds that the evidence is sufficient to support the

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Defendant’s conviction of first degree premeditated murder of Mr. Ike. We agree with

the State.

First degree murder is the premeditated and intentional killing of another. T.C.A.

§ 39-13-202(a)(1). A premeditated act is one “done after the exercise of reflection and

judgment.” T.C.A. § 39-13-202(d). Premeditation requires a finding that “the intent to

kill must have been formed prior to the act itself. It is not necessary that the purpose to

kill preexist in the mind of the accused for any definite period of time.” Id.

1. Identity and Criminal Responsibility

Identity is an essential element of any crime. State v. Bell, 512 S.W.3d 167, 198

(Tenn. 2015). Identity may be established with circumstantial evidence alone. State v.

Rice, 184 S.W.3d 646, 662 (Tenn. 2006). “[T]he evidence need not exclude every other

reasonable hypothesis except that of the defendant’s guilt, provided the defendant’s guilt

is established beyond a reasonable doubt.” Bell, 512 S.W.3d at 198 (citing Dorantes,

331 S.W.3d at 380-81). The jury determines the weight to be given, and inferences to be

drawn from, circumstantial evidence. State v. Gibson, 506 S.W.3d 450, 458 (Tenn. 2016)

(citing Dorantes, 331 S.W.3d 379). In resolving questions of fact, such as the identity of

the perpetrator, “‘the jury bears the responsibility of evaluating the conflicting evidence

and accrediting the testimony of the most plausible witnesses.’” State v. Pope, 427

S.W.3d 363, 369 (Tenn. 2013) (quoting State v. Hornsby, 858 S.W.2d 892, 897 (Tenn.

1993)).

At trial, the State relied, in part, upon a theory of criminal responsibility for the

conduct of another, and the trial court instructed the jury on criminal responsibility. “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.” T.C.A. § 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[.]” T.C.A. § 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

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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 (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).

The evidence presented at trial established that the Defendant had been searching

for Mr. Ike in the days leading up to Mr. Ike’s death. The Defendant utilized others to

help him in determining Mr. Ike’s whereabouts. During that same time period, the

Defendant sent a text message in which he expressed his plans to remove his electronic

monitoring device and “get da thuggn soon.” He removed his GPS monitoring device

and did not return to his home in an effort to avoid detection. Two days before the

shooting, Mr. March sent Mr. Hall’s cell phone number to the Defendant via text

message, and the Defendant later sent Mr. Ike’s cell phone number to Mr. Hall, who was

with Mr. Ike at the time of the shooting. Cell phone records showed multiple calls

between Mr. Hall and the Defendant just prior to and shortly after the shooting, and the

cell phones of the Defendant and Mr. Ike were communicating with the same cell phone

tower that covered the area in which the shooting occurred.

Ms. Cartwright saw Mr. Ike’s car drive up to Mr. Hall’s home and park on the

street. Mr. Hall exited his home and entered the car on the passenger side. Ms.

Cartwright saw a man running down the street and toward Mr. Ike’s car while holding a

gun. She heard gunshots shortly thereafter and saw a silver SUV speeding away.

Approximately eleven minutes after Mr. Ike made his last outgoing call utilizing the cell

tower that covered the area in which the shooting occurred, Mr. Hall sent the Defendant a

text message instructing him to “Throw your phone,” and the Defendant responded by

calling Mr. Hall.

The murder weapon, a Smith & Wesson .40 caliber pistol that was black and

silver, was found in Mr. Beverly’s car after the Defendant and Mr. March abducted him

shortly after the shooting. Mr. Beverly identified the Defendant as possessing the pistol

when Mr. Beverly was initially abducted. Photographs of the Defendant holding a

similar pistol were on his cell phone, and he sent a text message to his wife one minute

before Mr. Ike made his last call to Mr. Hall stating, “wit no b***h but my 40.” The jury

could infer from this evidence that the Defendant was in possession of the murder

weapon both before and after the shooting and, thus, participated in the shooting.

Based upon the cell phone records, the Defendant pointed the gun that was used to

kill Mr. Ike at Mr. Beverly in another area of town sometime between 6:30 p.m. when he

last called Mr. Beverly and 6:49 p.m. when calls began to be exchanged between Mr.

Beverly’s cell phone and Mr. Wilson’s cell phone regarding the Defendant’s demand for

ransom. The Defendant also boasted to Mr. Beverly that he had committed other murders

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earlier in the day. We conclude that this evidence, when viewed in a light most favorable

to the State, is sufficient to establish the Defendant’s identity as a perpetrator. Even if the

Defendant was not the shooter, the evidence, when viewed in a light most favorable to

the State, establishes that he solicited, directed, aided, or attempted to aid another to

commit the offense with the intent to promote or assist in the commission of the offense.

2. Premeditation

Premeditation is a question of fact for the jury’s determination. State v. Davidson,

121 S.W.3d 600, 614 (Tenn. 2003). It may be established by any evidence which could

lead a rational trier of fact to infer that premeditation was established by the proof as

required by statute. Id. at 615. Courts frequently look to the circumstances surrounding a

killing to discern the presence of evidence sufficient to support a finding of

premeditation. State v. Larkin, 443 S.W.3d 751, 815 (Tenn. Crim. App. 2013).

Factors tending to support the existence of premeditation include: “the use of a

deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations

by the defendant of an intent to kill; evidence of procurement of a weapon; and

preparations before the killing for concealment of the crime, and calmness immediately

after the killing.” Bland, 958 S.W.2d at 660. The factors listed in Bland are not

exhaustive, however. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). The nature of

the killing or evidence establishing a motive for the killing may also support a conclusion

that the crime was premeditated. Id. Repeated blows, although not alone sufficient to

establish premeditation, may be a relevant factor in determining the existence of

premeditation. Id. Mutilation of the body may show that a killing was not rash or

impulsive. Davidson, 121 S.W.3d at 616. Lack of provocation by the victim, failure to

render aid, and destruction or secretion of evidence may also support an inference of

premeditation. Larkin, 443 S.W.3d at 815-16 (citing State v. Thacker, 164 S.W.3d 208,

222 (Tenn. 2005); State v. Lewis, 36 S.W.3d 88, 96 (Tenn. Crim. App. 2000)). “Under

Bland, shooting a retreating victim alone provides circumstantial evidence of

premeditation.” State v. Dickson, 413 S.W.3d 735, 746 (Tenn. 2013).

The evidence presented at trial established that the Defendant had been searching

for Mr. Ike, or “Goldie,” in the days leading up to the shooting and had others keeping

him apprised of Mr. Ike’s whereabouts. Through a text message exchange regarding Mr.

Ike’s location and the Defendant’s request that he be kept apprised of Mr. Ike’s location,

the Defendant announced his intentions to remove his electronic monitoring device and

“get da thuggin soon.” To avoid detection, the Defendant removed his electronic

monitoring device a few days before the shooting, and text messages between him and

his wife established that the Defendant had not been staying at his home. The Defendant

planned in advance to miss his scheduled court appearance on the day of the shooting, as

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illustrated by a text message exchange between him and his wife on the day before the

shooting. The jury could have inferred from such evidence that the Defendant was

planning the shooting and that his actions were aimed at facilitating the crime and

avoiding detection.

Prior to the shooting, the Defendant obtained Mr. Hall’s cell phone number and

sent Mr. Ike’s cell phone number to Mr. Hall. The Defendant and Mr. Hall exchanged

calls both before and after the shooting, and the Defendant’s cell phone utilized a cell

tower located within the area of the shooting when the shooting occurred. The Defendant

had possession of the murder weapon, a Smith & Wesson .40 caliber pistol, shortly after

the shooting, as established by Mr. Beverly’s testimony about the abduction and the

scientific analysis of the weapon recovered from Mr. Beverly’s car. Photographs

extracted from the Defendant’s cell phone show the Defendant in possession of a similar

gun sometime before the shooting occurred. The Defendant sent a text message to his

wife in the early evening prior to the shooting in which he stated that he was “wit no

b***h but my 40,” which the jury could infer was a reference to the Smith & Wesson .40

caliber pistol. The jury could infer from such evidence that the Defendant planned with

Mr. Hall to lure Mr. Ike to the area and that the Defendant participated in the shooting.

The victim sustained multiple gunshot wounds and was unarmed when he was

found. There was no evidence that items had been taken from the victim, and he was

found holding money in his hand. Following the shooting, Mr. Hall sent the Defendant a

text message instructing the Defendant to dispose of his cell phone. The Defendant

demonstrated calmness immediately after the shooting as he then contacted Mr. Beverly

prior to abducting him. During the abduction of Mr. Beverly, the Defendant boasted

about committing other murders that day. We conclude that this evidence, when viewed

in a light most favorable to the State, was sufficient to establish premeditation.

B. Theft

The Defendant was convicted of theft based upon his possession of the stolen

Smith & Wesson .40 caliber pistol. “A person commits theft of property if, with intent to

deprive the owner of property, the person knowingly obtains or exercises control over the

property without the owner’s effective consent.” T.C.A. § 39-14-103. The State must

prove that a defendant: (1) knowingly obtained or exercised control over property; (2) did

not have the owner’s effective consent; and (3) intended to deprive the owner of the

property. State v. Amanns, 2 S.W.3d 241, 244-45 (Tenn. Crim. App. 1999).

The Defendant maintains that the State failed to establish that he knowingly

obtained or exercised control over the pistol. The State acknowledges that the evidence

did not demonstrate that the Defendant took the pistol from Mrs. McGinnis’s home.

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Instead, the State argues that the Defendant exercised control over the pistol. We note

that in closing arguments, the State did not argue that the Defendant took the pistol from

Mrs. McGinnis’s apartment but, rather, argued that the Defendant was exercising control

over the pistol on the day in which the other offenses occurred. In light of the State’s

theory of the case, we question why the State elicited testimony from Mrs. McGinnis on

redirect examination that a few days prior to the burglary, someone called her nephew,

who she had told police officers committed the burglary, from the Defendant’s telephone

number and that, thereafter, she saw the Defendant come to her apartment complex to

pick up her nephew. Immediately after Mrs. McGinnis testified, the State entered into a

stipulation with the defense that the Defendant was incarcerated when the burglary

occurred and had been incarcerated for almost one year at the time of the burglary. Thus,

it appears that the State elicited testimony that it knew to be untrue in light of its agreed

upon stipulation. Nevertheless, the Defendant did not raise the issue regarding the

admission of such testimony on appeal, and as we discuss below, we conclude that the

evidence is insufficient to support the theft conviction.

The evidence demonstrated that the Defendant had possession of the pistol shortly

after the shooting as demonstrated by Mr. Beverly’s testimony during which he described

the gun that the Defendant pointed at him while abducting him. Photographs extracted

from the Defendant’s cell phone show the Defendant in possession of a similar gun

sometime before the shooting occurred. The Defendant sent a text message to his wife in

the early evening prior to the shooting in which he stated that he was “wit no b***h but

my 40,” which the jury could infer was a reference to the Smith & Wesson .40 caliber

pistol. We conclude that this evidence, when viewed in a light most favorable to the

State, is sufficient to establish that the Defendant knowingly exercised control over the

pistol and did not have Mrs. McGinnis’s effective consent to do so.

The Defendant maintains that the evidence is insufficient to establish that he knew

that the pistol was stolen and that, as a result, he intended to deprive Mrs. McGinnis of

the pistol. A defendant’s possession of recently stolen property, unless satisfactorily

explained, creates a permissible inference that the defendant had knowledge that the

property had been stolen. See State v. James, 315 S.W.3d 440, 450-51 (Tenn. 2010).

“Recently” is a relative term which does not have a fixed meaning and is dependent upon

the nature of the property and the facts and circumstances of the case. State v. Anderson,

738 S.W.2d 200, 202 (Tenn. Crim. App. 1987). The longer the period of time since the

theft, the more doubtful the inference. Id. The jury, as the trier of fact, must determine

whether the inference is warranted. Barnes v. United States, 412 U.S. 837, 845, n.9

(1973). The State has the burden of establishing that the defendant knew that the

property was stolen; the burden never shifts to the defendant. Id.

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The purpose of the recency requirement is to “insure that the party found in

possession of the stolen property is aware of the stolen nature of the goods in his

possession.” Anderson, 738 S.W.2d at 202. The proper test is “whether the time lapse

between the theft and the accused’s possession of the property is sufficiently short, given

the circumstances of the case, to preclude the possibility of a transfer of the stolen

property from the thief to an innocent party.” Id. While the amount of time that elapsed

between the theft and the discovery of the property is an important factor in determining

whether the property was “recently” stolen, other factors include “the characteristics of

the stolen property, such as salability and portability, both of which affect the ease with

which the property can be transferred by a thief to an innocent party.” Id.

The burglary during which the pistol was taken occurred approximately sixteen

months before the Defendant was found in possession of the pistol. At the time of the

burglary in April 2011, the Defendant had been incarcerated since May 2010, and he was

not released until approximately one month after the burglary. The only evidence of any

connection between Mrs. McGinnis’s nephew, who was alleged to have stolen the pistol,

and the Defendant was the testimony of Mrs. McGinnis, which was later established to be

mistaken based upon the parties’ stipulation. The State presented no evidence regarding

the circumstances under which the Defendant obtained the pistol. The weapon was

portable personal property which could easily be transferred from one person to another

in the sixteen months which passed between its theft and the Defendant’s obtaining

possession of it. The only evidence that the State presented to support its claim that the

Defendant was aware that the pistol was stolen was that the serial number had been

scratched through. We conclude that this evidence alone is insufficient to establish that

the Defendant knew that the pistol was stolen. Accordingly, the evidence is insufficient

to support the Defendant’s conviction for theft, and, therefore, we reverse the conviction.

II. Severance

The Defendant maintains that the trial court erred in denying his motion to sever

the offenses. He maintains that trial court’s denial of his motion was improper under

Tennessee Rule of Criminal Procedure 14(b)(1) because the offenses involving Mr. Ike,

the offenses involving Mr. Beverly, the theft charge, and the charge of failure to appear

did not constitute a common scheme or plan and that the evidence of each “criminal

episode” would not have been admissible at trial involving any of the other criminal

episodes.

A. Pretrial Hearings

Prior to trial, the Defendant filed a motion seeking to sever his trial from Mr.

Hall’s trial and to sever the counts in the indictment. The Defendant requested that the

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counts be severed into four separate trials: (1) the charge of first degree premeditated

murder of Mr. Ike; (2) the two firearm charges and the charges in which Mr. Beverly was

the victim; (3) the theft charge; and (4) the failure to appear charge. The Defendant

relied upon Tennessee Rule of Criminal Procedure 14(b)(1) and argued that the offenses

were not part of a common scheme or plan, that the majority of the evidence would not

be admissible in separate trials, and that the probative value of the evidence is

outweighed by the danger of unfair prejudice. The State filed a response and an amended

response in which it argued that the counts were mandatorily joined pursuant to

Tennessee Rule of Criminal Procedure 8(a) because the counts arose from the same

criminal episode. The State maintained that even if the counts are not subject to

mandatory joinder, they are subject to permissive joinder pursuant to Rule 14 because

they are part of a common scheme or plan.

The State included a summary of the evidence in its response, which the parties

agreed to allow the trial court to consider in addressing the Defendant’s motion.

According to the State’s summary, on Thursday, August 9, 2012, the Defendant was

scheduled to appear in criminal court on a pending felony charge and a pending probation

revocation proceeding. The Defendant had been released on bond because he had agreed

to cooperate with officers in an ongoing investigation into gang-related activities. He

wrote a note at his proffer naming gang members about whom he could gather

information. He was required to wear an electronic monitoring device as a condition of

release, and he removed the device on August 7. He failed to appear in court on August

9. Text messages from the Defendant demonstrate his intent not to appear in court, to

remove his electronic monitoring device, and to elude his bondsmen and the police. The

text messages also demonstrate that the Defendant’s removal of the device and his failure

to appear in court were related to his hunt for Mr. Ike.

The Defendant was searching for Mr. Ike in late July, and text messages extracted

from the Defendant’s cell phone revealed that the Defendant had been asking around for

“Goldie,” who was Mr. Ike. A case where Mr. Ike had acted as a confidential informant

was on the general session docket in July. The Defendant’s cell phone records and

information obtained from Mr. Hall during an interview revealed that the Defendant

conspired with Mr. Hall to have Mr. Hall lure Mr. Ike to Mr. Hall’s house. On August 7,

the Defendant sent Mr. Ike’s cell phone number via text message to Mr. Hall. Cell phone

records reveal six calls between Mr. Hall and the Defendant between 4:09 p.m. and 6:04

p.m. on August 9. Text messages demonstrate that at 6:11 p.m., the Defendant was in

possession of the murder weapon. At 6:21 p.m., the Defendant called Mr. Hall; at 6:23

p.m., Mr. Hall sent the Defendant a text message instructing him to “[t]hrow your

phone”; and the Defendant called Mr. Hall again at 6:24 p.m.

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On the evening of August 9, Mr. Ike parked his car in front of Mr. Hall’s home,

and Mr. Hall got in the front passenger seat of Mr. Ike’s car. Mr. Hall maintained in an

interview that Mr. Ike came to sell him marijuana. Mr. Hall claimed that an African-

American man wearing a blue shirt, blue latex gloves, a black bandana, and sunglasses

approached on the passenger side, pointed a gun at them through the window, and

instructed them not to move. Mr. Hall stated that the man took a gun from Mr. Ike’s lap

and instructed Mr. Hall to go back inside his house. Mr. Hall said he heard four or five

gunshots as he was entering his house. The State asserted that Mr. Hall was not truthful.

According to the State’s summary of proof, Ms. Cartwright saw Mr. Ike’s car park

and Mr. Hall exit his home, enter Mr. Ike’s car, and then exit Mr. Ike’s car after a few

minutes. An African-American man holding a silver gun and wearing a white shirt, khaki

pants, and glasses ran from Felicia Avenue to Mr. Ike’s car. Mr. Hall was calmly

walking toward his house and entered through the front door. Ms. Cartwright saw Mr.

Ike being assaulted, went inside, and heard several gunshots. She then saw an SUV drive

down the street at a high rate of speed toward Charlotte Avenue. Mr. Rod Fuller called

the police to report “six gunshots fired at a male black, white shirt, blue Impala TN tag

G2390F.” Police officers who responded did not locate anything at the scene because

Mr. Ike had run into the adjacent wooded area where he died from multiple gunshot

wounds. Mr. Ike’s body was located in the wooded area on August 14.

On August 9, at approximately 7:05 p.m., officers were dispatched to Gallatin Pike

where a car had wrecked in a ditch near Home Depot. Mr. Beverly had been shot, and

Mr. March was dead from gunshot wounds inside the car. Witnesses at Pep Boys saw the

Defendant get out of the car and run behind Home Depot. He was found hiding in a

dumpster where he also had discarded his cell phone.

Mr. Beverly told the police that while he was in his car talking to Mr. Justin

Parson at Sunnyview Court, two African-American men approached him with guns and

kidnapped him. Mr. Parson confirmed the events. The Defendant drove; Mr. Beverly

was in the front passenger seat; and Mr. March was in the back seat. The Defendant told

Mr. Beverly that he was going to die because he “snitched” on the Defendant’s cousin.

Mr. Beverly offered the Defendant $30,000 to let him go. Mr. Beverly called his brother,

Mr. Wilson, and stated that he had been kidnapped. The Defendant instructed Mr.

Wilson to meet them at a bowling alley with $30,000 or Mr. Beverly would be killed.

The Defendant told Mr. Beverly to watch television because he had been on a killing

spree. Mr. March was holding both guns, and Mr. Beverly decided to grab the guns.

During a struggle, Mr. Beverly was shot and pretended to be seriously injured. Mr.

Beverly decided to attempt to grab the guns again, and during a struggle, he bit off part of

Mr. March’s ear. The Defendant and Mr. March were shot, and the car wrecked. After

the accident, witnesses saw muzzle flashes and the Defendant exit the car and run.

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A Smith & Wesson .40 caliber pistol and a .45 caliber black and brown pistol were

recovered from the scene. An examination of the firearms revealed that the .40 caliber

pistol was used to kill Mr. Ike. The Defendant’s cell phone had multiple photographs of

him holding a similar pistol. A trace of the pistol revealed that it had been taken during

the burglary of Mrs. McGinnis’s home in 2011. Mrs. McGinnis stated that the Defendant

had been to her home days prior to the burglary. The Defendant knowingly possessed the

stolen pistol on the day that he killed Mr. Ike and kidnapped Mr. Beverly.

During an evidentiary hearing on the Defendant’s motion on December 4, 2014,

the Defendant presented the testimony of Detective Holman, who was present when Mr.

Ike’s body was discovered in the area of 33rd Avenue and Felicia Street in west

Nashville. The incidents involving Mr. Beverly occurred around Sunnyview Court in

north Nashville and ended in Madison. Detective Holman agreed that 33rd Avenue

North and Sunnyview Court are approximately six and one-half miles apart, which is a

ten to fifteen-minute drive or longer during rush hour. He also agreed that Gallatin Pike

where Mr. Beverly’s car was found was approximately fourteen miles from Sunnyview

Court.

Detective Holman testified that while investigating Mr. Ike’s death, he spoke to

Mr. Hall, who stated that Mr. Ike came to his home to sell him marijuana. Mr. Hall

stated that during the transaction, two African American men approached the car, ordered

Mr. Hall out of the vehicle, and instructed him to return to his home. Detective Holman

agreed that he had received information from Mr. Kelvin Jordan that the incident had

involved a drug transaction. Detective Holman stated that his investigation led him to

believe that Mr. Hall was involved in getting Mr. Ike to his home so that the Defendant

could locate Mr. Ike, and Detective Holman noted text messages from the Defendant

stating that he was searching for Mr. Ike. Mr. Hall changed his story several times.

Detective Holman testified that although his investigation indicated that Mr. Ike

was shot on August 9, 2012, Mr. Ike’s body was not located until August 14. The

detective was able to narrow the time period during which the shooting occurred based

upon text messages, including a text message from Mr. Hall to the Defendant on August

9 at 6:23 p.m., instructing the Defendant to “throw” his cell phone. Mr. Rod Fuller, Mr.

Hall’s brother, stated that he received a call from his sister, Ms. Janita Hall, about shots

being fired. Ms. Hall allowed Detective Holman to look at her cell phone, and he

determined that Ms. Hall called Mr. Fuller at 6:52 p.m. Ms. Hall told Detective Holman

that she did not call Mr. Fuller until a “good quantity of time” after the shooting. Mr.

Fuller did not call 9-1-1 until he returned home shortly after 7:00 p.m.

When questioned regarding any information suggesting why Mr. Ike was targeted,

Detective Holman recalled “some information that was developed considering his

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involvement with being a police informant.” Detective Holman did not recall having any

information establishing that either the Defendant or Mr. March knew that Mr. Ike was an

informant. Detective Holman acknowledged that Mr. Ike had not provided information

to the police about the Defendant or Mr. March. Detective Holman stated that Mr.

Beverly told officers that he was told that he was targeted because he had acted as an

informant and had provided law enforcement with information regarding the Defendant’s

cousin. Detective Holman acknowledged that while the perpetrators requested a ransom

during Mr. Beverly’s abduction, there was no indication of any ransom or request for

money from Mr. Ike. Although Mr. Ike had been robbed previously, there was no

evidence of a robbery around the time of his murder, as he was found with money in his

hand and his cell phone near him.

Although Mr. Hall and the Defendant exchanged text messages regarding Mr. Ike,

Detective Holman was not aware of any text messages between Mr. Hall and the

Defendant mentioning Mr. Beverly or of any text messages between Mr. Ike and Mr.

Beverly. Detective Holman did not recall any text messages stating that people were

being targeted because they were cooperating with the State.

Detective Holman acknowledged that officers located Mr. Martindale, one of the

individuals with whom the Defendant had exchanged text messages stating that the

Defendant was searching for Mr. Ike. Mr. Martindale told officers that he had grown up

with the Defendant and Mr. Ike and that his acquaintances commonly ask if one has seen

the other one. Detective Holman stated that Mr. Martindale appeared to have been

truthful when providing officers with information.

Detective Holman believed the Defendant and Mr. March used Ms. Essence

Wade’s “minivan-type vehicle” to travel from Felicia Street after shooting Mr. Ike to

meet Mr. Beverly. Officers located the vehicle one to two months later, and the vehicle

matched the description of the vehicle that eyewitnesses saw on Felicia Street. Detective

Holman explained that the vehicle changed hues depending on the sun’s reflection and

that the vehicle at certain times appeared to have champagne, tan, and green hues.

Detective Holman testified that officers obtained the Defendant’s cell phone

locations and were able to determine the route that the Defendant would have taken from

the scene of Mr. Ike’s shooting to the location where Mr. Beverly was abducted.

Detective Holman did not believe any witnesses saw the Defendant in possession of his

cell phone during that time period. Surveillance video from a CVS that was taken after

Mr. Beverly was abducted also was obtained.

On cross-examination by the State, Detective Holman agreed that, based on the

timeline, including the fact that the 9-1-1 call from the car accident on Gallatin Road

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involving Mr. Beverly was made at 7:05 p.m., Mr. Ike’s shooting and Mr. Beverly’s

abduction occurred within one hour of each other. The .40 caliber pistol that was used to

kill Mr. Ike was recovered from the scene on Gallatin Road. Detective Holman stated

that the .40 caliber pistol appeared similar to the gun that the Defendant was holding in

photographs found on his cell phone. The serial number on the pistol had been tampered

with, but the TBI was able to recover it. Officers learned that the pistol had been

reported stolen on April 2, 2011, during a home burglary. Detective Holman interviewed

the owner, who knew the Defendant and said the Defendant had been in her home the day

before the burglary. The owner also recalled seeing the Defendant’s phone number on

her caller ID the day prior to the burglary.

Detective Holman agreed that based on the text messages and the correlation of

the calls, it appeared that the Defendant was asking Mr. Hall to assist him in luring Mr.

Ike to that location. Detective Holman also agreed that a cell phone tower ping from the

Defendant’s cell phone to a tower in west Nashville prior to the shooting correlated to a

text message from the Defendant to his wife which stated, “I’m not with no b***h but my

40.” Text messages that occurred over several weeks beginning in July established that

the Defendant was searching for Mr. Ike. Detective Holman agreed that some of the text

messages appeared to indicate that the Defendant’s electronic monitoring device was

hindering his attempt to locate Mr. Ike.

Detective Holman testified that Ms. Cartwright, who lived across the street from

Mr. Hall, stated that while she was on her front porch with her grandmother, she saw

what was later identified at Mr. Ike’s car park outside Mr. Hall’s house and Mr. Hall get

into the car. Ms. Cartwright stated that as the men ran up to the car, Mr. Hall calmly got

out of the car and walked back into his house as if nothing unusual were occurring. She

stated that when she saw a man running up to the car while holding a weapon, she got her

grandmother into the house and then heard gunshots. On redirect examination, Detective

Holman testified that Ms. Cartwright never viewed a photographic line-up that included

the Defendant’s photograph because the detective believed that Ms. Cartwright was too

far away from the shooting to provide an identification.

Detective Robert Hansen testified for the State that according to Mr. Beverly, the

Defendant told Mr. Beverly that he was going to kill Mr. Beverly because he was a

“snitch” and that Mr. Beverly needed to watch the news because the Defendant and Mr.

March had been on a “killing spree.” On cross-examination, Detective Hansen testified

that he believed that Mr. Beverly had stated that both the Defendant and Mr. March made

these comments. Detective Hansen elaborated, “The killing spree could have come from

Mr. March—or—yeah, Mr. March but Mr. Brown had told them they had been—you

know.”

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On redirect examination, Detective Hansen testified that the Defendant made a

statement to another detective at the hospital. The Defendant reported that Mr. Beverly

was armed with two guns and robbed him on Kings Lane. The Defendant stated that he

had known Mr. Beverly his entire life and purchased marijuana from him. The

Defendant said that he met Mr. Beverly, who produced two guns, ordered the Defendant

to drive, and directed him where to go. The Defendant and Mr. March were in the front

seats, while Mr. Beverly was in the backseat. The Defendant reported that Mr. Beverly

shot Mr. March after Mr. March tried to take the guns away from Mr. Beverly. One of

the bullets struck the Defendant, who wrecked and fled the scene. Detective Hansen

acknowledged that the Defendant portrayed himself as the victim of a kidnapping and

maintained that Mr. Beverly possessed the .40 caliber pistol.

Detective Hansen interviewed Mr. Beverly, who stated that he attempted to call

his brother during the kidnapping but that the connection was bad. The Defendant then

called Mr. Beverly’s brother and threatened to kill Mr. Beverly unless his brother gave

him $30,000. When interviewed by police, Mr. Beverly’s brother corroborated Mr.

Beverly’s statement regarding the ransom demand.

The trial court entered a written order in March 2015, denying the Defendant’s

motion to sever both the defendants and the offenses. The trial court denied the

severance of the defendants based upon the State’s indication that it did not plan to

introduce Mr. Hall’s statements at trial. With respect to the severance of the offenses, the

trial court did not find that offenses were mandatorily joined pursuant to Tennessee Rule

of Criminal Procedure 8(a) but found that they were permissively joined pursuant to Rule

8(b). The trial court found that the Defendant did not have a right to a severance of the

offenses pursuant to Rule 14(b)(1) because the offenses were part of a common scheme

or plan and that the evidence of one of the offenses was admissible in the trial of the other

offenses.

The trial court found that the offenses were directed toward a common goal or

purpose in that “the continuing plan at issue involved the Defendant’s common goal of

eliminating individuals considered ‘snitches’ [who] had cooperated with law enforcement

against him or members of his family.” The trial court noted that the offenses occurred

within an hour and in close proximity to each other. The trial court also noted that Mrs.

McGinnis could identify the Defendant as being in her house in 2011 prior to the firearm

being stolen and that the firearm was used in the offenses involving Mr. Ike and Mr.

Beverly.

The trial court found that the evidence from the offenses involving Mr. Beverly

was probative to the charges of the first degree premediated murder of Mr. Ike and

unlawful possession of a handgun by a convicted felon because the evidence of the

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offenses involving Mr. Beverly established that the Defendant had possession of the

firearm used to kill Mr. Ike. The trial court found that the Defendant’s statement that he

was on a “killing spree” was an admission evidencing intent. The trial court stated that

the evidence of the Defendant’s failure to appear in court on the date of the offenses is

relevant to premeditation and established his actions in avoiding detection so that he

could commit the later offenses. The trial court concluded that the evidence of the

offenses involving Mr. Beverly and the stolen firearm were admissible in a trial of the

murder of Mr. Ike, that the probative value of the evidence of the Mr. Beverly offenses

was “extremely high” and “far outweigh[ed]” any prejudicial effect, and that the “events

of each crime are intertwined and inseparable.”

In October 2015, Mr. Hall filed a motion to sever the charge of first degree

premeditated murder of Mr. Ike from the remaining counts of the indictment with which

only the Defendant was charged. Mr. Hall argued that there was no proof that the

Defendant or Mr. Hall knew about Mr. Ike’s cooperation with authorities and that as a

result, the evidence was irrelevant to whether the offenses were part of a common scheme

or plan. Mr. Hall maintained that at the prior severance hearing, evidence of a common

scheme or plan amounted to hearsay, multiple-level hearsay, and stipulations and that Mr.

Hall did not have the opportunity to contest the proof of the common scheme or plan.

The Defendant also filed a second motion to sever Mr. Hall as a co-defendant.

A series of evidentiary hearings were held in November 2015 on the motions as

well as on other motions filed by both defendants, including the Defendant’s motion to

exclude evidence of Mr. Ike’s cooperation with the police as a confidential informant. In

response to the Defendant’s second motion to sever the defendants, the State presented

the testimony of Detective High, whose testimony regarding his review of cell phone call

detail records and the cell towers utilized in making those calls mirrored his testimony at

trial.

Detective Holman testified that officers located Mr. Ike’s body as Detective

Holman was speaking to Mr. Hall in front of his residence. Mr. Hall told detectives that

he had contact with “Tim” before Mr. Ike arrived at Mr. Hall’s house several days earlier.

Mr. Hall agreed to speak to detectives at the precinct, and as a result, law enforcement

developed information that the Defendant was involved in Mr. Ike’s death.

In response to questioning by Mr. Hall’s attorney, Detective Holman testified that

he did not know whether there was any direct evidence that the Defendant was aware of

Mr. Ike’s status as a confidential informant other than the incident relating to Mr. Beverly

and clarified “them telling him they were going to kill the snitches and so on and so

forth.” Detective Holman believed there was evidence that the Defendant knew Mr. Ike

had cooperated with the police, but Detective Holman was unable to recall what that

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evidence was. Detective Holman was unsure whether there was any evidence that Mr.

Hall was aware of Mr. Ike’s cooperation with the police. Detective Holman was unaware

of any link between those who witnessed the wreck involving the Defendant and Mr.

Beverly and the shooting of Mr. Ike. He also did not have any evidence that Mr. Hall

knew of the plan to abduct Mr. Beverly.

When questioned by the State, Detective Holman testified that a review of the

Defendant’s cell phone established that the Defendant communicated with Mr. Hall

following the shooting of Mr. Ike. The Defendant’s cell phone also showed that prior to

his last communication with Mr. Hall, and within minutes of Mr. Ike’s murder, the

Defendant communicated with Mr. Beverly. In response to questioning by Mr. Hall’s

counsel, Detective Holman testified that he did not believe that the Defendant provided

any information to Mr. Hall via text message or that Mr. Hall mentioned Mr. Beverly in

any text message.

In response to questioning by defense counsel, Detective Holman testified that the

only evidence suggesting that the Defendant was retaliating against Mr. Ike due to Mr.

Ike’s cooperation with the police was the Defendant’s statements to Mr. Beverly during

the abduction. Detective Holman testified that the statements of the Defendant and Mr.

March were “something about they were going around and killing snitches and watch the

news. And we’ve already killed 3 or 4, however many it was. I don’t recall the exact

exchange.” Detective Holman noted that the Defendant had sent text messages to others

searching for Mr. Ike and that there were prior reports where the Defendant had been

involved in robbing Mr. Ike. On cross-examination by the State, Detective Holman

agreed that while in Mr. Beverly’s car and after killing Mr. Ike, the Defendant called

someone and instructed the person to “watch the news.”

Mr. Hall’s counsel also presented the testimony of Mr. Beverly, who maintained

that he did not know Mr. Hall and that Mr. Hall was not involved in the abduction. On

cross-examination by the State, Mr. Beverly identified the Defendant and Mr. March as

his abductors. Mr. Beverly denied providing information to the federal authorities in

2011 or 2012 that led to several member of his community being charged with criminal

offenses. He stated that several people believed he had provided such information.

In response to questioning by defense counsel, Mr. Beverly testified that the

Defendant accused him of “snitching” on the Defendant’s cousin. Mr. March told Mr.

Beverly that “we killed somebody today.” Mr. Beverly stated that the Defendant and Mr.

March never mentioned Mr. Ike to him. Mr. Beverly maintained that the Defendant

“didn’t say he was killing snitches. He just said I snitched on his cousin.”

- 39 -

The trial court subsequently entered an order severing the cases of the Defendant

and Mr. Hall based upon Mr. Hall’s intention to present a defense implicating the

Defendant. As a result, the trial court found that Mr. Hall’s motion to sever the offenses

was moot.

B. Analysis

When two or more offenses are joined in the same indictment, as in this case, a

defendant may contest the joinder by filing a motion to sever offenses. Multiple offenses

shall be joined in the same indictment if the offenses are “based on the same conduct or

arise from the same conduct or arise from the same criminal episode[,]” within a single

court’s jurisdiction, and known to the prosecutor at the time of the return of the

indictment. Tenn. R. Crim. P. 8(a)(1). Under the mandatory joinder provisions, a trial

court shall grant a severance of offenses prior to trial if the trial court finds “a severance

appropriate to promote a fair determination of the defendant’s guilt or innocence of each

offense.” Tenn. R. Crim. P. 14(b)(2)(A). Multiple offenses may be joined in the same

indictment if “the offenses constitute parts of a common scheme or plan; or … they are of

the same or similar character.” Tenn. R. Crim. P. 8(b). Where joinder is permissive

pursuant to Rule 8(b), “the defendant has the right to a severance of the offenses unless

the offenses are part of a common scheme or plan and the evidence of one would be

admissible in the trial of the others.” Tenn. R. Crim. P. 14(b)(1). The trial court found

that joinder of the offenses was permissive rather than mandatory, and the State does not

contest this finding on appeal. Accordingly, we must determine whether the trial court

erred in denying the Defendant’s motion to sever the offenses under the standards set

forth in Rule 14(b)(1).

A trial court’s decision to consolidate or sever offenses pursuant to Rule 8(b) and

Rule 14(b)(1) is reviewed as an abuse of discretion. State v. Shirley, 6 S.W.3d 243, 247

(Tenn. 1999). “An abuse of discretion in this context implies that the trial court applied

an incorrect legal standard or reached a decision against logic or reasoning which caused

an injustice to the complaining party.” State v. Denton, 149 S.W.3d 1, 12 (Tenn. 2004).

A defendant has the burden of showing that he was “clearly prejudiced” by the trial

court’s denial of a motion to sever the offenses. State v. Hall, 976 S.W.2d 121, 146

(Tenn. 1998). The trial court must hold a hearing before denying a severance motion.

State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008). The trial court must base its ruling

on the motion on the evidence and arguments presented at the hearing, and, thus, this

court’s review on appeal is limited “to that evidence, along with the trial court’s findings

of fact and conclusions of law.” Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000); see

State v. Garrett, 331 S.W.3d 392, 404 (Tenn. 2011) (conducting an analysis based upon

the evidence presented at trial instead of only the evidence presented at a hearing due to

the trial court’s failure to hold a pretrial hearing).

- 40 -

The State joined multiple offenses in a single indictment pursuant to Rule 8(b),

and the Defendant filed a motion to sever the offenses. In such a situation, Rule 14(b)(1)

places the burden on the State to establish in the trial court that “the offenses are a part of

a common scheme or plan and the evidence of each crime would be admissible in the

trial of the other.” Denton, 149 S.W.3d at 13. In considering a defendant’s motion to

sever offenses, the trial court must apply the severance provisions of Rule 14(b)(1) and

not the “same or similar character” standard in Rule 8(b). Spicer, 12 S.W.3d at 443.

In examining a trial court’s ruling on a severance motion, the primary

consideration is whether the evidence of one offense would be admissible in the trial of

another if the offenses remained severed. Id. at 445. Essentially, “any question as to

whether offenses should be tried separately pursuant to Rule 14(b)(1) is ‘really a question

of evidentiary relevance.’” Id. (quoting State v. Moore, 6 S.W.3d 235, 239 (Tenn.

1999)). The trial court must sever the offenses unless it concludes from the evidence and

arguments presented at the hearing on the motion that:

“(1) the multiple offenses constitute parts of a common scheme or plan; (2)

evidence of [one] offense is relevant to some material issue in the trial of all

the other offenses; and (3) the probative value of the evidence is not

outweighed by the prejudicial effect that admission of the evidence would

have on the defendant.”

Garrett, 331 S.W.3d at 403 (quoting Spicer, 12 S.W.3d at 445) (citations omitted).

1. Common Scheme or Plan

Our supreme court has recognized that “a common scheme or plan for severance

purposes is the same as a common scheme or plan for evidentiary purposes.” Moore, 6

S.W.3d at 240 n.7. There are three types of common schemes or plans: “(1) offenses

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

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

all part of the same criminal transaction.” Shirley, 6 S.W.3d at 248. The State asserts

that the offenses were part of a larger, continuing plan or conspiracy and that the offenses

were all part of the same criminal transaction.

A larger, continuing plan or conspiracy relates to “crimes committed in

furtherance of a plan that has a readily distinguishable goal, not simply a string of similar

offenses.” Denton, 149 S.W.3d at 15. This category “encompasses groups or sequences

of crimes committed in order to achieve a common ultimate goal or purpose.” State v.

Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). The evidence sought is “‘of a

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working plan, operating towards the future with such force as to make probable the crime

for which the defendant is on trial.’” State v. Jawaune Massey, No. E2013-01047-CCA-

R3-CD, 2014 WL 3661490, at *31 (Tenn. Crim. App. July 23, 2014) (quoting State v.

Cayle Wayne Harris, No. M2004-00049-CCA-R3-CD, 2005 WL 2255488, at *7 (Tenn.

Crim. App. Aug. 23, 2005)). A common scheme or plan is not established through

“shared motivation for two otherwise unrelated crimes.” State v. Prentice, 113 S.W.3d

326, 332 (Tenn. Crim. App. 2001) (citing State v. Adams, 859 S.W.2d 359, 362 (Tenn.

Crim. App. 1992)). Each of the consolidated offenses must serve to further the goal or

plan in existence at the time of the commission of the first offenses. Jawaune Massey,

2014 WL 3661490, at *32. Where the State has not established evidence of a “‘working

plan’ whereby the subsequent offenses are predictable or probable from the defendant’s

determination to commit the initial offenses (or vice versa),” the subsequent offenses

cannot constitute parts of a larger, continuing plan. Id. at *31.

In denying the Defendant’s severance motion, the trial court found that the

offenses “involved the Defendant’s common goal of eliminating individuals considered

‘snitches’ [who] had cooperated with law enforcement against him or members of his

family.” The State maintains that the trial court reached the correct result, “even if its

findings do not completely encompass that correct result.” The State asserts that the

offenses were part of a larger, continuing plan to eliminate perceived informants.

While evidence was presented during the pretrial hearings establishing that the

Defendant mistakenly believed that Mr. Beverly was an informant, no evidence was

presented either during the initial hearings or the subsequent hearings on Mr. Hall’s

severance motion to establish that the Defendant knew Mr. Ike was a confidential

informant. The record does not support a working plan linking the murder of Mr. Ike and

the offenses against Mr. Beverly such that the offenses against Mr. Beverly were

predictable or probable based upon the Defendant’s determination to commit the murder

of Mr. Ike. The evidence presented during the pretrial hearings failed to demonstrate that

a larger, continuing plan to eliminate perceived informants existed such that all of the

charges should be tried in the same trial.

The State asserts that, although not found by the trial court, the offenses were all

part of the same criminal transaction. “The same transaction category involves crimes

which occur within a single criminal episode.” Hallock, 875 S.W.2d at 290. Our

supreme court has recognized that offenses within a “single criminal episode”

“are generated by separate physical actions. The actions may be committed

by separate defendants. In other respects, however, they are similar to same

conduct offenses: they occur simultaneously or in close sequence, and they

occur in the same place or in closely situated places. A critical

- 42 -

characteristic of single episode offenses, particularly in cases involving

otherwise unrelated offenses or offenders, is the fact that proof of one

offense necessarily involves proof of the others.”

State v. Johnson, 342 S.W.3d 468, 474-75 (Tenn. 2011) (quoting 2 ABA Standards for

Criminal Justice § 13-1.2 cmt., at 13.10) (footnotes omitted). The acts must occur

“simultaneously or in close sequence” and “in the same place or in closely situated

places.” Id. at 475.

The requirement that “proof of one offense necessarily involves proof of the

others” means that “the proof of one offense must be inextricably connected with the

proof of the other” or that “the proof of one offense forms a substantial portion of the

proof of the other offense.” Id. (quotations omitted). As this court has stated, “‘crimes

admitted as part of the “same transaction” should be limited to those so inextricably

connected in time, place, or manner that the jury would be unable to comprehend the

essential nature of the charged crime without hearing evidence of the “other” crime.’”

State v. John Allen Murphy, Jr., No. M2007-02416-CCA-R3-CD, 2009 WL 1643442, at

*8 (Tenn. Crim. App. June 12, 2009) (quoting Neil P. Cohen et al., Tennessee Law of

Evidence § 4.04[13] (5th ed. 2005)).

While it appears that the murder of Mr. Ike and the offenses against Mr. Beverly

occurred within a short time period of each other, they involved separate acts against

different victims that occurred at different times, by different means, through the actions

of different perpetrators, and in different areas of Nashville. The State, in contending that

the offenses constituted one criminal transaction, relies upon evidence that the same

firearm was used in both the murder of Mr. Ike and the offenses against Mr. Beverly and

that the Defendant and/or Mr. March boasted to Mr. Beverly of having killed someone

else earlier in the day. We agree that this evidence is relevant to support the murder

charge, but “more than mere relevancy is required.” Johnson, 342 S.W.3d at 476. We

cannot conclude that proof that the Defendant and Mr. March abducted Mr. Beverly,

drove around the Nashville area, demanded a ransom from Mr. Beverly’s brother, were

involved in a struggle inside the car during which Mr. Beverly was shot, and were

involved in a second struggle during which Mr. March was shot and killed formed “a

substantial portion of the proof” of Mr. Ike’s murder or was “inextricably connected”

with Mr. Ike’s murder. Rather, we agree with the Defendant that the State could have

presented limited proof during a separate trial on the murder charge regarding the

Defendant’s possession of the murder weapon shortly after the murder occurred and his

boasting to Mr. Beverly about killing someone else earlier in the day.

The State maintains that evidence of Mr. Ike’s murder was “relevant” to Mr.

Beverly’s abduction as corroborating Mr. Beverly’s testimony regarding the threats made

- 43 -

to him by Mr. March and the Defendant. The State further maintains that evidence that

the Defendant had just killed someone “makes it far less likely that Mr. Beverly had

identified the wrong person as his abductor.” As we have noted, relevancy is not the

standard for determining whether offenses constitute the same criminal transaction.

Furthermore, the State presented no evidence during any of the severance hearings to

suggest that identity would be at issue during the trial of the offenses against Mr.

Beverly. Rather, an officer testified that following Mr. Beverly’s abduction, the

Defendant gave a statement to the police in which he maintained that he was a victim in

the offense and that Mr. Beverly abducted him.

We conclude that the evidence presented at the severance hearings failed to

establish that the offenses were part of a common scheme or plan. Thus, the trial court

erred in failing to sever the offenses.

2. Harmless Error

Because a trial court’s decision to grant or deny a severance motion under

Tennessee Rule of Criminal Procedure 14(b)(1) primarily involves an evidentiary

question, the effect of an error in denying a severance motion is determined based upon

the same standard as other non-constitutional evidentiary errors in that “‘the defendant

must show that the error probably affected the judgment before reversal is appropriate.’”

Denton, 149 S.W.3d at 15 (quoting Moore, 6 S.W.3d at 242). The line between harmless

error and prejudicial error is directly proportional to the degree by which the evidence

exceeds the standard required for conviction. Garrett, 331 S.W.3d at 405 (citing Spicer,

12 S.W.3d at 447). “‘The more the proof exceeds that which is necessary to support a

finding of guilt beyond a reasonable doubt, the less likely it becomes that an error

affirmatively affected the outcome on its merits.’” Dotson, 254 S.W.3d at 388 (quoting

State v. Toliver, 117 S.W.3d 216, 231 (Tenn. 2003)). However, this court must focus not

only on the weight of the evidence, but on “‘the actual basis of the jury’s verdict.’”

Garrett, 331 S.W.3d at 405 (quoting State v. Rodriguez, 254 S.W.3d 361, 372 (Tenn.

2008)). Thus, “[t]he key question is whether the error likely had an injurious effect on

the jury’s decision-making process. If the answer is yes, the error cannot be harmless.”

Dotson, 254 S.W.3d at 389.

While the evidence was sufficient to support the Defendant’s conviction for first

degree premeditated murder under a theory of criminal responsibility, the proof was not

overwhelming and primarily consisted of circumstantial evidence. In contrast, the

evidence supporting the convictions in which Mr. Beverly was the victim was

overwhelming, and Mr. Beverly’s testimony was corroborated by the testimony of

witnesses and physical evidence.

- 44 -

The prosecution argued extensively in its opening statement and closing

arguments regarding the link between the murder of Mr. Ike and the offenses against Mr.

Beverly. See Garrett, 331 S.W.3d at 406 (considering the extent to which the prosecutor

attempted to link the offense with the other erroneously consolidated offenses in its

opening statement and closing arguments). For example, during opening statements, the

prosecutor stated that the evidence “will give you premeditation. Premeditation that

Timothy Brown was doing exactly what he said he was doing to Alan Beverly. He was

killing snitches. Chijoke Ike died. He was murdered.” The prosecutor began closing

arguments with the following:

May it please the Court, ladies and gentlemen of the jury, now you know

Timothy Brown murdered Chijoke Ike [and] that he tried to do the same

thing to Alan Beverly. But Alan Beverly had a chance that Chijoke Ike was

[n]ever afforded. Alan Beverly had a chance to fight. He realized he was

going to have to fight for his life and that’s exactly what he did. Something

Chijoke Ike could not do.

These comments “were designed to encourage the jury to bolster the proof of each crime

with the proof of the other.” Id.; see Dotson, 254 S.W.3d at 387 (stating that a “jury

should not ‘be tempted to convict based upon a defendant’s propensity to commit crimes

rather than … [upon] evidence relating to the charged offense’”) (quoting Spicer, 12

S.W.3d at 448).

The trial court’s failure to sever the offenses allowed the State to bolster its proof

of the first degree murder charge with evidence that, on the same day of the offense, the

Defendant and Mr. March abducted Mr. Beverly at gunpoint, threatened to kill him,

demanded a ransom, were involved in an altercation with Mr. Beverly during which the

Defendant shot him in the stomach, and were involved in a second altercation with Mr.

Beverly during which Mr. March was shot and killed. Under these circumstances, we

conclude that the erroneous failure to sever the offenses more probably than not affected

the verdict on the charge of first degree premeditated murder of Mr. Ike. See Tenn. R.

App. P. 36(b); Dotson, 254 S.W.3d at 390. Therefore, the error cannot be classified as

harmless with regard to the Defendant’s conviction for first degree murder. As our

supreme court has recognized, “lenience in the enforcement of such an established rule of

procedure would not encourage future compliance with that rule.” See Dotson, 254

S.W.3d at 390. Accordingly, we reverse the Defendant’s conviction for first degree

murder and remand the case for a new trial on this charge.

We have concluded that the evidence was insufficient to support the Defendant’s

theft conviction. Given the lack of evidence to support the conviction, we also conclude

that the erroneous failure to sever the offenses more probably than not affected the

- 45 -

verdict on the theft charge. See Tenn. R. App. P. 36(b). Accordingly, this is a separate

basis for reversal of the theft conviction, which we have concluded above must be

reversed and the charge dismissed.

As to the remaining convictions, the evidence to support the convictions was

overwhelming. The evidence clearly established the Defendant’s failure to appear in

court on the day of the offense, and the Defendant did not specifically challenge the

charge at trial. With regard to the offenses involving Mr. Beverly, identity was not at

issue, and the Defendant did not deny being inside Mr. Beverly’s vehicle. Instead, the

Defendant argued to the jury that Mr. Beverly’s testimony regarding the events was not

credible. However, Mr. Beverly’s testimony was supported by extensive corroborative

evidence, including the testimony of witnesses and the physical evidence. We conclude

that the proof supporting the remaining convictions is “sufficiently strong” such that the

jury likely would have convicted the Defendant of these remaining convictions even had

it not heard any evidence about the first degree murder of Mr. Ike. See Garrett, 331

S.W.3d at 408. The trial court’s error in failing to sever the offenses does not appear to

have affirmatively affected the jury’s verdict as to these remaining offenses, and the

Defendant is not entitled to relief on these offenses.

III. Admission of Rule 404(b) Evidence

The Defendant contends that the trial court erred in allowing the State to present

evidence that he was on probation, was arrested after committing a new offense while on

probation, obtained his release from custody by agreeing to cooperate with police, and

failed to notify police before or after removing his GPS monitoring device. He maintains

that such evidence was not admissible as substantive proof under Tennessee Rule of

Evidence 404(b). The State responds that the trial court did not abuse its discretion in

admitting the evidence.

A. Pretrial Proceedings

Prior to trial, the Defendant filed a motion to exclude evidence of his prior

cooperation with the police and his gang membership. The State subsequently filed a

notice of its intent to introduce evidence pursuant to Rule 404(b). The State sought to

introduce the following evidence at trial:

1. The Defendant was on probation for a ten-year term for a felony offense.

2. The Defendant was arrested by Detective Adam Weeks on a new charge,

which resulted in the issuance of a probation violation warrant and the

Defendant’s incarceration.

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3. The Defendant offered to assist law enforcement by providing

information on members of the Real Kamp gang, specifically those listed

on the proffer statement provided to Detective Weeks and the State. One or

more of those listed in the statement were believed to have shot at officers

who were sitting in an unmarked police car. The State agreed to release the

Defendant on bond with a GPS monitoring device to allow him to procure

such information and agreed that the Defendant’s cooperation would be

considered in the future resolution of his probation violation charge.

4. The Defendant failed to provide any substantial information to the

officers.

5. The Defendant did not notify officers immediately before or after

removing his GPS monitoring device.

6. On August 9, 2012, the Defendant set up a meeting with Mr. Beverly for

the alleged reason of purchasing marijuana.

The State maintained that the evidence was necessary to establish the Defendant’s

connection and relationship with Mr. March, the Defendant’s failure to communicate his

plans with Mr. March to the police, the Defendant’s knowledge of Mr. March’s

potentially violent nature, and a motive for “killing snitches” to establish that the

Defendant himself was not a “snitch.” The State further maintained that the absence of

such evidence would leave a contextual void and that the jury would be unable to

understand the true relationship between the Defendant and Mr. March.

After a pretrial hearing during which Sergeant Smith, Detective Weeks, and Mr.

Omatu testified, the trial court entered an order allowing the State to present the

following evidence:

1. The Defendant was previously on probation and was arrested on new

charges.

2. The Defendant offered to assist police officers by providing information

regarding individuals named in a proffer note, including Mr. March. The

State agreed to release the Defendant on bond with a GPS monitoring

device to allow him to provide such information. The State agreed that the

Defendant’s cooperation would be taken into consideration in the future

resolution of his new charges.

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3. The Defendant did not notify the police immediately before or after

removing his GPS monitoring device.

4. On August 9, 2012, the Defendant set up a meeting with Mr. Beverly for

the alleged reason of purchasing marijuana.

The trial court found that information relating to the Defendant’s probation, his

subsequent charges, and his removal of his GPS monitoring device were relevant to the

Defendant’s intent to hide his locations and his action and to show a contextual history of

how the Defendant became involved in the series of events in the case. The trial court

also found that the Defendant’s agreement with the State to provide information about

individuals, including Mr. March, was relevant to establish the Defendant’s relationship

with Mr. March and how they became involved in the offenses. The trial court noted that

the relevancy of the Defendant’s relationship with Mr. March and evidence of the

Defendant’s intent is of greater importance given the State’s reliance on a theory of

criminal responsibility. The trial court also found that evidence of the Defendant’s

setting up a meeting with Mr. Beverly to purchase marijuana was probative to show that

the lack of mistake or to negate the assertion that the Defendant was in Mr. Beverly’s

vehicle “by happenstance.” The trial court concluded that the acts were established by

clear and convincing evidence but decided to “curtail” the evidence set forth in the

State’s notice to ensure that the probative value of the evidence was not outweighed by

the danger of unfair prejudice.

During Sergeant Smith’s testimony at trial, the State sought to question him about

the information the Defendant provided to him pursuant to the confidential informant

agreement. The defense objected, arguing that the Defendant’s failure to provide

information in accordance with the terms of the agreement was a “bad act” subject to the

provisions of Rule 404(b). During a jury-out hearing, Sergeant Smith testified about the

information that the Defendant provided and did not provide regarding Mr. March.

Sergeant Smith also testified regarding the Defendant’s failure to provide information

regarding others listed in the proffer.

The trial court did not allow the State to question Sergeant Smith regarding the

information that the Defendant did and did not provide regarding other gang members.

In response to questioning by the trial court, defense counsel acknowledged that he might

maintain during closing arguments that Mr. March was solely responsible for committing

the offenses. The trial court found that, as a result, the Defendant’s relationship with Mr.

March, including the information that the Defendant did and did not provide to the police,

was highly relevant. The trial court stated that it did not believe that the information that

the Defendant provided to the police regarding Mr. March’s actions constituted “bad

acts” of the Defendant subject to the provisions of 404(b). The trial court found that,

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regardless, such evidence was established by clear and convincing evidence and that the

probative value of the evidence was not outweighed by the danger of unfair prejudice.

B. Analysis

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity with the character trait.” Tenn. R. Evid.

404(b). Rule 404(b) has been described as a rule of exclusion rather than inclusion. State

v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014). “Trial courts have been encouraged to take

a ‘restrictive approach of [Rule] 404(b) ... because “other act” evidence carries a

significant potential for unfairly influencing a jury.’” Id. (quoting State v. Dotson, 254

S.W.3d 378, 387 (Tenn. 2008)).

Evidence of other acts may be admissible for other non-propensity purposes, such

as “to establish motive, intent, identity, absence of mistake, or common plan or scheme,”

or contextual background. State v. Little, 402 S.W.3d 202, 210 (Tenn. 2013); see Tenn.

R. Evid. 404(b), Advisory Comm’n Cmts. Evidence may be admitted for these purposes

if the following requirements have been met:

(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).

If the trial court has substantially complied with the procedure mandated by Rule

404(b), a trial court's decision to admit or exclude evidence pursuant to Rule 404(b) is

reviewed under an abuse of discretion standard. State v. DuBose, 953 S.W.2d 649, 652

(Tenn. 1997). A trial court abuses its discretion when “‘it applies an incorrect legal

standard or its decision is illogical or unreasonable, is based on a clearly erroneous

assessment of the evidence, or utilizes reasoning that results in injustice to the

complaining party.’” Jones, 450 S.W.3d at 892 (quoting State v. Adams, 405 S.W.3d

641, 660 (Tenn. 2013)). If the trial court has failed to substantially comply with the

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procedural mandates of Rule 404(b), our standard of review is de novo. State v. Mallard,

40 S.W.3d 473, 486 n.13 (Tenn. 2001) (citing DuBose, 953 S.W.2d at 652-53).

The trial court held an evidentiary hearing outside the jury’s presence and found

that the evidence was admissible for various non-propensity purposes, that the bad acts

had been established by clear and convincing evidence, and that the probative value of

the evidence was not outweighed by the danger of unfair prejudice. The trial court

substantially complied with the procedural mandates of Rule 404(b). Therefore, our

review is abuse of discretion.

On appeal, the Defendant does not challenge the admission of evidence that he

contacted Mr. Beverly prior to the offenses for the purported purpose of purchasing

marijuana. He also does not challenge the trial court’s finding that the State established

the various “bad acts” by clear and convincing evidence. Rather, he challenges the trial

court’s findings that the evidence was relevant for a material issue at trial and that the

probative value of the evidence was not outweighed by the danger of unfair prejudice.

We conclude that the Defendant’s removing of his GPS monitoring device a few

days prior to the offenses without notifying the police was relevant to the issue of intent

and premeditation. Text messages from the Defendant’s cell phone established that he

had been searching for Mr. Ike for several weeks prior to the murder. On July 31, the

Defendant received a text message after his 9:00 p.m. curfew, notifying him of Mr. Ike’s

location. The Defendant responded that while he was “[i]n tonight,” “ima cut dis s**t off

my legg n get da thuggn soon.” He instructed the person to keep him “posted” on Mr.

Ike. The evidence suggests that the Defendant removed his GPS monitoring device

without notifying the police in order to avoid detection so he could commit the murder of

Mr. Ike. The trial court correctly found that the probative value of such evidence was not

outweighed by the danger of unfair prejudice.

An agreement to assist the police by acting as an informant and the terms of that

agreement are not “other crimes, wrongs, or acts” of the Defendant subject to the

provisions of Rule 404(b). The information provided by the Defendant to the police

regarding the bad acts of various gang members, including Mr. March, also does not

constitute “other crimes, wrongs, or acts” of the Defendant subject to Rule 404(b). See

State v. DuBose, 953 S.W.2d 649, 653 (Tenn. 1997) (“Evidence of crimes, wrongs or

acts, if relevant, are not excluded by Rule 404(b) if they were committed by a person

other than the accused.”).

Evidence of the Defendant’s failure to provide the police with information that he

had regarding Mr. March, including his location and cell phone number, was in breach of

the Defendant’s agreement with the police and was subject to exclusion under Rule

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404(b). However, such evidence, along with information that the Defendant provided to

the police regarding Mr. March, was relevant to the Defendant’s relationship with Mr.

March and the Defendant’s utilization of Mr. March to assist in committing the offenses.

By refusing to provide this information, the Defendant helped Mr. March avoid detection

by the police. Evidence of their relationship and the Defendant’s knowledge of Mr.

March’s prior activities was especially probative given the State’s reliance on a theory of

criminal responsibility. The probative value of such evidence is not outweighed by the

danger of unfair prejudice. Accordingly, the trial court properly exercised its discretion

in admitting this evidence.

Detective Weeks and Sergeant Smith testified that the Defendant was incarcerated

on a probation violation. The trial court found that this evidence was relevant to provide

a contextual background as to how the Defendant became involved in the case. In State

v. Gilliland, the Tennessee Supreme Court set forth a test for the admissibility of

evidence of other crimes, wrongs, or acts that is relevant only for providing contextual

background:

[W]hen the state seeks to offer evidence of other crimes, wrongs, or acts

that is relevant only to provide a contextual background for the case, the

state must establish, and the trial court must find, that (1) the absence of the

evidence would create a chronological or conceptual void in the state’s

presentation of its case; (2) the void created by the absence of the evidence

would likely result in significant jury confusion as to the material issues or

evidence in the case; and (3) the probative value of the evidence is not

outweighed by the danger of unfair prejudice.

22 S.W.3d 266, 272 (Tenn. 2000). The language of this test is specifically restricted to

“evidence of other crimes, wrongs, or acts that is relevant only to provide a contextual

background for the case.” Id. (emphasis added); see Leach, 148 S.W.3d 42, 58 (Tenn.

2004).

Evidence that the Defendant had been incarcerated on a probation violation was

relevant as contextual evidence to explain why the Defendant was wearing a GPS

monitoring device and why he agreed to act as a confidential informant. The absence of

such evidence would have created a conceptual void in the State’s presentation of its case

and would have likely resulted in significant jury confusion as to the importance of the

Defendant’s removal of his GPS monitoring device as proof of intent and premeditation.

Such evidence is also relevant to the charge of the Defendant’s failure to appear in court

on the day of the other offenses. The trial court found that the probative value of the

evidence was not outweighed by the danger of unfair prejudice. Thus, the trial court did

not abuse its discretion in admitting the evidence.

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Furthermore, any error in the admission of the evidence was harmless, as the jury

had been made aware that the Defendant had a prior criminal history based upon the

parties’ stipulation at trial of a prior period of incarceration, evidence that the Defendant

was wearing an ankle monitor, and evidence that the Defendant failed to appear in court

on two pending cases on the day of the offenses. See Tenn. R. App. P. 36(b); Jones, 450

S.W.3d at 900 (applying the harmless error standard to the erroneous admission of

evidence under Rule 404(b)).

IV. Admission of Evidence of Mr. Ike’s Status as a Police Informant

The Defendant asserts that the trial court erred in admitting evidence that Mr. Ike

was a confidential informant for the police. The Defendant contends that the evidence

was irrelevant because there was no proof that he was aware of Mr. Ike’s status as a

confidential informant.

Relevant evidence is “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. All relevant

evidence, subject to certain exceptions, is generally admissible under Rule 402 of the

Tennessee Rules of Evidence. Relevant evidence may be excluded if “its probative value

is substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403. The

admissibility of evidence is within the sound discretion of the trial court, and its decision

will not be disturbed on appeal absent an abuse of discretion. See Pylant v. State, 263

S.W.3d 854, 870 (Tenn. 2008).

The State presented evidence of Mr. Ike’s status as a confidential informant as

proof of the Defendant’s motive to kill Mr. Ike. However, there was no evidence

establishing that the Defendant was aware of Mr. Ike’s status as a confidential informant.

While the evidence suggested that the Defendant targeted Mr. Beverly due to the

Defendant’s mistaken believe that Mr. Beverly had served as an informant against the

Defendant’s cousin, this same motivation cannot be attributed to the Defendant’s decision

to target Mr. Ike. Absent proof indicating that the Defendant knew that Mr. Ike was a

confidential informant, evidence regarding Mr. Ike’s status as a confidential informant

was irrelevant. See Tenn. R. Evid. 401. Therefore, the trial court abused its discretion in

admitting the evidence.

Errors in the admission of evidence are typically considered non-constitutional.

Rodriguez, 254 S.W.3d at 375. As such, “Tennessee law places the burden on the

defendant who is seeking to invalidate his or her conviction to demonstrate that the error

‘more probably than not affected the judgment or would result in prejudice to the judicial

process.’” Id. at 372 (quoting Tenn. R. App. P. 36(b)).

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This evidence did not relate to the Defendant’s convictions involving Mr. Beverly,

his firearm convictions, his conviction for failure to appear, or his theft conviction. The

evidence presented to support the Defendant’s convictions involving Mr. Beverly, his

firearm convictions, and his conviction for failure to appear were particularly strong.

Accordingly, we conclude that the erroneous admission of the evidence was harmless as

to these offenses. See Tenn. R. App. P. 36(b).

While the State utilized evidence of Mr. Ike’s status as a confidential informant as

proof of the Defendant’s motive to commit the first degree premeditated murder of Mr.

Ike, proof of motive is not necessary to sustain a conviction for first degree premeditated

murder. See State v. Bell, 512 S.W.3d 167, 191 (Tenn. 2015) (noting that motive is not

an element of first degree murder). Rather, motive is only one of many factors that may

support a finding of premeditation. See Adams, 405 S.W.3d at 663. The State argued to

the jury that Mr. Ike’s status as a confidential informant was the Defendant’s motive to

kill him, but the State also informed the jury during closing arguments that proof of

motive was not necessary to establish first degree premediated murder. At trial, defense

counsel questioned witnesses extensively on cross-examination regarding the lack of any

connection between the Defendant and those about whom Mr. Ike provided information

to the police and the lack of evidence establishing that the Defendant was aware of Mr.

Ike’s status as a confidential informant. Furthermore, as we have previously discussed,

other evidence was presented establishing many of the other factors that support

premeditation. Given the other evidence presented at trial to support premeditation and

the Defendant’s involvement in Mr. Ike’s murder and defense counsel’s cross-

examination of witnesses at trial establishing the lack of any connection between the

Defendant and Mr. Ike’s actions as a confidential informant, we cannot conclude that the

trial court’s erroneous admission of the evidence “more probably than not affected the

judgment.” Tenn. R. App. P. 36(b). Accordingly, the error was harmless.

V. Denial of Motion to Suppress Cell Phone Records

The Defendant contends that the trial court erred in denying his motion to suppress

his cell phone’s call data records obtained pursuant to a judicial subpoena. He maintains

that the requesting officer’s affidavit in support of the issuance of the judicial subpoena

did not meet the requirements in Tennessee Code Annotated section 40-17-123(c). In his

reply brief, the Defendant asserts that the officers obtained the records without a warrant

and without probable cause in violation of the United States Supreme Court’s recent

opinion in Carpenter v. United States, 138 S.Ct. 2206 (2018). The State responds that the

Defendant waived his challenge to the validity of the officer’s affidavit by failing to file a

motion to quash the subpoena within seven days of the service of the subpoena in

accordance with section 40-17-123(k). The State also submits that the affidavit met the

requirements of section 40-17-123(c) and that any error in the admission of the cell phone

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records was harmless. During oral argument before this court, the State argued that even

if Carpenter applies, the admission of the Defendant’s cell phone records was proper

based upon the good faith doctrine.

On or around August 17, 2012, eight days following the offenses and three days

after Mr. Ike’s body was discovered, Detective Holman requested a court order requiring

Sprint to provide records of subscriber and call history, cell tower locations, and text

messaging for the Defendant’s cell phone for the time period between July 30 and August

10, 2012. As grounds for the request, Detective Holman’s affidavit provided:

I, Det. Chad D. Holman, hereby certify that I am a law enforcement officer

as defined in Tenn. Code Ann. §39-11-106, and hereby further state as

follows: (1) I have reason to believe that a specific criminal offense has

been committed or is being committed as identified below; (2) that the

production of the requested documents will materially assist in the

investigation of such offense and that a sufficient nexus exists between the

documents requested and such offense exists because:

On 8/9/12, Chijoke Ike was murdered near 33rd Ave N and Felicia St,

Nashville, Tennessee. Mr. Timothy Brown, the believed owner of this

phone, is a suspect in this homicide. Preliminary indications are that Mr.

Brown was planning this robbery/homicide prior to the incident taking

place. These records are needed to gain further information relating to Mr.

Brown’s involvement in this homicide.

A criminal court judge signed the order on the same day, requiring Sprint, as the

custodian of the records, to provide the requested records to Detective Holman within

fourteen days. The return of service, signed by Detective Holman, provided that on the

same day, he served a copy of the order to Sprint via facsimile.

In April 2014, the Defendant filed a motion to suppress evidence obtained

pursuant to the order. He asserted that the affidavit failed to state with particularity (1)

the articulable reasons why the officer believed the records would materially assist in the

investigation of the offense and (2) the nexus between the records requested and the

offense in accordance with Tennessee Code Annotated section 40-17-123(c). The State

filed a response, maintaining that the Defendant’s motion was untimely and that the

affidavit met the requirements in section 40-17-123.

The trial court entered an order denying the Defendant’s motion. The trial court

did not address the timeliness of the Defendant’s motion. Rather, the trial court found

that the affidavit met the requirements in section 40-17-123. The trial court noted that the

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affidavit provided the date and location of the offense, a twelve-day range of information

needed from the specific cell phone tied to a suspect believed to have planned the

offense, and the necessity of the records in order to determine the suspect’s involvement

in the offense.

In reviewing the trial court’s ruling on a motion to suppress on appeal, the party

prevailing in the trial court “is entitled to the strongest legitimate view of the evidence

adduced at the suppression hearing as well as all reasonable and legitimate inferences that

may be drawn from that evidence.” State v. Bell, 429 S.W.3d 524, 529 (Tenn. 2014).

This court must uphold the trial court’s findings of fact, unless the evidence

preponderates against them. Id. at 528. “Questions of credibility of the witnesses, the

weight and value of the evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). We review the application of the law to the facts de novo without a presumption

of correctness to the trial court’s conclusions of law. State v. Walton, 41 S.W.3d 75, 81

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