# State of Tennessee v. Timothy Leron Brown

> Court of Criminal Appeals of Tennessee · April 8, 2019

URL: https://www.frixlaw.com/law-library/cases/4385067

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** April 8, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge John Everett Williams
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4385067

## How later opinions describe it (automated extraction)

- applying the harmless error standard to the erroneous admission of evidence under Rule 404(b)
- recognizing that while the exclusionary rule may bar the admission of evidence directly or indirectly obtained from an unconstitutional search or seizure, “the exclusionary rule does not apply to evidence obtaining by means independent of the constitutional violation”
- noting that motive is not an element of first degree murder

## Opinion text

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
___________________________________

No. M2017-00904-CCA-R3-CD
___________________________________

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
-2-
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.

-3-
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
-4-
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.
-5-
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

-6-
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.

-7-
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
-8-
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.”

-9-
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
- 10 -
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
- 11 -
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.

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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
- 27 -
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
- 31 -
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.
- 33 -
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
- 34 -
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.”

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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).
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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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4385067. Public record. Not legal advice.