The opinion
08/09/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 2, 2019
STATE OF TENNESSEE v. DUSTIN MICHAEL CATHEY
Appeal from the Circuit Court for Crockett County
No. 4258 Clayburn Peeples, Judge
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No. W2018-00615-CCA-R3-CD
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The Defendant, Dustin Michael Cathey, was convicted by a Crockett County Circuit
Court jury of first degree felony murder and second degree murder. The second degree
murder conviction merged into the conviction for felony murder, and the trial court
imposed a life sentence. On appeal, the Defendant argues that the trial court erred in
including language regarding criminal responsibility for the conduct of another in its jury
charge, and he also argues that the evidence is insufficient to sustain his convictions.
After review, we affirm the judgments of the trial court.
Tenn. R. App. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and TIMOTHY L. EASTER, J., joined.
Michael R. Working and Jennifer Dilley, Memphis, Tennessee, for the appellant, Dustin
Michael Cathey.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Garry G. Brown, District Attorney General; and Hillary Lawler
Parham and Jason Scott, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTS
The Defendant was indicted for first degree premeditated murder and first degree
felony murder in the death of the eighty-nine-year-old victim, Frances Lilley. The State
requested that the Defendant’s trial be joined with the trial of Daniel Parker. The trial
court found that the Defendant and Mr. Parker could have been jointly indicted, but the
court denied the motion after finding that the Defendant had shown clear prejudice from a
joint trial. The Defendant’s case proceeded to trial.
State’s Proof
Through the testimony of John Cole, telecom operations manager for TEC, the
State introduced records from the victim’s telephone, which included calls that were
dialed, received, and misdialed during the time surrounding the murder. Robert Howell,
keeper of records for Crockett County 911, authenticated the 911 call made by Alymer
Lilley, the victim’s husband, reporting the murder, and it was played for the jury. Mr.
Howell believed that the call came in about two minutes before midnight on August 4,
2011.
Bobby Vaughn, the victim’s brother, testified that Mr. Lilley was alive at the time
of the victim’s murder but had since passed away. Mr. Lilley suffered from dementia and
the victim took care of him. His dementia often caused him to have some confusion.
They lived on farmland in the country.
Jim Knox, Chief of Police for the city of Alamo, testified that he responded to the
911 call to the victim’s house, possibly sometime after 11:00 p.m. He recalled that there
were a number of fields around the victim’s home, and the area was “pretty dark” at
night. Upon entering the home, the police found Mr. Lilley sitting in a chair, and the
deceased victim was lying on the floor. The victim’s body was cool to the touch. Chief
Knox left the scene five or ten minutes later when the ambulance personnel and coroner
arrived. Chief Knox said that Deputy Parks also responded to the scene, but he had
suffered a stroke since the murder and was therefore unable to testify at trial.
Dr. Marco Ross, the Deputy Chief Medical Examiner for the West Tennessee
Regional Forensic Center, performed the autopsy on the victim. The victim suffered
from two gunshot wounds, one in her neck and one in her right shoulder. The gunshot to
the victim’s neck was the fatal wound. She also sustained rib fractures, which Dr. Ross
surmised may have been caused by the gunshot or by falling after being shot. A bullet
was recovered from the victim’s upper back. Dr. Ross said that it appeared the victim
had been shot from a distance, but he could not tell from how far. He could only surmise
from the lack of gunpowder on her body that she was shot from a distance greater than 3
or 4 feet.
Tennessee Bureau of Investigation (“TBI”) Agent Phillip Cicero led a team of
investigators in the victim’s murder investigation. Agent Cicero and his team arrived at
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the crime scene around 9:00 a.m. the morning after the murder. There was a large cotton
field to the right of the house, and it was surrounded by a lot of farmland. The victim’s
body was found between the kitchen and family room inside the home. It appeared that a
shot had been fired through a sliding glass door into the house, killing the victim.
Agent Cicero recalled that there was a deep freezer in the carport, which the TBI
dusted for fingerprints and swabbed for DNA. A jar of frozen jam was found sitting on
top of the air conditioning unit behind the house. The circumstances indicated that the
jam had been taken from the deep freezer. A cigarette butt was collected from the road in
front of the house.
Sheriff Troy Klyce with the Crockett County Sheriff’s Department responded to
the crime scene shortly after midnight on August 5, 2011. The victim had been shot
multiple times, and her husband was present but disoriented with dementia-like
symptoms. Sheriff Klyce called the TBI to investigate the scene.
Through the course of his investigation, Sheriff Klyce learned that Mr. Lilley had
attempted to call Darrell Manning, who lived nearby and helped the Lilleys with their
land. Sheriff Klyce made a recording of a message that Mr. Lilley left on Mr. Manning’s
answering machine. Mr. Lilley was the one who initiated contact with law enforcement,
but it was not clear how long it took him to dial 911 successfully. Sheriff Klyce surmised
that the victim was murdered after dark because a flashlight was found on the floor near
her body.
Sheriff Klyce testified that two weeks after the murder, police executed a search
warrant of the Defendant’s home in which they found a box of .22-caliber cartridges.
That same day, police visited Roger Mosier’s residence in Alamo looking for Daniel
Parker, who had failed to appear in court on another matter. Mr. Parker was also a
suspect in the victim’s murder. Mr. Mosier and Trina Parker, Mr. Parker’s mother, were
there. Ms. Parker, who was “frantic and really nervous,” told Sheriff Klyce that she had
“the gun.” Ms. Parker took the police to her home and gave them the gun. Officers
located Mr. Parker later that night at the home of Dustin Ellis. The next day, Mr. Parker
accompanied officers to his home and turned over the manufacturer’s box that originally
came with the gun that was recovered from Ms. Parker. Mr. Parker advised officers that
he took the shells out of the gun, but the police never located the shells.
Sheriff Klyce said that several people were suspects during the course of the
investigation, including Brittany Bushart; Dustin Ellis, because he was in possession of
the murder weapon at some point in time; the Defendant; and Daniel Parker, who was
eventually charged with the crime like the Defendant. Sheriff Klyce stated that, to his
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knowledge, the Defendant, Mr. Parker, and Mr. Ellis were all friends during the time
period at issue in 2011.
Detective Penny Curtis worked for the Crockett County Sheriff’s Department at
the time of the incident. Detective Curtis responded to the scene during the early
morning hours of August 5, 2011. She observed two jars of strawberry jam sitting on an
air conditioning unit behind the house. The jars were frosted over, leading investigators
to believe they had been sitting out for a while.
Detective Curtis testified that in addition to the box of .22-caliber cartridges found
in the Defendant’s bedroom when they executed a search warrant, officers found a plastic
cup with a red sticky substance and more of the same sticky substance on the floor.
Detective Curtis searched the Defendant’s vehicle and found a camouflage bag
containing a hammer and assorted tools, gloves, and a full-face camouflage mask.
Detective Curtis recalled encountering Daniel Parker’s mother later that day, similarly to
Sheriff Klyce. She remembered that Ms. Parker said to them, “My son did not kill the
old lady.”
Detective Curtis testified that, with regard to the gun officers recovered from Ms.
Parker, Mr. Parker told them that he had bought it from Dustin Ellis and then sold it to his
mother. She recalled that Mr. Parker informed the officers that there were two spent
shells stuck inside the gun when he bought it that he had to pry out using a knife. The
police never located the shells. Detective Curtis stated that she spoke with Debra Wright,
who lived in the vicinity of the victim but not necessarily within walking distance. Ms.
Wright advised that Mr. Parker came to her house on August 4th and again on the
morning of the 5th. Detective Curtis also spoke with Homer Joe Young, who likewise
lived in the vicinity of the victim, and Mr. Young advised that he saw Mr. Parker walking
around the Chestnut Bluff-Broadview intersection at 5:30 p.m. on the day of the shooting.
TBI Agent Cathy Ferguson assisted Crockett County law enforcement with the
investigation of the case. Upon her arrival on the scene, Agent Ferguson learned that a
family member had spoken to the victim on the telephone sometime between 8:00-8:30
p.m. Agent Ferguson subpoenaed phone records for the victim’s home telephone in order
to establish a time frame because the victim’s husband knew that he had called 911 but
did not know what time due to his dementia. Approximately 27 calls were made between
10:26 p.m., when the victim’s husband attempted to call a neighbor, Darrell Manning,
and 11:58 p.m., when he successfully contacted 911.
Agent Ferguson testified that she walked through the house to document evidence,
take photographs, and determine the scope of the crime scene. Two jars of freezer jam
were sitting on the air conditioning unit behind the house. The jars were “frosty” and
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appeared to have been recently removed from a freezer. Agent Ferguson packaged the
jars in a way to preserve fingerprint evidence, and they were placed into a temperature
controlled TBI crime scene truck. However, the jars spilled en route to Nashville,
destroying any potential fingerprints or DNA that might have been on the jars. Among
other evidence at the scene, Agent Ferguson noted that a broken flashlight was found on
the floor near the victim’s body, and the victim’s purse containing $800 in cash was on a
chair pushed under the dining room table.
Agent Ferguson testified that she, as well as Sheriff Klyce and Detective Curtis,
went to Roger Mosier’s house to look for Mr. Parker and while there, Mr. Parker’s
mother told them that she “ha[d] the gun.” Ms. Parker took the police to her home and
gave them the combination to the safe in which they found a gun. Agent Ferguson said
that it was her responsibility to follow up on collected evidence and determine
evidentiary value to the investigation. She determined that none of the evidence she
collected, such as a shoe print and a cigarette butt, had evidentiary value. She learned
that the field next to the victim’s home had recently been sprayed and believed that the
shoe print was from a field worker rather than a suspect.
Agent Ferguson testified that she took a statement from the Defendant on
September 12, 2011. With regard to the gun that was recovered from Ms. Parker’s house,
the Defendant said that he stole it from Billie Pitts, his grandmother, in the middle of July
and sold it to Dustin Ellis one week later for $45. The Defendant elaborated that he was
driving through Maury City when he saw Mr. Ellis at a gas station and asked him if he
wanted to buy the gun. They met up again between 11:00 p.m. and midnight and
completed the transaction. The Defendant said that the gun was not loaded when he sold
it to Mr. Ellis. The Defendant claimed that he heard of the victim’s murder one or two
days after he sold the gun. The Defendant told Agent Ferguson that he knew Daniel
Parker because they did drugs together and said that he visited Mr. Parker’s home after he
sold the gun to Mr. Ellis. Agent Ferguson said that the Defendant’s cell phone records
showed a decrease in activity during the time frame that investigators believed the victim
to have been murdered. There was no activity between the Defendant and Mr. Parker’s
cell phones during the period in which the victim was likely murdered.
Agent Kevin Warner worked as a firearms examiner with the TBI at the time of
the murder, and he examined the gun that was recovered from Ms. Parker’s residence.
Agent Warner described the gun as being of low quality and mass produced and said that
such a gun is easily damaged. He compared the bullet that was recovered from the
victim’s body and determined that it had the same class characteristics as bullets that had
been fired from the recovered gun. While he could not say so definitively, he opined that
the bullet likely had been fired from that gun. He also test-fired several of the bullets that
were found in the Defendant’s bedroom and, after comparing those test-fired bullets to
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the bullet recovered from the victim’s body, determined that they were fired from the
same gun.
Dr. Eric Warren worked with the TBI as a ballistics expert at the time of the
murder, and he was part of the team that examined the crime scene. He noted that a
windowpane of the sliding glass door had been shattered by a bullet. He also noted that a
house plant sitting on the kitchen table just inside the sliding glass door had several holes
in its leaves. Dr. Warren further found holes in the curtains and a window behind the
victim’s body. He found the presence of lead on the house plant, table, curtains and
window. Based on the bullet holes, Dr. Warren was able to determine the trajectory of
the bullets. Dr. Warren also re-examined the bullet that was recovered from the victim’s
body, the gun that was recovered, and the bullets that were recovered from the
Defendant’s home. He could not form a conclusive opinion regarding whether the bullet
recovered from the victim’s body was fired from the recovered gun due to damage to the
bullet. However, he determined that the bullet shared the same class and individual
characteristics as bullets fired from the gun, and he did not find any evidence to suggest
that the bullet was not fired from the gun. Dr. Warren further concluded that the bullet
recovered from the victim’s body was the same type and design as the bullets that were
found in the Defendant’s room.
Ashley Clem testified that she and the Defendant had a child together. At the time
of the murder, Ashley1 was living in Bells with her mother, Jacqueline Clem. The
Defendant stayed with them “a lot of the time” or with his father in Maury City. Ashley
provided a statement to the police in which she recounted that the Defendant came to her
house with a gun in a box on the evening of the murder between 8:30-9:00 p.m. He
showed the gun to Jacqueline, but she did not see the gun herself. Ashley saw the
Defendant again the next morning, and he told her that he had sold the gun. The
Defendant also told her that he had been out all night with Mr. Parker and Mr. Ellis. The
Defendant had money, but Ashley did not know where he obtained it. Ashley recalled
that she texted the Defendant when she heard about the victim’s death, and he told her
that he had been in Maury City with Mr. Parker and Mr. Ellis.
On cross-examination, Ashley testified that the Defendant received a text message
from his mother in Ashley’s presence informing him of the victim’s death. The
Defendant explained to Ashley that he knew who the victim was because he and his
father had looked at her truck several years earlier to potentially buy it. Ashley recalled
that during the time period of the incident, the Defendant’s father had kicked him out of
the house because the Defendant was using drugs.
1
Because some of the witnesses have the same last name, we will refer to them by first name only at
times for clarity. We mean no disrespect by this practice.
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Jacqueline Clem recalled that she gave a statement to police about three weeks
after the murder in which she said that she saw the Defendant with a .22-caliber gun in a
box around 8:30-9:00 p.m. the night of the murder. When the Defendant left, he said that
he was going to try to sell the gun. The Defendant returned in the early morning hours
the next day. On cross-examination, Jacqueline said that she did not know the exact date
the above interaction with the Defendant occurred, only that it was around the time
period of the victim’s murder.
Dustin Ellis testified that he knew both the Defendant and Mr. Parker. Mr. Ellis
recalled a night in early August 2011 when he went out with his friend Chris Hughes.
They attended a cookout at Timmy Mosier’s home until 10:00 or 11:00 p.m. and then
went to a bar but did not stay because there was no air conditioning. They drove around
for a while and then stopped at their friend Antwan Claybrooks’ home around midnight-
12:30 a.m. They were in the driveway talking to Mr. Claybrooks when the Defendant
pulled up in a white Ford Explorer, showed them a gun and said he was trying to sell it.
Mr. Ellis bought the gun from the Defendant for $40 and put it behind the seat of his
truck. Mr. Ellis recalled that when the Defendant pulled up, he was acting “kind of out of
the ordinary, kind of crazy-eyed,” and Mr. Ellis thought the Defendant was going to rob
them.
Mr. Ellis testified that the Defendant rode with him and Chris Hughes to a store in
Maury City to buy beer. He decided to drop the gun off at his mother’s house in Alamo
because he was driving around drinking alcohol, and he left the gun in a toolbox in his
mother’s carport. They continued to Brownsville to buy beer and rode around drinking it
before returning to Crockett County. Mr. Ellis eventually dropped off Mr. Hughes and
then took the Defendant to his vehicle around 2:00 a.m.
Mr. Ellis testified that as he was dropping off the Defendant, he saw Mr. Parker
turning onto the road where he lived. He went to Mr. Parker’s house and visited with
him for about an hour. He recalled that Mr. Parker’s demeanor was not unusual for 2:00
a.m. About ten minutes after he arrived at Mr. Parker’s house, the Defendant also
showed up, and the three men drank and watched television. Mr. Ellis eventually went
home to go to sleep. He did not think that the Defendant was still at Mr. Parker’s home
when he left.
Mr. Ellis testified that he stopped by a gas station on his way to work later that
morning. He saw Mr. Parker there and mentioned that he had bought a gun from the
Defendant that he did not need. Mr. Parker offered to buy it for $40 to give to his mother
who lived alone. They met at Mr. Parker’s house a short while later to finalize the
transaction.
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Mr. Ellis acknowledged that he gave more than one statement to the police. In his
first statement, given two weeks after the incident, Mr. Ellis said that around 1:00 or 2:00
a.m. on August 5, 2011, he saw the Defendant driving down the road in the opposite
direction. They both pulled off the road to speak, and then the Defendant got into the
truck with him and rode around to drink beer. The Defendant had money to buy beer
because Mr. Ellis paid him $40 for the gun. Mr. Ellis did not mention anything in his
statement about seeing the Defendant at Mr. Claybrooks’ home.
Mr. Ellis agreed that he gave another statement to police approximately three
weeks later, which included information about seeing the Defendant at Mr. Claybrooks’
house. He explained that he omitted details about Mr. Claybrooks in the first statement
because Mr. Claybrooks was known to sell marijuana, and Mr. Ellis did not want to
mention him. Mr. Ellis confirmed that he testified consistently in the Defendant’s and
Mr. Parker’s trials and had not tried to skew his testimony to help either individual.
George Foster was an inmate housed in the same jail pod as the Defendant at
various times, and they were friendly with one another. In the spring of 2012, Mr. Foster
and the Defendant were smoking a cigarette in the sally port together when the Defendant
told him that he and Mr. Parker had accidentally shot an old lady in Crockett County.
The Defendant elaborated that he and Mr. Parker were “strung out” on drugs and had
gone to the victim’s residence to steal metal when they panicked. The Defendant and Mr.
Foster were in the same “white pride” prison gang, and the Defendant “put it on the
cross” about what he had done. Mr. Foster contacted Detective Curtis to tell her what he
had learned from the Defendant. Mr. Foster denied that he received a benefit from
testifying against the Defendant, elaborating that he gave a statement because “there’s a
difference in right and wrong . . . [and] you’re supposed to do what’s right.” Mr. Foster
admitted that he had three prior convictions for sexual battery and one for violating the
sex offender registry.
Glenn Johnson was incarcerated in the Crockett County Jail in September 2011 for
driving under the influence, and he was housed in a cell with the Defendant and two other
men. He did not know the Defendant prior to his incarceration but he was friends with
Mr. Parker beforehand. He did not know that the Defendant and Mr. Parker knew each
other. Mr. Johnson recalled that he overheard the Defendant telling someone that he was
involved in the victim’s homicide, and the Defendant later told him about it directly. The
Defendant was upset and crying in the cell one night, and he confided in Mr. Johnson that
he had shot the victim. The Defendant said that he was stealing scrap iron when it
happened. Mr. Johnson informed Sheriff Klyce of the Defendant’s confession after Mr.
Parker encouraged him to come forward with the information. Mr. Johnson thought that
the Defendant was taking Seroquel when he confessed.
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John Anderson was imprisoned with the Tennessee Department of Correction on
an aggravated burglary conviction at the time of trial but in 2011 was incarcerated in the
Crockett County Jail. He and the Defendant were assigned to the same pod, which held
approximately 16 inmates. One night while most of the inmates were sleeping, Mr.
Anderson stayed awake reading a book. The Defendant was pacing, told Mr. Anderson
that he needed to get something off his mind, and began talking about the victim’s
homicide. The Defendant told him that he had done yard work for the victim the day
before the murder, and she had paid him $100 and gave him something to eat and drink.
The Defendant said that he bought drugs and diapers with the money, but his girlfriend
was “on him” because their baby needed food and more diapers. He remembered that the
victim had tools and other valuable items in her shed, so he decided to steal the items and
sell them. He parked his truck behind some bushes near the victim’s home and planned
to wait until sundown, but he became hungry. He went to the victim’s home, took some
strawberry jam and peanut butter, and made some sandwiches. He then returned to the
bushes to eat, smoke a cigarette, and wait for dark.
Mr. Anderson continued recalling that the Defendant told him that he went to the
shed once the sun set. As he was about to go in, he was surprised when a light came on
in the house, and he turned and fired toward the light. The victim fell down, and the
Defendant fled. The Defendant appeared to be nervous and sad as he recounted what had
occurred. Mr. Anderson told Detective Curtis the following day about the Defendant’s
confession. In the statement given to Detective Curtis, Mr. Anderson said that the
Defendant told him that he was smoking methamphetamine while he waited in the
bushes, and he became agitated because the victim did not go to bed as early as he had
hoped. He wanted more methamphetamine, so he acted sooner than he had planned. The
Defendant told Mr. Anderson that he sold the gun to get money for methamphetamine
and supplies for his baby. The Defendant also told him that he had stolen the gun from
his grandfather. Mr. Anderson confirmed that he did not receive any benefit from telling
the police about the Defendant’s confession.
On cross-examination, Mr. Anderson acknowledged that he told the Defendant
that he knew how to beat a murder charge. Mr. Anderson admitted that the majority of
his own crimes involved breaking into people’s backyard sheds and stealing tools.
Defendant’s Proof
Brandon Park testified that John Anderson had stolen lawn equipment from him,
and he did not think Mr. Anderson had a reputation for being an honest and trustworthy
person because he was a thief.
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Shane Perry testified that he was familiar with Mr. Anderson and said that he had
a reputation for untruthfulness. Mr. Perry’s opinion was based on Mr. Anderson’s having
sold him stolen goods.
Homer Joe Young testified that between 5:00-6:00 p.m. on the night of the
murder, he was driving on Chestnut Bluff-Maury City Road when he saw Mr. Parker by
the side of the road. He thought that Mr. Parker might have been hurt in a car accident
because he was holding his arm, so Mr. Young turned his car around to look for him but
did not find him. The following morning, Mr. Young saw crime scene tape at the
victim’s house and told the officers about having seen Mr. Parker the evening before.
Mr. Young identified Mr. Parker from a photographic lineup several months after seeing
him walking down the road.
Brittany Bushart testified that she lives just off Chestnut Bluff-Maury City Road
with her parents. She and Mr. Parker have a child together but are no longer dating. In
2011, Ms. Bushart’s parents forbid Mr. Parker from coming to their house. Her parents
were out of town the first week of August that year, and Ms. Bushart invited friends over
to swim. Mr. Parker showed up uninvited, and her aunt and uncle made him leave. She
and Mr. Parker had a tumultuous relationship.
Ms. Bushart testified that a few days later, she found Mr. Parker swimming in her
pool. He was supposed to have gone to court that day. She threatened him with a gun to
force him to leave. Shortly thereafter, she went to Mr. Parker’s house, and they argued.
She slipped and irritated a prior knee injury. Meanwhile, Mr. Parker called the police to
report that she had a loaded gun and was going to hurt him. She went home and did not
speak to him again until around midnight when he showed up at her house. They argued,
and then she drove him to his vehicle that was parked on Green Road around 12:30-1:00
a.m. He had left his car in front of Debra Wright’s house, which was a couple of miles
from Ms. Bushart’s house. Ms. Bushart did not know why Mr. Parker had parked in front
of Ms. Wright’s house or how he got from his car to her house. However, she did not
think it was strange that his car was parked so far away because he was not allowed to
come to her house.
Ms. Bushart elaborated that she wanted Mr. Parker to leave her house that day
because she did not want her parents to learn that he had been there. Her parents had
custody of her child at the time because she had a drug abuse problem that was a direct
result of her involvement with Mr. Parker. Ms. Bushart recalled that she provided a
statement to police approximately one year after the murder. She told the officers that
her memory was fuzzy because she had been taking drugs at the time. She also told them
that she had smoked marijuana and used pain pills the day before she gave the statement.
Ms. Bushart further admitted that she had used drugs just a few weeks before trial. At the
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time of trial, she had a platonic relationship with Mr. Parker and was in a romantic
relationship with someone else. Ms. Bushart estimated that the victim’s house was three
or four miles from her house.
Betty Bushart, Brittany Bushart’s grandmother, testified that Brittany2 called her
the evening of August 4, 2011, saying that she had fallen by the pool and hurt her leg.
Betty went to Brittany’s house to check on her and stayed until 10:00-10:30 p.m. She did
not see Mr. Parker or his car while she was at Brittany’s house.
Debra Wright3 recalled that Mr. Parker had asked to leave his truck in her
driveway around 9:00-10:00 p.m. sometime in early August 2011 due to a problem with
the fuel pump. Ms. Wright recalled that a white SUV was with Mr. Parker when he
dropped off his vehicle, but she was not sure who was driving it. Ms. Wright did not see
the Defendant that evening. Brittany Bushart brought Mr. Parker back to get his truck the
next morning around 9:30-10:00 a.m., and she was driving a white SUV. Mr. Parker
asked Ms. Wright if she could sell him some gas, but she did not have any, so she took
him to a gas station nearby. While en route, Mr. Parker asked to use Ms. Wright’s phone
to call his grandmother because he had missed court the day before. He also told Ms.
Wright that he had called the police on Ms. Bushart the previous day because she had
threatened him with a gun. Ms. Wright recalled that Mr. Parker was wearing shorts and
had dried mud from his neck to his feet. He had burrs stuck to him, and he appeared to
be under the influence of something. He looked like he had been up all night. Mr. Parker
told her that he had walked to her house in the middle of the night to get cigarettes.
Private Investigator Jay North testified that he re-created “potential routes” that
Mr. Parker could have run according to witness testimony in an effort to show that Mr.
Parker was the murderer. Mr. North noted that he was about the same age that Mr.
Parker would have been at the time of the murder and that he was a relatively fit and
active person. He found that it was “fairly tough” to run some of the routes due to
conditions of the field and land obstacles like ditches. He ran the routes in the month of
February.
The first route Mr. North ran was a 1.7 mile route from the victim’s house to the
intersection of Climer Road and Chestnut Bluff-Maury City Road, which took him about
22.5 minutes. The next route was a 2.05 mile route from the victim’s house to the
intersection of Antioch Road and Chestnut Bluff-Maury City Road, which took him right
2
Because some of the witnesses have the same last name, we will refer to them by first name only at
times for clarity. We mean no disrespect by this practice.
3
Ms. Wright had divorced at the time of trial and was going by the last name of Deaton, but for
consistency with other witness testimony, we will refer to her by the last name of Wright.
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under 28 minutes. He also ran from the victim’s house to Broadview Road where the
Defendant lived, which was a distance of two miles and took him almost 28 minutes. Mr.
North said that he was “pretty scraped up” and covered in brush after running through the
fields.
Mr. North also drove between several points of reference, noting the time and
distance. The distance between the victim’s home and the intersection of Climer Road
and Chestnut Bluff-Maury City Road, which was a logical location for someone running
through the fields to exit onto the road, was 2 miles and took 3 minutes and 45 seconds to
drive. The distance between Climer Road and Antioch Road was .2 miles and took 31
seconds to drive. The distance from the intersection of Antioch Road and Chestnut
Bluff-Maury City Road to Debra Wright’s residence on Green Road was two miles. The
distance from the victim’s residence to Ms. Wright’s residence was 4.2 miles and took
Mr. North 7 minutes and 40 seconds to drive.
Lauren Hanks also worked as a private investigator for the defense. Ms. Hanks
identified photographs taken by the defense team of the victim’s residence and a high
voltage utility line that ran from close to the victim’s residence by several points of
interest and witnesses’ homes, ending near the Bushart residence. Ms. Hanks talked to
Debra Wright and Homer Joe Young and used information learned from them to create
potential routes through the fields that Mr. Parker could have hypothetically taken. Ms.
Hanks accompanied Mr. North when he ran and drove potential routes.
Chief Shannon Hughes, jail administrator for the Crockett County Jail, testified
that the Defendant’s records did not indicate that he was ever administered Seroquel
while in the jail. Chief Hughes also testified that inmate records revealed that the
Defendant and Glenn Johnson were housed together from September 10-13 and then
again from September 15-20, 2011. The Defendant and John Anderson were housed
together from September 20-October 10, 2011. The Defendant was charged with first
degree murder on September 30, 2011. Chief Hughes recalled that he observed the
Defendant and Mr. Foster standing together in the sally port area laughing and joking on
April 11, 2012, despite their being housed in different pods at the time.
Myranda Austin testified that she did not know the Defendant and only saw him
for the first time the day of trial. However, she met Mr. Parker in July 2011, and they
used drugs together. Ms. Austin recalled that Timothy Climer, the father of her two
oldest children, was “good party buddies” with Mr. Parker. In the fall of 2011, Ms.
Austin attended a drug party where she overheard Mr. Parker tell Mr. Climer that he had
shot the victim and started crying. He said that his truck had broken down while he was
with a friend. They were trying to siphon gas when he heard a noise, and “he turned
around and . . . shot her.” Ms. Austin admitted that she had smoked marijuana, taken
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pills, and smoked methamphetamine that night but said that Mr. Parker’s confession was
a sobering moment. Ms. Austin recalled that Mr. Parker was acting paranoid that night.
Ms. Austin acknowledged that she did not report what she heard right away
because she did not want to be involved. She said that about two years later, Mr. Climer
attempted to use the information about Mr. Parker “to get out of some trouble.” Ms.
Austin was then contacted by law enforcement to give a statement about what she had
overheard at the party, which she did on September 12, 2013.
Following the conclusion of the proof, the jury convicted the Defendant of second
degree murder in Count 1 and first degree felony murder in Count 2. The trial court
merged the convictions and sentenced the Defendant to life imprisonment for first degree
felony murder.
ANALYSIS
I. Jury Instructions
The Defendant argues that the trial court erred in including language relating to
criminal responsibility in its jury instruction on felony murder.
“It is well settled that a defendant has a constitutional right to a complete and
correct charge of the law, so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390
(Tenn. 2011); see also State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v.
Garrison, 40 S.W.3d 426, 432 (Tenn. 2000)). Accordingly, trial courts have the duty to
give “a complete charge of the law applicable to the facts of the case.” State v.
Davenport, 973 S.W.2d 283, 287 (Tenn. Crim. App. 1998) (citing State v. Harbison, 704
S.W.2d 314, 319 (Tenn. 1986)). “Whether jury instructions are sufficient is a question of
law appellate courts review de novo with no presumption of correctness.” State v. Clark,
425 S.W.3d 268, 295 (Tenn. 2014).
In this case, the trial court issued the pattern jury instruction for felony murder,
instructing the jury, in pertinent part: “For you to find the [D]efendant guilty of this
offense, the [S]tate must have proven beyond a reasonable doubt the existence of the
following essential elements: (1) that the [D]efendant, or one for whom the [D]efendant
is criminally responsible, unlawfully killed the alleged victim[.]” This instruction
conforms to the Tennessee Pattern Jury Instruction for first degree felony murder. 7
Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. § 7.03 (12th ed. 2018).
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Initially, the State attempted to try the Defendant and Mr. Parker together, but the
trial court denied the State’s motion for joinder. The trial court noted that the State had
“proven that each defendant is charged with the accountability for each offense included
in the [i]ndictment and could have been indicted under the same indictment,” but
nonetheless found that the Defendant had established prejudice from a joint trial and
denied joinder.
At trial, the State presented evidence that both the Defendant and Mr. Parker were
charged with the victim’s murder. The State also presented evidence that the Defendant
and Mr. Parker were together the night in question, and there was no activity between the
Defendant’s and Mr. Parker’s cell phones during the time frame of the murder. The
Defendant’s claim that the “trial court provided a means by which the jury could find
[him] guilty on a theory that ne[ither] party believed to be true” is without merit. It is
apparent that the State believed that the Defendant and Mr. Parker were jointly
responsible for the victim’s murder but was prohibited from trying them together. The
State presented evidence indicating that both men were suspected in the victim’s death, as
well as witness testimony that the Defendant said he was with Mr. Parker on the night of
the murder.
Regardless, the State presented evidence that the Defendant admitted to at least
three people that he had accidentally shot the victim while attempting to steal tools and
scrap metal from her property. The State also presented evidence that the Defendant was
in possession of the murder weapon on the night in question. The Defendant admitted to
police that he had stolen the gun from his grandmother. The inclusion of the language
“or one for whom the [D]efendant is criminally responsible” was mere surplusage. The
evidence established that the Defendant shot the victim, and the State did not argue that
the Defendant was criminally responsible for anyone else’s actions.
Furthermore, the trial court did not issue a jury instruction on criminal
responsibility but instead specifically advised the jury:
The only question you must answer as to each of these counts is whether
the State proved beyond a reasonable doubt that he committed that offense.
It’s not up to you to decide whether any other person is guilty of any other
crime or of those crimes. The question of the possible guilt of others
should not enter your thinking when you decide whether the State has
proven beyond a reasonable doubt that this defendant committed the crimes
with which he is charged.
The jury was explicitly advised that it was to base its findings on the Defendant’s
actions alone. The jury instructions, read as a whole, fairly submitted the legal issues and
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did not mislead the jury as to the applicable law. See State v. Faulkner, 154 S.W.3d 48,
58 (Tenn. 2005). The Defendant is not entitled to relief on this issue.
II. Sufficiency
The Defendant argues that the evidence is insufficient to sustain his convictions.
He contends that Mr. Parker was the one who killed the victim and that the witnesses
who testified that the Defendant confessed to the murder were not credible.
When the sufficiency of the convicting evidence is challenged on appeal, the
relevant question of the reviewing court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604
(Tenn. Crim. App. 1992).
A criminal offense may be established entirely by circumstantial evidence. State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight
to be given the circumstantial evidence and the extent to which the circumstances are
consistent with the guilt of the defendant and inconsistent with his innocence. State v.
James, 315 S.W.3d 440, 456 (Tenn. 2010).
All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). It is not the role of this court to
reweigh or reevaluate the evidence, nor to substitute our own inferences for those drawn
from the evidence by the trier of fact. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
“A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant
has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
First degree felony murder is the “killing of another committed in the perpetration
of or attempt to perpetrate any . . . robbery, burglary, [or] theft[.]” Tenn. Code Ann. §
39-13-202(a)(2). Second degree murder is defined as “[a] knowing killing of another[.]”
Id. § 39-13-210(a)(1).
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The Defendant’s challenge to the sufficiency of the convicting evidence rests on
his trying to show that it was instead Mr. Parker who killed the victim, as well as giving
reasons why the witnesses who testified that the Defendant confessed to them were
unreliable. However, there is ample evidence from which the jury could determine that
the Defendant was guilty, and credibility determinations and resolution of any conflicts in
the evidence are matters for the jury.
The murder was believed to have occurred after 8:00 p.m. when a family member
spoke to the victim but before midnight when the 911 call was made reporting the
shooting. Ashley Clem, the mother of the Defendant’s child, and Jacqueline Clem,
Ashley’s mother, both testified that the Defendant brought the gun to their house the
evening of the murder between 8:30-9:00 p.m. When the Defendant returned the
following morning, he said that he had sold the gun. He also said that he had been out all
night with Mr. Parker and Mr. Ellis. Mr. Ellis testified that he bought the gun from the
Defendant sometime after midnight and that the Defendant was acting “kind of out of the
ordinary, kind of crazy-eyed.” The Defendant told Mr. Foster that he and Mr. Parker
were “strung out” on drugs and had gone to the victim’s residence to steal metal when
they panicked and accidentally shot the victim. The Defendant’s cell phone records
showed a decrease in activity during the timeframe that investigators believed the victim
to have been murdered, and there was no activity between the Defendant’s and Mr.
Parker’s cell phones during the period in which the victim was likely murdered. The
Defendant also confessed to fellow inmates Glenn Johnson and John Anderson at other
times.
The Defendant argues that the evidence establishes that Mr. Parker committed the
murder, pointing to testimony that Mr. Parker was “disheveled near the crime scene
before and just after the murder.” However, the Defendant’s claim that the evidence
establishes Mr. Parker’s guilt and the Defendant’s innocence is without merit.4 Rather,
the evidence strongly establishes that the Defendant was in possession of the murder
weapon during the time of the murder. Any evidence potentially placing Mr. Parker with
the Defendant during the timeframe in question does not exonerate him of guilt.
Moreover, the Defendant’s attempt to discredit the three inmate witnesses does not
entitle him to relief. The credibility of witnesses, the weight of their testimony, and the
reconciliation of conflicts in the evidence are matters entrusted to the jury as the trier of
fact. State v. Evans, 108 S.W.3d 231, 236-37 (Tenn. 2003). The Defendant thoroughly
cross-examined the inmate witnesses, as well as presented two rebuttal witnesses to
4
The Defendant argues that the State “flatly reject[ed]” the notion that the Defendant and Mr. Parker
worked together by “refus[ing] to prosecute Mr. Parker and [the Defendant] jointly[.]” (Def. Brief pg. 63)
However, this argument is a mischaracterization by the Defendant because the record shows that the
Defendant successfully defeated a motion for joinder by the State.
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testify that one of those witnesses was not credible. However, the jury evaluated the
testimony of these witnesses and, nevertheless, accredited their accounts of the
Defendant’s confessing to shooting the victim while trying to steal her property. The
confessions that these witnesses summarized were consistent regarding how and why the
shooting occurred.
In the light most favorable to the State, the evidence shows that the Defendant
admitted to three people that he shot the victim while trying to steal tools and scrap
metal; that the Defendant possessed the murder weapon during the time the victim was
killed; and his telephone records showed a decrease in activity during that time period.
The evidence is sufficient to support the Defendant’s felony murder and second degree
murder convictions.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
____________________________________
ALAN E. GLENN, JUDGE
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