State of Tennessee v. Shelby Isaac

11/13/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

June 4, 2019 Session

STATE OF TENNESSEE v. SHELBY ISAAC

Appeal from the Criminal Court for Shelby County

No. 16-01734 James M. Lammey, Judge

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No. W2018-00871-CCA-R3-CD

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Defendant, Shelby Isaac, was convicted of two counts of second degree murder, one

count of reckless homicide, and one count of criminally negligent homicide after a jury

found her guilty of killing three victims. The trial court sentenced Defendant to a total

effective sentence of thirty years. On appeal, Defendant challenges the sufficiency of the

evidence supporting her convictions, the admission of a photograph of an opened uterus,

the admission of a witness’s gang affiliation, the admission of a witness’s jail phone call

as a prior consistent statement, the admission of a photograph of Defendant standing next

to a man making a hand gesture that Defendant claims is a gang sign, the trial court’s

denial of Defendant’s motion for a continuance, the trial court’s denial of Defendant’s

motion for mistrial, the propriety of the prosecutor’s rebuttal closing argument, and the

trial court’s imposition of consecutive sentencing. After a thorough review, we affirm

the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., joined. THOMAS T. WOODALL, J., filed a separate concurring opinion.

Lauren M. Fuchs (on appeal and at trial) and William Massey (at trial), Memphis,

Tennessee, for the appellant, Shelby Isaac.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Glenn Baity, Gavin

Smith, and Jamie Kidd, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

Factual and Procedural Background

A Shelby County grand jury indicted Defendant for the first degree felony murder

of Eddie Tate committed during the perpetration of an aggravated robbery in Count One,

the first degree premeditated murder of Eddie Tate in Count Two, the first degree

premeditated murder of Edwina Thomas in Count Three, and the first degree

premeditated murder of the unborn child of Edwina Thomas in Count Four. Victoria

Seay was also indicted with four violations of Tennessee Code Annotated section 39-11-

411, accessory after the fact, in Counts Five through Eight. The following facts were

adduced at trial.

Mr. Tate worked part time at his mother’s hair weave business, Virgin Hair for

You. Most of the business’s sales were “out of the car” and primarily cash transactions.

He charged fifty dollars for a twelve-inch “bundle” of hair and up to one-hundred dollars

for a thirty-inch “bundle” of hair. Most of their customers would purchase at least three

bundles at a time. If something was wrong with the hair, the business would allow

returns and exchanges but not a return for a refund. From time to time, Mr. Tate would

take Ms. Thomas, his girlfriend, with him when he would sell hair.

Ms. Seay, a friend of Defendant, testified on behalf of the State. She knew

Defendant by her nickname, “Shay.” According to Ms. Seay, on January 21, 2016, the

night before the shooting, she and Defendant spent the night at the home of Gary Dotson.

Ms. Seay and Defendant left Mr. Dotson’s house between the hours of 12:00 p.m. and

2:00 p.m. As they left, Defendant told Ms. Seay that she was going to buy some hair.

Ms. Seay gave Defendant a ride to a Texaco gas station in Ms. Seay’s silver Mitsubishi

Mirage. When Ms. Seay parked, Defendant exited the passenger side of the vehicle and

walked over to a McDonald’s. There, Defendant purchased some hair for $250 from Mr.

Tate. Defendant returned to Ms. Seay’s car, and Ms. Seay drove to Sycamore Lake

Apartments where Defendant lived. Ms. Seay realized that she did not have her “hair

bag” so she could not sew in Defendant’s weave. They left and went back to Ms. Seay’s

house, which was about ten to twelve minutes away. Their attempt to retrieve Ms. Seay’s

“hair bag” was thwarted because neither Ms. Seay’s mother nor Ms. Seay’s grandmother

was home, and Ms. Seay did not possess a key to her own house. She and Defendant

then headed back toward Defendant’s apartment.

On the way, Defendant mentioned to Ms. Seay that she would like to get three

more “bundles” of hair and that she would like to get her money back. Defendant called

the man that she bought the hair from, Mr. Tate, and she asked him to meet her at

Sycamore Lake Apartments. Ms. Seay parked her car in the parking lot, and Defendant

exited the car and walked over to Mr. Tate’s car. Meanwhile, Ms. Seay got out of the car

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too. From Ms. Seay’s vantage point, she could only see Mr. Tate in his car holding three

bundles of hair. According to Ms. Seay, the only people at the scene were Defendant,

Mr. Tate, Ms. Thomas, and herself. Before Ms. Seay could get over to Defendant’s

location, she heard a gunshot and ran back to her car. As she turned to run, Ms. Seay saw

a black gun in Defendant’s hand. Ms. Seay got inside her car and drove to Deerfield

Apartments. Ms. Seay called Defendant multiple times, and after about five to ten

minutes, Defendant eventually answered. Ms. Seay asked Defendant what had happened,

and Defendant told Ms. Seay to come pick her up in front of the apartments.

Ms. Seay immediately returned to the Sycamore Lake Apartments and picked up

Defendant. According to Ms. Seay, Defendant’s purse and a black jacket were located in

the back seat of Ms. Seay’s car. At trial, Ms. Seay recounted Defendant’s statements

during the car ride to Ms. Seay’s house. She testified, “[Defendant] told me that she shot

the man and that he was dead and that she had shot the lady. And that when the lady

came back - - she had blacked out. And when she came back, then she told her that she

was pregnant.”

As Ms. Seay and Defendant were driving around after the shooting, they went to

pick up Darrion Melvin, whom Ms. Seay calls her “play brother.” At some point, Ms.

Seay’s mother called and asked why the police were at their house. Ms. Seay lied to her

mother about the police and continued driving to Mr. Melvin’s house. Upon arrival,

Defendant entered Mr. Melvin’s residence for “about a minute and a half” and then

returned, according to Ms. Seay. According to Mr. Melvin, Defendant asked him if she

could use the restroom. Mr. Melvin responded, “All right,” and Defendant went to the

restroom in his house, while he and Ms. Seay remained in Ms. Seay’s car. At this point

in time, Mr. Melvin did not notice anything unusual about Defendant.

Ms. Seay and Defendant took Mr. Melvin to run some errands. While Mr. Melvin

was in the car, Ms. Seay spoke with Mr. Dotson on the phone. Mr. Melvin testified he

heard Ms. Seay say to Mr. Dotson, “You can fix your own phone because you just hit a

lick.” Mr. Melvin understood “hitting a lick” to mean robbing someone. Mr. Melvin

further described the conversation inside the car by testifying, “[Ms. Seay’s] mama kept

calling her. She was like, ‘The police at my house’ - - ‘at the house. They need you to

come home.’ I was like, ‘Dang. What’s going on?’ Then [Defendant] was like, ‘Really,

nothing. We got’ - - ‘We was in the apartments last night. They got to shooting.’”

Defendant then turned to Ms. Seay and said, “They ain’t got nothing but your tags, and

you ain’t got to worry about nothing.”

While speaking to Defendant, Mr. Melvin was “checking her” and said, “Dang,

you got your hair done and all that.” Defendant responded, “[Mr. Melvin], shut up before

I shoot you.” Mr. Melvin thought that Defendant was not being serious. Mr. Melvin

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noticed that Ms. Seay was acting strange. Eventually, Ms. Seay dropped Defendant off at

“Craigmont” and dropped Mr. Melvin off at his house.

After Ms. Seay and Defendant left Mr. Dotson’s house “sometime in the mid

morning,” Mr. Dotson had no interaction with Defendant until she returned several hours

later that day. Mr. Dotson observed that Defendant looked “tired.” Defendant was

wearing “a jacket, a shirt, and some blue jeans.” Mr. Dotson saw blood on Defendant’s

jacket and on the thigh of her pants. In Defendant’s back pocket was a “bunch of money,

just balled up.” Defendant took off her clothes and put on a different shirt. She then

walked into Mr. Dotson’s bedroom, laid down a black and pink 9 millimeter Ruger pistol,

lay on his bed, and went to sleep. Mr. Dotson noticed that the magazine of the pistol was

not full. He estimated that there were three rounds in the magazine. Four or five hours

later, Defendant woke up and left. Mr. Dotson did not see her again that day.

At approximately 3:00 p.m. on the day of the shooting, Officer D’Andre Johnson

of the Memphis Police Department (MPD) responded to a shooting call at Sycamore

Lake Apartments. When he arrived at the scene, he found a black male victim, Mr. Tate,

who appeared to be dead. Officer Johnson was notified of a second victim. He found her

in a separate apartment complex in the vicinity of the shooting. He observed that she had

suffered a gunshot wound. The second victim, Ms. Thomas, was “bleeding profusely”

from her left side. The woman was unable to provide Officer Johnson with much

information or even her name and appeared to be in a state of shock. Officer Johnson

also observed a green Honda parked in front of the location where he found the second

victim. An ambulance was called to transport her to receive medical care. After being

transported to a hospital, Ms. Thomas died several hours later.

MPD Sergeant James Smith was designated the case coordinator for this crime.

He responded to a call that “there was a male black that was shot that was still on the

scene deceased, and someone had left in his car.” Once on the scene, Sergeant Smith

spoke with the other responding officers and received information from dispatch that

described a vehicle that had left the scene containing a possible suspect. Sergeant Smith

spoke with multiple witnesses that claimed they saw the events after the shots were fired.

Many of those witnesses testified at trial. From various vantage points, the multiple

witnesses saw one woman get into a silver Mitsubishi and drive away. The witnesses

also saw another woman pull a man out of the driver’s seat of a green Honda and drive

away. Through his investigation, Sergeant Smith discovered that the woman who pulled

the driver out of the car was the second victim, Ms. Thomas, who had also been shot.

However, some of the witnesses’ testimony differed in some respects. Noel

Lopez, a resident of Sycamore Lake Apartments at the time of the shooting, saw a black

male walking toward the Mitsubishi before it left. Mr. Lopez remembered seeing a black

individual running away from the Mitsubishi after the gun shots. Mr. Lopez did not

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remember seeing a male individual with the female that sped off in the silver Mitsubishi,

but he could not be certain. Brenda Davis, another resident of the Sycamore Lake

Apartments, testified she saw “what appeared to be a black man, sort of heavy built,

running, like, away from this car. It seemed like he was jogging.” He was wearing “a

black and red jacket.” According to Ms. Davis, the car, which was “neon green” and

driven by a female, sped away from the man. Ms. Davis “assumed” that this man was the

shooter. However, Ms. Davis later saw the same man in the “black and red jacket” lying

face down in the parking lot. Defense witness Craig Hollis, another resident of the

Sycamore Lake Apartments, testified he saw the same events unfold, but he described the

person that drove away in the green Honda as a young woman, who was wearing “bright-

colored” leggings with a “multi-colored pattern” and a “red toboggan.”

Sergeant Smith was able to identify Ms. Seay as a suspect within an hour or two of

arriving on the scene. The police arrested her and took her to the homicide bureau where

she was put in an interview room and shackled to a bench. Ms. Seay sat in that room for

more than two hours, and officers checked on her periodically. Eventually, Ms. Seay

signed a waiver of rights and began speaking to the police. The police told Ms. Seay that

witnesses had placed her and her car at the scene and then told her that she was being

investigated as a suspect in a first-degree murder case. Around 2:00 a.m., Ms. Seay gave

a statement to the police, which did not implicate Defendant. However, in this statement,

Ms. Seay described Defendant as wearing a black shirt and a burgundy jacket. At trial,

Ms. Seay admitted that her first statement was a lie.

Sometime after the day of her arrest, Ms. Seay contacted the police and gave a

second statement that implicated Defendant. Ms. Seay’s second statement directly

contradicted portions of her first statement, and Ms. Seay admitted to the police that she

had lied while giving her first statement. In this statement, Ms. Seay included that

Defendant was wearing gold, glittery boots.

The call records that Sergeant Smith retrieved duirng his investigation revealed

that there were eight phone calls between Defendant and Mr. Tate on the day of the

shooting. The last number to call Mr. Tate’s phone was Defendant’s. The police

processed both Ms. Seay’s silver Mitsubishi Mirage and Mr. Tate’s green Honda for

evidence. Inside Ms. Seay’s vehicle, the police found a black sweatshirt that had blood

on it. DNA testing revealed that the blood matched Mr. Tate’s DNA. Also found in Ms.

Seay’s vehicle was a styrofoam cup, which contained Defendant’s fingerprint.

Additionally, the police recovered a receipt from the passenger seat of Mr. Tate’s green

Honda that contained Defendant’s fingerprint.

The police recovered several shell casings and bullets from the crime scene.

Special Agent Kasiah Lynch of the Tennessee Bureau of Investigation Firearms

Identification Unit examined six bullets and seven fired cartridge cases as a part of the

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investigation of this case. Special Agent Lynch was able to determine that the 9

millimeter cartridge cases found at the crime scene were “likely” fired from the same

make and model of firearm, but she could not determine whether the cartridge cases had

been fired by the exact same firearm. From her examination of the recovered bullets,

Special Agent Lynch was able to determine that a Ruger firearm was possibly the make

of weapon that fired two of the bullets. The third bullet was in such condition that

Special Agent Lynch could not make any determination as to the type of weapon that

fired the bullet. Special Agent Lynch was ultimately able to determine that only one

firearm was used.

The police also recovered a pair of gold sequined Ugg boots that belonged to

Defendant. MPD Officer Jeffrey Garey conducted the “BlueStar” test for latent bodily

fluid on the boots. Officer Garey testified that the “BlueStar” test will reveal the

presence of blood even if the surface has been cleaned. The test results were negative,

meaning no blood was found on the boots.

Dr. Marco Ross, the Assistant Medical Examiner for Shelby County, examined the

body of Mr. Tate and determined that Mr. Tate had suffered four gunshot wounds, which

were the cause of his death. Dr. Ross also examined the body of Ms. Thomas and

determined that she had suffered a gunshot wound to the abdomen, the left forearm, and

the left upper arm. Dr. Ross determined that the gunshot wounds to the abdomen and left

forearm were the cause of Ms. Thomas’s death. During his examination, Dr. Ross found

that Ms. Thomas was in the first trimester of her pregnancy and that the fetus was six to

seven weeks old. Dr. Ross determined that the fetus died as a result of Ms. Thomas’s

gunshot wounds.

Defendant did not testify. Other than the testimony of Mr. Hollis, Defendant

presented the testimony of her older sister, Christy Isaac, that Defendant and her family

had known Mr. Tate and his family for a long time. She, Defendant, and their mother all

bought hair from Mr. Tate and his brother, Marion, in a “cash only business.” She did

not know if Defendant had ever bought hair from the Tates at Sycamore Lake

Apartments. She stated that Defendant “most definitely” looked the same at trial as she

did in 2016 with the exception that her hair was a bit shorter.

After deliberation, the jury found Defendant guilty of second degree murder in

Count One, second degree murder in Count Two, reckless homicide in Count Three, and

criminally negligent homicide in Count Four. The State filed a motion seeking

consecutive sentencing, arguing that consecutive sentences were warranted because,

“[t]he defendant is a dangerous offender whose behavior indicates little or no regard for

human life, and no hesitation about committing a crime in which the risk to human life is

high.” Also, the State included in its motion a reference to State v. Wilkerson, 905

S.W.2d 933 (Tenn. 1995), alleging that “[c]onsecutive sentences reasonably relate to the

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severity of the offenses committed. . . [and] are necessary in order to protect the public

from further serious criminal conduct by the defendant.” After a sentencing hearing, the

trial court merged Counts One and Two, and sentenced Defendant to twenty-four years in

Count One. Additionally, the trial court sentenced Defendant to four years in Count

Three and two years in Count Four. The trial court ordered consecutive service of all

three sentences for a total effective sentence of thirty years. Defendant filed a motion for

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

Analysis

I. Sufficiency of the Evidence

Defendant argues that the evidence is insufficient to support her convictions

because Ms. Seay was the only witness to testify that Defendant was present at the scene

of the crime. The State claims Defendant is merely asking this Court to reweigh Ms.

Seay’s credibility, something that this Court cannot do. Also, the State maintains that the

evidence is sufficient. We agree with the State.

Well-settled principles guide this Court’s review when a defendant challenges the

sufficiency of the evidence. The relevant question is whether any rational trier of fact

could have found the accused guilty of every element of the offense beyond a reasonable

doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The

jury’s verdict replaces the presumption of innocence with one of guilt; therefore, the

burden is shifted onto the defendant to show that the evidence introduced at trial was

insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

The prosecution is entitled to the “‘strongest legitimate view of the evidence and to all

reasonable and legitimate inferences that may be drawn therefrom.’” State v. Goodwin,

143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.

2000)). Questions concerning the “‘credibility of the witnesses, the weight to be given

their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the

jury as the trier of fact.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting

State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “‘A guilty verdict by the jury,

approved by the trial court, accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the prosecution’s theory.’” Reid, 91 S.W.3d at 277

(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). 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. Id. The standard of review is the

same whether the conviction is based upon direct evidence, circumstantial evidence, or a

combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

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To establish the elements of second-degree murder, the State had to prove that

Defendant knowingly killed Mr. Tate. See T.C.A. § 39-13-210(a)(1). A person acts

knowingly with respect to the result of their conduct “when the person is aware of that

the conduct is reasonably certain to cause the result.” T.C.A. § 39-11-106(a)(20). For

reckless homicide, the State had to prove that Defendant recklessly killed Ms. Thomas.

See T.C.A. § 39-13-215(a). A person acts recklessly “when the person is aware of, but

consciously disregards a substantial and unjustifiable risk that the circumstances exist or

the result will occur.” T.C.A. § 39-11-106(a)(31).

To establish criminally negligent homicide of Ms. Thomas’s unborn child, “the

State must prove three elements beyond a reasonable doubt: (1) criminally negligent

conduct on the part of the accused; (2) that proximately causes; (3) a person’s death.”

State v. Briggs, 343 S.W.3d 106, 109-10 (Tenn. Crim. App. 2010); see T.C.A. § 39-13-

212. For purposes of the homicide statutes, another person “include[s] a human embryo

or fetus at any stage of gestation in utero.” T.C.A. § 39-13-214(a). Criminally negligent

conduct is defined as “when the person ought to be aware of a substantial and

unjustifiable risk that the circumstances exist or the result will occur.” T.C.A. § 39-11-

106(a)(4). “The risk must be of such a nature and degree that the failure to perceive it

constitutes a gross deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the accused person’s standpoint[.]”

Id. The defendant must fail to perceive a substantial and unjustifiable risk in order to be

found criminally negligent. Briggs, 343 S.W.3d at 110. “Whether a defendant failed to

perceive the risk must be determined under the circumstances as viewed from the

defendant’s standpoint.” Id. (citing T.C.A. § 39-11-106(a)(4)). A defendant’s failure to

perceive the risk must be a “‘gross deviation from the standard of care.’” Id. (quoting

T.C.A. § 39-11-106(a)(4)).

In addition to establishing the above elements for each crime, the State must prove

that Defendant was the perpetrator beyond a reasonable doubt. See State v. Rice, 184

S.W.3d 646, 662 (Tenn. 2006) (stating “identity of the perpetrator is an essential element

of any crime”). “The credible testimony of one identification witness is sufficient to

support a conviction if the witness viewed the accused under such circumstances as

would permit a positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537

(Tenn. Crim. App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim.

App. 1993)). 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)).

Defendant essentially asks this Court to reevaluate Ms. Seay’s credibility on

appeal. That is not our role, but rather, the role of the jury. Id.; Reid, 91 S.W.3d at 277.

Ms. Seay’s testimony established that Defendant pulled the trigger on the gun that killed

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Mr. Tate, Ms. Thomas, and Ms. Thomas’s unborn child. Ms. Seay’s testimony was

corroborated by the fact that Defendant’s fingerprint was present on a receipt that was

recovered for Mr. Tate’s green Honda. Additionally, Mr. Dotson testified that Defendant

entered his home with blood on her clothes and a Ruger pistol that was not fully loaded.

A Ruger pistol is one of the types of pistol that could have fired the bullets recovered

from the crime scene. This evidence is sufficient for a rational juror to conclude beyond

a reasonable doubt that Defendant committed second-degree murder, reckless homicide,

and criminally negligent homicide.1

II. Evidentiary Issues

Defendant argues that the trial court committed multiple errors when determining

the admission of evidence throughout the trial. “Admission of evidence is entrusted to

the sound discretion of the trial court, and a trial court’s ruling on evidence will be

disturbed only upon a clear showing of abuse of discretion.” State v. Robinson, 146

S.W.3d 469, 490 (Tenn. 2004). An abuse of discretion occurs when the trial court

“applied an incorrect legal standard, or reached a decision which is against logic or

reasoning that caused an injustice to the party complaining.” State v. Shuck, 933 S.W.2d

662, 669 (Tenn. 1997).

A. Admission of Photograph of Fetus

Defendant argues that the trial court abused its discretion when it admitted a

photograph of a fetus, the unborn child of Ms. Thomas. Defendant contends that the

inflammatory and prejudicial nature of the photograph substantially outweighed the

probative value of the photograph as evidence. The State replies that the trial court

properly exercised its discretion in admitting the autopsy photograph of the fetus because

it assisted in the jury’s understanding of the medical examiner’s testimony, which

explained the that the fetus was also a victim of the shooting. We agree with the State.

Photographs must be relevant in order to be admitted into evidence. State v.

Thomas, 158 S.W.3d 361, 394 (Tenn. 2005). “‘Relevant evidence’ means evidence

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

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

evidence.” Tenn. R. Evid. 401. Said differently, “evidence is relevant if it helps the trier

of fact resolve an issue of fact.” Neil P. Cohen, et al., Tennessee Law of Evidence §

1

Because Defendant did not challenge any element other than Ms. Seay’s identification of

Defendant as the shooter in her initial appellate brief, the majority opinion addresses only the sufficiency

of the testimony related to Defendant’s identity as the shooter. See Tenn. Ct. Crim. App. R. 10(b). This

Court requested supplemental briefing on the issue of whether the State had proven the mens rea for the

criminally negligent homicide of Ms. Thomas’s unborn child. That issue is more fully discussed in the

concurring opinion.

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4.01[4], at 4-8 (6th ed. 2011). However, relevant evidence may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice[.]” Tenn.

R. Evid. 403. Evidence unfairly prejudices a defendant when it suggests a decision an

improper or emotional basis. State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978).

When considering the danger of unfair prejudice that resulted from the

introduction of a photograph of a homicide victim’s body, we consider the following:

[T]he value of the photographs as evidence, that is, their accuracy and

clarity, and whether they were taken before the corpse was moved, if the

position and location of the body when found is material; the inadequacy of

testimonial evidence in relating the facts to the jury; and the need for the

evidence to establish a prima facie case of guilt or to rebut the defendant’s

contentions.

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

probative value and relevance outweigh their prejudicial effect.” Id. (citing

Commonwealth v. Scaramuzzino, 317 A.2d 225, 226 (Pa. 1974)). If the defendant offers

to stipulate to the facts shown in the photograph or if the defense does not dispute the

testimony that the photographs illustrate, the State’s burden is often difficult to meet. Id.

(citing People v. Chavez, 329 P.2d 907, 916 (Cal. 1958); Poe v. Commonwealth, 301

S.W.2d 900, 902-03 (Ky. 1957); People v. Falkner, 209 N.W.2d 193,194 (Mich. 1973);

State v. Bucanis, 138 A.2d 739, 743-44 (N.J. 1958)). “As a general rule, where medical

testimony adequately describes the degree or extent of an injury, gruesome and graphic

photographs should not be admitted.” State v. Collins, 986 S.W.2d 13, 21 (Tenn. Crim.

App. 1998). In the past, we have acknowledged that “the question of whether a

photograph is or is not graphic or gruesome is often a subjective determination, and what

may be graphic or gruesome to one person may not be so to another.” State v. Curtis

Scott Harper, No. E2014-01077-CCA-R3-CD, 2015 WL 6736747, at *14 (Tenn. Crim.

App. Nov. 3, 2015), no perm. app. filed. However, at times, there is no reasonable

question about the graphic and gruesome nature of a photograph. Id.

In this case, Defendant filed a motion in limine to exclude the photographs of the

fetus, and the trial court heard argument on the matter before trial began. During

argument, Defendant offered to stipulate that “Ms. Edwina Thomas was six to eight

weeks pregnant” and that the unborn child “died.” If Defendant’s proposed stipulation

had been entered, it would have certainly lessened the probative value of the photograph

of the fetus, but it would not have erased its probative value.

In his testimony explaining how he determined that Ms. Thomas was pregnant, Dr.

Ross described the pictures as follows, “This is the opened uterus. This here represents

the amniotic sack. And the fetus is down here in the lower part of the sack.” The picture

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depicts the “opened uterus” after it had been removed during an autopsy. The “opened

uterus” is lying by itself on white background with a ruler to give the picture proper

scale. We note that the photograph entered into evidence does not depict anything that

resembles a complete human lifeform. Rather, to the untrained eye, it looks like a

removed internal organ or a piece of human flesh. Considering Dr. Ross’s testimony

while reviewing the picture, it doesn’t appear that the fetus is even visible in the picture.

Thus, we are left to consider whether a picture of Ms. Thomas’s “opened uterus”

should have been excluded pursuant to Tennessee Rule of Evidence 403. We conclude

that the trial court did not abuse its discretion by admitting the photograph because the

photograph aided Dr. Ross in explaining how he determined that Ms. Thomas was

pregnant, and the danger of unfair prejudice from a depiction of her “opened uterus” does

not outweigh the probative value of the photograph. Unlike the photographs in Curtis

Scott Harper, which depicted a more fully developed fetus with numerous severe

wounds, including a severed head, 2015 WL 6736747, at *14, the photograph in this case

was not graphic or gruesome in a way that would unfairly prejudice Defendant because it

does not depict anything that would pluck the heartstrings of the jury and cause them to

depart form the law and decide the case on an emotional basis.

B. Mr. Dotson’s Gang Affiliation

Defendant argues that the trial court erred when it found that Mr. Dotson’s

affiliation with the “Fast Cash” gang was irrelevant. Further, Defendant argues that the

exclusion of Mr. Dotson’s gang affiliation violated her right to present a defense and her

right to cross-examine an adverse witness. The State argues that Defendant has waived

her constitutional arguments because she raises the issue for the first time on appeal and

that the trial court did not abuse its discretion in finding that Mr. Dotson’s gang affiliation

was irrelevant. We agree with the State

Defendant’s motion for new trial and Defendant’s amended motion for new trial

contain no mention of a violation of Defendant’s right to present a defense or

Defendant’s right to cross-examine an adverse witness. Therefore, any argument

regarding the exclusion of this piece of evidence in relation to either of those rights is

waived because it is being raised for the first time on appeal. See State v. Adkisson, 899

S.W.2d 626, 635 (Tenn. Crim. App. 1994) (“The party cannot assert a new or different

theory to support the objection in the motion for a new trial or in the appellate court.”).

During opening statements, defense counsel mentioned that Mr. Dotson was a

member of the “Fast Cash” gang. The State objected and the trial court ruled that defense

counsel should “[s]tay away from mentioned anyone in a gang until such time as it’s

relevant in this case.” During a cross-examination of a Ms. Thomas’s sister, defense

counsel attempted to show a good faith basis for alleging that Mr. Dotson was a member

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of the “Fast Cash” gang by entering a police report stating that Mr. Dotson was a “known

member” of “Fast Cash.” At this juncture, the trial court ruled that Mr. Dotson’s gang

affiliation was irrelevant. Tennessee Rule of Evidence 401 states that relevant evidence

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

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

evidence.” We fail to see how Mr. Dotson’s alleged gang membership has any tendency

to make it more or less likely that Defendant shot Mr. Tate and Ms. Thomas. Therefore,

we hold that the trial court did not abuse its discretion when it excluded Mr. Dotson’s

alleged gang affiliation.

C. Ms. Seay’s Jail Phone Call

Defendant argues that the trial court erred by admitting Ms. Seay’s jail phone call

as a prior consistent statement because the statements were made after Ms. Seay had a

reason to fabricate a story. The State contends that Ms. Seay’s jail phone call was

properly admitted as a prior consistent statement because the jail phone call was made

before Ms. Seay entered a memorandum of understanding with the State and on cross-

examination, defense counsel had insinuated that Ms. Seay had fabricated her testimony

in exchange for favorable treatment. We agree with the State.

“The Tennessee Rules of Evidence do not specifically cover rehabilitation of

impeached witnesses, but Tennessee law is well-established.” Neil P. Cohen et al.,

Tennessee Law of Evidence, § 8.05[5], n. 170 (6th ed. 2011). A prior statement of a

witness, whether consistent or inconsistent with their trial testimony, is hearsay if it is

offered for the truth of the matter asserted. State v. Braggs, 604 S.W.2d 883, 885 (Tenn.

Crim. App. 1980) (citing Mays v. State, 495 S.W.2d 833 (Tenn. Crim. App. 1972);

Johnson v. State, 596 S.W.2d 97 (Tenn. Crim. App. 1979)). Generally, a prior consistent

statement may not be introduced to rehabilitate an impeached witness. Braggs, 604

S.W.2d at 885. However, three exceptions to the general rule exist: (1) a prior consistent

statement is admissible to rehabilitate a witness when insinuations of recent fabrication

have been made or when deliberate falsehood has been implied; (2) a prior consistent

statement is admissible after a witness has been impeached with a prior inconsistent

statement that suggests the witness fabricated testimony or testified based upon a faulty

recollection; (3) a prior consistent statement is admissible after a witness has been asked

specific questions that make a prior statement appear to be inconsistent with the witness’s

trial testimony. State v. Robert William Ward, No. M2017-02269-CCA-R3-CD, 2019

WL 1436151, at *22-23 (Tenn. Crim. App. Apr. 1, 2019), perm app. denied (Tenn. July

18, 2019); see State v. Boyd, 797 S.W.2d 589, 593 (Tenn. 1990); State v. Hodge, 989

S.W.2d 717, 725 (Tenn. Crim. App. 1998); State v. Meeks, 867 S.W.2d 361, 374 (Tenn.

Crim. App. 1993); State v. Benton, 759 S.W.2d 427, 433 (Tenn. Crim. App. 1988).

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In cases where the first exception is invoked, like the case at hand, a prior

consistent statement is allowed to show that the witness testified consistently with a prior

statement made at a time when the witness had no incentive to lie or fabricate a story.

Robert William Ward, 2019 WL 1436151, at *22 (citing State v. Sutton, 291 S.W. 1069,

1070 (Tenn. 1927)). In order for a prior consistent statement to be admissible, the

witness’s testimony must have been attacked to the point that rehabilitation is necessary.

Id. (citing Hodge, 989 S.W.2d at 725). Statements used for the purpose of rehabilitation

are not hearsay by definition because they are not being used to prove the truth of the

matter asserted. Cohen et al., supra, § 8.01[9]. When a prior consistent statement is

admitted, a trial court must, upon request, instruct the jury that the prior consistent

statement cannot be used as proof of the truth of the matter asserted in the statement.

Robert William Ward, 2019 WL 1436151, at *23.

Essentially, this issue boils down to one question: when did Ms. Seay have an

incentive to lie or fabricate a story? However, that is a preliminary factual determination

made by the trial court prior to the admission of a prior consistent statement. “When

called upon to resolve factual issues as predicates to the application of a hearsay rule

exception, the trial court may necessarily make credibility determinations and utilize

factual inferences, and in such a situation, the appellate court should defer to the trial

court’s finding of such facts.” State v. Gilley, 297 S.W.3d 739, 761 (Tenn. Crim. App.

2008). The factual findings of a trial court are binding upon an appellate court unless the

evidence in the record preponderates against them. State v. Berrios, 235 S.W.3d 99, 103

(Tenn. 2007). Defense counsel argued to the trial judge that the prior consistent

statement offered by the State was made after Ms. Seay had an incentive to lie or

fabricate a story, and the trial court implicitly rejected that factual argument when it

decided to admit the prior consistent statement. The record does not preponderate against

the trial court’s implicit finding that the prior consistent statement was made before Ms.

Seay had a motive to lie or fabricate a story. Therefore, the trial court did not abuse its

discretion by admitting Ms. Seay’s jail phone call.

D. Failure to Redact Photograph

Defendant claims that the trial court erred by failing to redact an unknown male

from the background of the photograph that Ms. Seay used to identify Defendant.

Defendant argues that this was unfairly prejudicial because the unknown male was

making “gang signs.” The State replies that the trial court properly balanced the

probative value of the photograph with the danger of unfair prejudice. The trial court

found no prejudicial effect resulting from the admission of the photograph and probative

value in using the photograph to identify Defendant. We agree with the State.

As we said above, relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice[.]” Tenn. R. Evid. 403. The

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probative value of the photograph that was admitted as Exhibit 13 is derived from the fact

that Ms. Seay used this photograph to identify Defendant on January 23, 2016. As

redacted for trial, the photograph depicts only Defendant’s upper body and head, and

Defendant is standing in front of a man who’s right hand is held up with his index finger

at approximately forty-five degrees from straight and his remaining fingers

approximately ninety degrees from straight. The meaning of that hand sign is unknown

to this Court, if the hand sign possesses any meaning at all. Furthermore, Defendant has

not presented any evidence explaining the meaning of that hand sign. Therefore, for our

consideration, the photograph simply depicts a man with his hand raised. We fail to see

how this unfairly prejudiced Defendant. Therefore, the trial court did not abuse its

discretion by admitting the photograph without redacting the man with his hand raised.

III. Continuance

Defendant argues that the trial court erred by not granting Defendant’s motion for

a continuance and by allowing Mr. Dotson to testify when the State failed to notify

Defendant of its intent to call Mr. Dotson as a witness until the first day of trial. The

State claims that Defendant knew of Mr. Dotson, as evidenced by the attempts by

Defendant’s investigator to contact Mr. Dotson. Further, the State argues that the trial

court properly exercised its discretion, and the State contends that Defendant has failed to

prove that she received an unfair trial or show that the outcome of her trial would have

been different had the continuance been granted. We agree with the State and hold that

the trial court properly exercised its discretion.

“A motion for continuance is addressed to the sound discretion of the trial judge

and his ruling on the motion will not be disturbed in the absence of an abuse of discretion

to the prejudice of the defendant.” State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)

(citing State v. Strouth, 620 S.W.2d 467, 472 (Tenn. 1981)). An abuse of discretion

occurs when a trial court’s failure to grant a continuance denied the defendant a fair trial

or when one could reasonably conclude that a different result would have occurred had

the continuance been granted. Id.

Tennessee Code Annotated section 40-17-106 directs the district attorney general

to list the names of the witnesses that it intends to call at trial on the indictment. The

statute’s purpose is to prevent a surprise witness at trial. State v. Demontre Chavez

Brown, No. M2013-02091-CCA-R3-CD, 2014 WL 3748569, at *8 (Tenn. Crim. App.

July 30, 2014), perm. app. denied (Tenn. Dec. 17, 2014). However, our supreme court

has stated that section 40-17-106 is “directory only and does not necessarily disqualify a

witness whose name does not appear on the indictment from testifying.” State v. Harris,

839 S.W.2d 54, 69 (Tenn. 1992) (citing State v. Street, 768 S.W.2d 703, 710-11 (Tenn.

Crim. App. 1988)). In order to obtain relief, the defendant must show “prejudice, bad

faith, or undue advantage” as a result of the State’s failure to provide the witness’s name

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is a timely manner. Id. The prejudice suffered by a defendant must result from the

untimeliness of the disclosure of the witness’s name and not merely from the testimony

of the witness. Demontre Chavez Brown, 2014 WL 3748569, at *8 (citing State v.

Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim. App. 1996)). We also note that Tennessee

Rule of Criminal Procedure 16 does not require nor authorize pretrial discovery of the

names and addresses of the State’s witnesses. Id. (citing State v. Martin, 634 S.W.2d

639, 643 (Tenn. Crim. App. 1982)).

In the pre-trial discussion, it was brought to the trial court’s attention that the State

was calling a witness, Mr. Dotson, that it had not previously disclosed to Defendant and

that the State was taking a statement from Mr. Dotson while that discussion was ongoing.

The prosecutor revealed that Mr. Dotson’s cellphone was in the car that belonged to Ms.

Seay. Further, the prosecutor claimed that Defendant was aware of Mr. Dotson because

she knew about the recovery of his cellphone. Further, defense counsel admitted that

their investigator had spoken to Mr. Dotson over the phone, but Mr. Dotson refused to

talk to the investigator. Defense counsel insisted that this last minute investigation by the

State prevented them from adequately preparing a defense.

The trial court did not abuse its discretion by denying Defendant’s request for a

continuance. Just because the State finally made contact with Mr. Dotson on the first day

of trial does not mean that Mr. Dotson was a surprise witness. Defense counsel was

aware of the existence of Mr. Dotson and had even attempted to contact Mr. Dotson

during an independent investigation. Defendant failed to prove that she was prejudiced

by an untimely disclosure made by the State. Additionally, there is no evidence that the

State acted in bad faith or prevented the defense team from interviewing Mr. Dotson.

Ultimately, we see no basis for the conclusion that the outcome would have been

different had a continuance been granted.

IV. Motion for Mistrial

Defendant argues that the trial court erred when it did not grant Defendant’s

motion for a mistrial in response to Mr. Melvin’s testimony that Defendant said she

would shoot Mr. Melvin. The State points out Defendant’s delay in moving for a mistrial

and argues that the trial court properly exercised its discretion when it denied

Defendant’s motion. We agree with the State that the trial court properly exercised its

discretion.

Our supreme court summarized the law regarding appellate review of a trial

court’s denial of a motion for mistrial by stating the following:

“The law is well-settled that the decision of whether or not to enter a

mistrial rests within the sound discretion of the trial court. This Court will

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not interfere with the trial court’s decision absent a clear abuse of discretion

on the record.” State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002).

“Normally, a mistrial should be declared only if there is a manifest

necessity for such action.” State v. Saylor, 117 S.W.3d 239, 250 (Tenn.

2003). “In other words, a mistrial is an appropriate remedy when a trial

cannot continue, or a miscarriage of justice would result if it did.” State v.

Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). “The purpose for

declaring a mistrial is to correct damage done to the judicial process when

some event has occurred which precludes an impartial verdict.” State v.

Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). The party

seeking a mistrial has the burden of establishing its necessity. State v.

Banks, 271 S.W.3d 90, 137 (Tenn. 2008).

State v. Bell, 512 S.W.3d 167, 187 (Tenn. 2015). When determining whether the trial

court should have granted a mistrial based upon testimony that was presented to the jury,

we consider three nonexclusive factors: “(1) whether the State elicited the testimony, or

whether it was unresponsive; (2) whether the trial court offered and gave a curative jury

instruction; and (3) the relative strength or weakness of the State’s proof.” Id. at 188

(quoting State v. Nash, 294 S.W.3d 541, 547 (Tenn. 2009)).

Here, the State did not elicit the testimony from Mr. Melvin. Mr. Melvin

volunteered this information on cross-examination by defense counsel. In the argument

on the motion for mistrial, defense counsel even said that Mr. Melvin had been instructed

by the State not to testify that Defendant had said that she would shoot him. No curative

instruction was given to the jury, and the trial court determined that the comment was not

very prejudicial because of Mr. Melvin’s demeanor. The trial court perceived that Mr.

Melvin took Defendant’s comment as a joke. Additionally, the strength of the State’s

proof overwhelms this minor aside offered by Mr. Melvin. Therefore, the trial court did

not abuse its discretion when it denied Defendant’s motion for a mistrial.

V. Prosecutor’s Closing Argument

Defendant argues that the prosecutor intentionally mislead the jury or misstated

the evidence, expressed a personal belief or opinion as to the truth or falsity of the

evidence, injected broader issues than the guilt or innocence of Defendant, and

intentionally referred to or argued facts outside the record. Defendant concedes that no

contemporaneous objections were made in the trial court and that plenary review of the

issue is waived. However, Defendant requests plain error review. See Tenn. R. App. P.

36(a). The State argues that there is no plain error because no clear and unequivocal rule

of law was breached, Defendant failed to establish that she did not waive the issue for

tactical reasons, and consideration is not necessary to do substantial justice. We agree

with the State.

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In order to be granted plain error relief, Defendant bears the burden of establishing

the following five factors:

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

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

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

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

justice.

State v. Minor, 546 S.W.3d 59, 67 (Tenn. 2018). “If a defendant fails to establish any of

these criteria, an appellate court must deny relief under the plain error doctrine, and an

appellate court need not consider all criteria when the record demonstrates that one of

them cannot be established.” Id.

Closing argument is “a valuable privilege that should not be unduly restricted.”

Terry v. State, 46 S.W.3d 147, 156 (Tenn. 2001). Closing arguments “have special

importance in the adversarial process,” allowing the parties “to present their theory of the

case and to point out the strengths and weaknesses in the evidence to the jury.” Banks,

271 S.W.3d at 130. Attorneys “should be given great latitude in both the style and the

substance of their arguments.” Id. at 131. However, “a prosecutor’s closing argument

must be temperate, must be based on the evidence introduced at trial, and must be

pertinent to the issues in the case.” Id. Although not exhaustive, this Court has

recognized five general categories of improper statements during the prosecution’s

closing arguments: (1) intentionally misstating the evidence or misleading the jury as to

the inferences it may draw; (2) expressing personal beliefs or opinions as to the truth or

falsity of any testimony or evidence or the guilt of the defendant; (3) inflaming or

attempting to inflame the passions or prejudices of the jury; (4) injecting issues broader

than the guilt or innocence of the defendant; or (5) arguing or referring to facts outside

the record that are not matters of common knowledge. See State v. Goltz, 111 S.W.3d 1,

6 (Tenn. Crim. App. 2003). However, “[a]n improper closing argument will not

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

outcome of the trial to the defendant’s prejudice.” Banks, 271 S.W.3d at 131.

First, Defendant takes issue with the prosecutor saying, “And so the sweatshirt

does not belong to Gary Dotson, contrary to what [Defense Counsel] said. There is no

proof, there’s no witness, that said that that was Gary Dotson’s sweatshirt. None. Look

at your notes.” Defendant claims this was contrary to the evidence presented at trial and

points to the following questions and answers during the cross-examination of Sergeant

Smith at trial:

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Q. Now, during the course of this investigation, you knew that a man

named Gary Dotson, his name had come up?

A. His name had come up with the print identified on the iPhone. That’s

correct.

Q. Did his name also come up in connection with the sweatshirt?

A. The name – I don’t – I don’t recall his specific name coming up with

the sweatshirt. It seemed like the name Gary came up as being associated

with Victoria.

Q. So it just came back – it just come back that it – the name Gary only

came back with the sweatshirt?

A. Yes, ma’am. That’s correct.

Defendant also points to statements made by a prosecutor during a pre-trial discussion

about the State calling Mr. Dotson as a witness. In that discussion, a prosecutor said,

“[A] sweatshirt also that belonged to Gary Dotson had this [D]efendant’s – has the

victim’s, rather, blood on it.” At another time, a prosecutor said “the sweatshirt belonged

to him,” and the trial court inquired, “Do we know that the sweatshirt belonged to

him[?]” The prosecutor responded, “Yes. That’s why she sent it off.”

The answers given by Sergeant Smith are inconsistent. First, he doesn’t remember

a specific name associated with the sweatshirt, but next, he agrees that Mr. Dotson’s

name was associated with the sweatshirt. From the proof put on at trial, it is at best

unclear if the sweatshirt belonged to Mr. Dotson. Thus, Defendant has failed to prove

that the prosecutor intentionally misstated the evidence or mislead the jury, and

Defendant has failed to prove that a clear and unequivocal rule of law was breached.

While it is disturbing that the prosecutor stated that the sweatshirt belonged to Mr.

Dotson outside of the presence of the jury and then stated the opposite during rebuttal

closing argument, we need not address the ethical implications of this disparity because

we do not perceive the statements as being so inflammatory or improper that it affected

the outcome of the trial.

Next, Defendant points to the prosecutor saying, “And so [Defense Counsel] says

well, they didn’t find any blood or mud on my client’s boots. [Defendant] wasn’t

arrested until February the 6th, 2016, a few weeks after this shooting. Of course they

wouldn’t find anything.” Defendant claims that this statement contradicts Officer

Garey’s testimony that the BlueStar test should have detected blood on Defendant’s boots

after the lapse of time that occurred even if the boots had been cleaned. Officer Garey

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only stated that the BlueStar test should detect blood after it had been cleaned off. He did

not say that the BlueStar test would detect blood that had been cleaned off or that the

BlueStar test always detects blood that had been removed. As such, Defendant has failed

to prove that the prosecutor misstated the evidence in the case by insinuating that

Defendant cleaned her boots between the day of the crime and the day that she was

arrested. Furthermore, we do not perceive the statements as being so inflammatory or

improper that it affected the outcome of the trial, and no clear and unequivocal rule of

law was breached when the prosecutor made the statements.

Defendant also claims that the prosecutor expressed a personal belief when saying,

“You know, poor Gary Dotson. He just left his fingerprint in a car on a phone that

probably had been in that car several days. But just because his print . . . they, at least

according to the Defense, he’s an automatic suspect, even though he had nothing to do

with the killing.” We view this statement as a rebuttal of Defendant’s theory that Mr.

Dotson was the perpetrator and not an expression of a personal belief of the prosecutor,

and even still, the statements would not have affect the outcome of the trial. Thus, no

clear and unequivocal rule of law was breached.

Defendant argues that the prosecutor injected a broader issue than innocence or

guilt by saying, “Now, this is not just [Defendant’s] day in court. This is also Eddie

Tate’s day in court. This is also Edwina Thomas’s day in court.” Defendant also points

to the prosecutor saying, “With a verdict of guilty on all four of these counts, you can

write the final chapter to the story of Edwina Thomas and Eddie Tate by finding her

guilty as charged.” We agree that these statements tend to deviate from the guilt or

innocence of Defendant. Such an argument is similar to the argument this Court found

improper in State v. Jonathan C. Buckner, No. M2016-01162-CCA-R3-CD, 2017 WL

3476068, at *13 (Tenn. Crim. App. Aug. 14, 2017), perm. app. denied (Tenn. Dec. 6,

2017), where the prosecutor asked the jury to do the victim a “favor” by finding

Defendant guilty. We find the argument made by the prosecutor to write the “final

chapter” of the victims’ story to be improper. Like we advised in Jonathan C. Buckner,

the trial court should have interjected, admonished the prosecutor, and instructed the

jurors accordingly. However, in light of the ample evidence of Defendant’s guilt, we do

not perceive the statements as being so inflammatory or improper that it affected the

outcome of the trial, and we conclude that plain error relief is not warranted because none

of Defendant’s substantial rights were affected.

Defendant contends that the prosecutor intentionally referred to or argued facts

outside of the record by saying, “You know, there’s one thing we learn as children, is that

we should accept our responsibility. You know, the choices that we make, we have to

bear the responsibility for them.” Put simply, we conclude that this generic statement

about taking responsibility for one’s actions does not fall within the ambit of the term

“facts outside the record.” The prosecutor’s statement did not refer to a fact, but rather, a

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simple anecdote. Therefore, the prosecutor’s conduct was not improper, and no clear and

unequivocal rule of law was breached.

VII. Cumulative Error

Defendant also argues that the cumulative effect of the errors in this case warrant

relief. Our supreme court has described the cumulative error doctrine as follows:

The cumulative error doctrine is a judicial recognition that there may be

multiple errors committed in trial proceedings, each of which in isolation

constitutes mere harmless error, but which when aggregated, have a

cumulative effect on the proceedings so great as to require reversal in order

to preserve a defendant’s right to a fair trial.

State v. Herron, 461 S.W.3d 890, 910 (Tenn. 2015) (quoting State v. Hester, 324 S.W.3d

1, 76-77 (Tenn. 2010)). Since there was only one error by the trial court that we have

already determined did not affect the outcome of the trial, there are not multiple errors to

aggregate for the purpose of the cumulative error doctrine.

VIII. Consecutive Sentencing

Defendant claims that the trial court failed to properly consider the factors found

in State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), when imposing consecutive

sentences and that the trial court simply imposed consecutive sentencing because the

court believed that Defendant should have been convicted for first degree murder on all

counts. The State argues that the trial court properly exercised its discretion by imposing

consecutive sentences and that while the trial court did not explicitly mention the second

Wilkerson factor, it did provide numerous reasons for imposing consecutive sentencing.

Generally, we review the imposition of consecutive sentencing using an abuse of

discretion standard accompanied by a presumption of reasonableness. State v. Pollard,

432 S.W.3d 851, 859 (Tenn. 2013). However, the trial court is only afforded a

presumption of reasonableness “if it has provided reasons on the record establishing at

least one of the seven grounds listed in Tennessee Code Annotated section 40-35-

115(b).” Id. at 861. To impose a consecutive sentence, a trial court must find one of the

following grounds by a preponderance of the evidence:

(1) The defendant is a professional criminal who has knowingly devoted

the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

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(3) The defendant is a dangerous mentally abnormal person so declared by

a competent psychiatrist who concludes as a result of an investigation prior

to sentencing that the defendant’s criminal conduct has been characterized

by a pattern of repetitive or compulsive behavior with heedless indifference

to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or

no regard for human life and no hesitation about committing a crime in

which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant’s undetected sexual activity,

the nature and scope of the sexual acts and the extent of the residual,

physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). “Any one of these grounds is a sufficient basis for the imposition

of consecutive sentences.” Pollard, S.W.3d at 862 (citing State v. Dickson, 413 S.W.3d

735, 748 (Tenn. 2013)). However, if a trial court chooses to base the imposition of

consecutive sentencing on ground (4), the “dangerous offender” classification, then the

trial court must also conclude that the aggregate sentence is “‘reasonably related to the

severity of the offenses’” and “‘necessary in order to protect the public from further

criminal acts.’” Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938).

This Court has two options if the trial court has failed to properly consider the Wilkerson

factors on the record: “(1) conduct a de novo review to determine whether there is an

adequate basis for imposing consecutive sentences; or (2) remand for the trial court to

consider the requisite factors in determining whether to impose consecutive sentences.”

Id. at 864.

Here, the trial court decided to run Defendant’s sentences consecutively based

upon ground (4) and sufficiently addressed his determination that Defendant was a

dangerous offender whose behavior indicates no regard for human life. However, the

trial court did not take the next step and address the factors set forth in Wilkerson.

Accordingly, we elect to conduct a de novo review to apply the Wilkerson factors for

imposing consecutive sentences.

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Defendant’s actions took three lives: Mr. Tate’s, Ms. Thomas’s, and Ms.

Thomas’s unborn child’s. Defendant took those lives in a brutal fashion by riddling Mr.

Tate’s car with six bullets. When run consecutively, her total effective sentence is only

thirty years. Given the tremendous severity of the offenses, we conclude that a sentence

of thirty years is reasonable. Additionally, a thirty-year sentence is necessary to protect

the public from Defendant. She killed three people, and from the record we can only

surmise that she did so because she wanted a refund for her hair weave. That type of

behavior is gravely dangerous, and Defendant must be incarcerated to protect the public

from Defendant’s actions.

Conclusion

For the aforementioned reasons, we affirm the judgments of the trial court.

______________________________

TIMOTHY L. EASTER, JUDGE

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