# State of Tennessee v. Shelby Isaac

> Court of Criminal Appeals of Tennessee · November 13, 2019

URL: https://www.frixlaw.com/law-library/cases/4455777

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** November 13, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Timothy L. Easter
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4455777

## How later opinions describe it (automated extraction)

- stating “identity of the perpetrator is an essential element of any crime”

## Opinion text

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
___________________________________

No. W2018-00871-CCA-R3-CD
___________________________________

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
- 18 -
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
- 19 -
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.
- 21 -
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4455777. Public record. Not legal advice.