State of Tennessee v. Cortez Lebron Sims

08/28/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 25, 2019 Session

STATE OF TENNESSEE V. CORTEZ LEBRON SIMS

Appeal from the Criminal Court for Hamilton County

No. 295685 Barry A. Steelman, Judge

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No. E2018-01268-CCA-R3-CD

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The Defendant, Cortez Lebron Sims, was convicted by a Hamilton County jury of one

count of first degree premeditated murder, three counts of attempted first degree murder,

and one count of employing a firearm during the commission of a dangerous felony. The

trial court imposed a sentence of life for the first degree murder conviction as well as

concurrent sentences of twenty-five years for each attempted first degree murder

conviction and a consecutive sentence of six years for the employing a firearm

conviction. On appeal, the Defendant argues that the trial court erred by: (1) denying the

Defendant’s motion for a change of venue; (2) admitting evidence related to a

photographic lineup and an unavailable witness’s prior identification of the Defendant;

(3) admitting a gang validation form showing the Defendant’s gang membership; (4)

admitting a jail phone call between the Defendant and a third party; (5) admitting

evidence of a gun and shell casings that were later determined to be unrelated to this case;

(6) admitting a bloody onesie worn by the infant victim in this case; and (7) admitting

evidence related to gang violence and an on-going gang feud. Upon our review of the

record, we determine that the trial court did not commit reversible error and affirm the

judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Brennan M. Wingerter, Knoxville, Tennessee, and Joshua P. Weiss, Chattanooga,

Tennessee (on appeal); F. Lee Ortwein and Clancy J. Covert, Chattanooga, Tennessee (at

trial), for the appellant, Cortez Lebron Sims.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant

Attorney General; Neal Pinkston, District Attorney General; and Lance W. Pope and

Kevin Brown, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

In the early morning hours of January 7, 2015, police officers responded to a 911

call about a shooting at an apartment in College Hill Courts in Chattanooga. Talitha

Bowman was found deceased. Marcell Christopher, Bianca Horton, and Ms. Horton’s

fifteen-month-old daughter, Z.H., were injured. Two days later, the Defendant, who was

17 years old at the time, was arrested in Knoxville. After a transfer hearing on March 5,

2015, the Defendant was transferred from Juvenile Court to be tried as an adult in

Criminal Court. On July 15, 2015, the Defendant was indicted for one count of

premeditated first degree murder, three counts of attempted first degree murder, and three

counts of employing a firearm during the commission of a dangerous felony. The State

later dismissed two counts of employing a firearm during the commission of a dangerous

felony, and the Defendant was convicted as charged of the remaining counts of the

indictment by a Hamilton County jury.

Because the Defendant does not challenge the sufficiency of the convicting

evidence, we will only briefly outline the evidence supporting his convictions to give

context to the evidentiary and procedural issues raised on appeal. Ms. Horton passed

away prior to trial, and Mr. Christopher adamantly refused to testify at the trial. The trial

court declared them both to be unavailable witnesses and allowed the State to admit into

evidence their testimony from the transfer hearing. See Tenn. R. Evid. 804. That

testimony established that on the night of January 6, 2015, Ms. Horton was at her College

Hill Courts apartment with her children, her friend Ms. Bowman, and her boyfriend Mr.

Christopher, who also went by the nickname “Baby Watts.” Ms. Horton and Mr.

Christopher were sharing a bedroom while Ms. Bowman was sharing a bedroom with

Ms. Horton’s fifteen-month-old daughter, Z.H.

At some point during the night, Ms. Bowman went downstairs to answer a knock

at the front door. Ms. Bowman called up the stairs, “Baby Watts, somebody want[s]

you.” Ms. Bowman came up the stairs followed by the person she had allowed into the

house, who both Ms. Horton and Mr. Christopher identified as the Defendant. Although

the Defendant was wearing a hoodie, both Ms. Horton and Mr. Christopher testified that

they could see his face. Mr. Christopher recognized the Defendant because they had

previously been housed together in a juvenile detention facility in Knoxville, and Ms.

Horton recognized the Defendant because she had previously seen him with a group of

people at the mall.

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The Defendant stood at the landing at the top of the stairs, reached his arm into the

room where Ms. Bowman and Z.H. were, and fired multiple shots. Mr. Christopher

threw Ms. Horton to the floor. The Defendant then turned and fired several more shots

into the bedroom where Ms. Horton and Mr. Christopher were located. One of the shots

struck Ms. Horton’s left arm. Mr. Christopher was struck on the left side of his chest by

his heart as well as on his stomach and his side. Ms. Horton eventually made her way

into the other room. She discovered that Ms. Bowman was dead and that Z.H. had been

shot in the back, paralyzing her. The medical examiner later determined that Ms.

Bowman had been shot twice and that she bled to death from damage to her heart, lungs,

and liver.

Ms. Horton called 911 shortly after 1:00 a.m. One of the first officers on the scene

was Officer James Avery, a criminal investigator for the Chattanooga Housing Authority.

Officer Avery was wearing a body camera on his shoulder. The video recording depicted

Z.H. being carried down the stairs by another officer. Ms. Horton was kneeling over the

body of Ms. Bowman, and Officer Avery asked her to go downstairs as well. Mr.

Christopher was still lying on the floor of the other bedroom being attended to by first

responders. Officer Avery asked who shot them, and Mr. Christopher repeatedly said

“Cortez Sims.” When Officer Avery spoke to Ms. Horton, she said that she did not know

the name of the person who shot them but that she could identify him if she saw his

picture.

The surviving victims were taken to Erlanger Hospital for treatment. While Z.H.

was in surgery, Officer William Salyers collected her blood-stained onesie from her

hospital room. Investigator Christopher Blackwell, the lead investigator on the case,

spoke to Ms. Horton at the hospital, and Ms. Horton provided a description of the

suspect. Investigator Blackwell had another officer prepare a photographic lineup to

present to Ms. Horton. Investigator Blackwell later took out juvenile attachments against

the Defendant, and fugitive investigators were eventually able to locate and arrest the

Defendant in Knoxville. About a week after the shooting, Investigator Blackwell was

able to speak to Mr. Christopher in the hospital. Mr. Christopher identified the shooter as

“Awax,” which was known to be the Defendant’s nickname.

Officer Caleb Brooks, a crime scene investigator, processed the apartment and

collected evidence. Officer Brooks testified that there was no sign of forced entry to the

front door. Officer Brooks collected a total of nine shell casings and five projectiles from

the upstairs landing and rooms. Ballistics testing by the Tennessee Bureau of

Investigation (TBI) later determined that all of the shell casings were fired from the same

nine-millimeter handgun and all of the projectiles were fired from the same nine-

millimeter handgun. Officer Brooks also responded to the home of Charles Toney, the

Defendant’s ex-stepbrother, on Talladega Avenue to collect a nine-millimeter handgun

and shell casings found there. However, subsequent ballistics testing by the TBI

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determined that the gun recovered from Talladega Avenue did not match the shell casings

or projectiles found in the College Hill Courts apartment.

Investigator Jeremy Winbush, a former gang investigator for the Chattanooga

Police Department who at the time of trial worked on a task force with the Federal

Bureau of Investigation, testified as an expert in gang member validation and gang

investigations. Investigator Winbush testified that the Defendant was a validated member

of the Athens Park Bloods. Investigator Winbush explained that the Defendant’s

nickname “Awax” was composed of the letter “A” for Athens Park and the term “wax,”

which was slang for killing or hurting someone to handle a problem.

According to Investigator Winbush, at the time of the shooting in this case, there

was an on-going feud between the Athens Park Bloods and the Bounty Hunter Bloods, of

which Mr. Christopher was known to be a member. The feud began with a fight at a

nightclub in December of 2013 between members of these two gangs. Investigator

Winbush then discussed several shooting incidents believed to be related to this feud that

occurred throughout 2014 and into the beginning of 2015, which are discussed in further

detail in the analysis section of this opinion. Of particular relevance to the Defendant, on

February 24, 2014, the Defendant’s mother was shot outside of her home, and the shell

casings were later matched to a gun recovered in the possession of Cornelius “Poo”

Birdsong, the leader of the Bounty Hunter Bloods in Chattanooga. On October 27, 2014,

the Defendant posted a picture on his Facebook page of another Athens Park Blood

member who had been killed that same day by a member of the Bounty Hunter Bloods.

Additionally, on January 1, 2015, just six days before the shooting in this case, Deaunte

“Ta Ta Blood” Dean, a member of the Athens Park Bloods with whom the Defendant

was friends on Facebook, was shot and killed through the front door of his home.

Investigator Winbush testified that Mr. Christopher’s name came up, among several

others, as a possible suspect in the Dean murder.

The State introduced through Investigator Winbush a recording of a March 2016

jail phone call between the Defendant, who was in custody, and Mr. Birdsong. The

Defendant identified himself at the beginning of the call by the nickname “Awax.”

Throughout the call, Mr. Birdsong used the term “Blood” and other terms associated with

the gang. Most of the call was Mr. Birdsong explaining that he did not condone the feud

and wanted to call a truce with Athens Park because both gangs are “different tribes of

the same people,” meaning different subsets of the Bloods gang. Mr. Birdsong also said

that he did not approve of Mr. Christopher being a “snitch” because “when a [racial slur]

do[es] something to you and you survive[,] you keep that [expletive] in the street[.]” The

Defendant denied being involved in this shooting and told Mr. Birdsong that Mr.

Christopher was lying. Mr. Birdsong said that he would try to get to Mr. Christopher to

encourage him to recant his identification of the Defendant. The Defendant said he did

not want anyone to threaten Mr. Christopher.

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During cross-examination of Investigator Winbush, the defense entered into

evidence the gang validation form and photographs of Vontelle “Yung West” Haddox, an

associate of the Tree Top Pirus who also lived in College Hill Courts. Investigator

Winbush agreed that in the audio-recording of Ms. Horton’s transfer hearing testimony, it

sounded like she testified that Ms. Bowman said, “Baby Watts, Yung West wants you,”

even though the transcript said that the name was inaudible. In rebuttal, the State called

Mr. Haddox and his girlfriend Bria Jones to testify that they spent the night of January 6,

2015, together at a motel and that they did not leave to go to College Hill Courts. Mr.

Haddox denied knowing Mr. Christopher, having a feud with him, or being involved in

the shooting in this case.

Analysis

I. Change of Venue

The Defendant argues that the trial court erred in denying his motion for a change

of venue because, “due to the extensive and pervasive pretrial publicity” surrounding this

case, particularly after the death of Ms. Horton, it was “highly unlikely [the Defendant]

could receive a fair trial in Hamilton County[.]” The State responds that the Defendant

has failed to provide an adequate record to establish that the trial court abused its

discretion in denying the motion.

Generally, a criminal defendant must be tried in the county where the offense was

committed. Tenn. R. Crim. P. 18(a). However, a trial court may order a change of venue

“when a fair trial is unlikely because of undue excitement against the defendant in the

county where the offense was committed or for any other cause.” Tenn. R. Crim. P.

21(a). The decision whether to grant a defendant’s motion for change of venue rests

within the sound discretion of the trial court and will not be reversed on appeal absent an

abuse of discretion. State v. Sexton, 368 S.W.3d 371, 387 (Tenn. 2012); State v. Howell,

868 S.W.2d 238, 249 (Tenn. 1993). “The mere fact that jurors have been exposed to

pretrial publicity will not warrant a change of venue,” nor will prejudice “be presumed on

the mere showing of extensive pretrial publicity.” State v. Rogers, 188 S.W.3d 593, 621

(Tenn. 2006) (internal citations omitted). “[I]n order to obtain relief on a claim that the

trial court improperly denied a motion for a change of venue, a ‘defendant must

demonstrate that the jurors who actually sat were biased or prejudiced against him.’”

Sexton, 368 S.W.3d at 387 (quoting Rogers, 188 S.W.3d at 621).

On June 9, 2016, the Defendant filed a “Motion for Change of Venue and/or

Sequestration of the Jury,” asserting that there had been extensive local and national

media coverage of this incident, the on-going gang violence in Chattanooga, and the

murder of Ms. Horton, which was speculated to be retaliation for her testifying against

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the Defendant. On November 11, 2016, the Defendant filed a supplemental motion for

change of venue. Although there is a minute entry indicating that the trial court heard the

motion on January 4, 2017, and took the matter under advisement, there is no transcript

of the January hearing in the record on appeal. The Defendant filed a second

supplemental motion on March 21, 2017. After a hearing on March 30, 2017, the trial

court again took the matter under advisement, stating that it would address pretrial

publicity through jury questionnaires and voir dire. Neither the completed jury

questionnaires nor the transcript of voir dire is in the record on appeal. Instead, the trial

transcript indicates that after twelve jurors and two alternates were selected and “duly

accepted by both sides,” the trial court denied the motion for change of venue, stating that

“[t]he [c]ourt is satisfied that the parties have been able to select a jury that is sufficiently

free from undue influence.” Because the Defendant has not included the transcript of

voir dire in the appellate record, we must presume that the empaneled jurors were fair and

impartial and that the trial court did not abuse its discretion in denying the Defendant’s

motion for a change of venue. See State v. Crenshaw, 64 S.W.3d 374, 387 (Tenn. Crim.

App. 2001) (citing State v. Burton, 751 S.W.2d 440, 451-52 (Tenn. Crim. App. 1988)).

The Defendant is not entitled to relief on this issue.

II. Photographic Lineup

The Defendant raises two issues related to the photographic lineup presented to

Ms. Horton and her subsequent identification of the Defendant. First, he argues that Ms.

Horton’s in-court identification of the Defendant during the transfer hearing was tainted

by an unduly suggestive photographic lineup and was unreliable. Second, he argues that

Investigator Blackwell’s trial testimony regarding the creation and presentation of the

lineup should have been excluded as irrelevant or unduly prejudicial. We shall address

each issue in turn.

A. In-Court Identification by Bianca Horton

A conviction based upon an in-court identification of the defendant by an

eyewitness, after that eyewitness made an out-of-court identification, will only be set

aside if the out-of-court “identification procedure was so impermissibly suggestive as to

give rise to a very substantial likelihood of irreparable misidentification.” Simmons v.

United States, 390 U.S. 377, 384 (1968). To determine whether the identification

procedure violated a defendant’s right to due process, we apply the two-part test

announced in Neil v. Biggers, 409 U.S. 188 (1972). First, we must determine whether the

identification procedure was unduly or unnecessarily suggestive. Id. at 198. If the

identification procedure is determined to be unduly suggestive, we must then determine

whether, under the totality of the circumstances, the witness’s identification was reliable

despite the undue suggestion. Biggers, 409 U.S. at 199. However, if an identification

procedure is not unduly suggestive, we need not apply the totality of the circumstances

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test to determine reliability. See State v. Biggs, 211 S.W.3d 744, 749 (Tenn. Crim. App.

2006); State v. Butler, 795 S.W.2d 680, 686 (Tenn. Crim. App. 1990).

On appeal, the Defendant argues that the photographic lineup was unduly

suggestive because Investigator Blackwell was familiar with the Defendant before he

showed the lineup to Ms. Horton and that her identification was not otherwise reliable

because it had been tainted by hearing the Defendant’s name repeated at the crime scene.

Although there is a minute entry in the record indicating that the trial court heard and

overruled the Defendant’s motion to suppress Ms. Horton’s identification in January

2017, there is no transcript of that hearing in the record on appeal. As the appellant in

this case, the Defendant bears the burden to prepare an adequate record for appellate

review. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). Thus, there is nothing

in the record concerning this issue except the actual photographs shown to Ms. Horton,

which were subsequently introduced as an exhibit at trial. From our review of the

photographs presented to Ms. Horton, we disagree with the Defendant’s contention that

his photograph was “grossly dissimilar” with regard to the skin tone of the other subjects

so as to render the photographic lineup unduly suggestive. See State v. Edwards, 868

S.W.2d 682, 694 (Tenn. Crim. App. 1993) (holding that subjects must be “grossly

dissimilar” before a lineup is deemed impermissibly suggestive based on the photographs

alone); see also State v. Donald Prescott, No. W2012-02454-CCA-R3-CD, 2014 WL

1464179, at *8 (Tenn. Crim. App. Apr. 11, 2014) (citing State v. Binette, 33 S.W.3d 215,

217 (Tenn. 2000)) (“Since viewing the photospread in order to reach a conclusion of

whether or not it is unduly suggestive does not involve a credibility determination, this

court is just as capable as the trial court to review the evidence and draw its own

conclusions.”), no perm. app. filed. The Defendant is not entitled to relief on this issue.

B. Testimony Related to Creation and Presentation of Photographic Lineup

The parties had agreed prior to trial that Ms. Horton’s out-of-court identification

of the Defendant from the photographic lineup was inadmissible hearsay. However, prior

to Investigator Blackwell’s trial testimony, the State informed the trial court that it

intended to ask whether he presented a photographic lineup to Ms. Horton, ask about the

procedures he followed, and introduce a copy of the photographs presented in the lineup

as an exhibit. The Defendant objected on the basis that the jury would be able to infer

that Ms. Horton identified the Defendant. The trial court asked the State if the proposed

evidence was probative, to which the State responded that “[t]he steps that [Investigator

Blackwell] takes as the lead investigator in the investigation . . . to make sure that he’s

right . . . in identifying the suspect that he charges are hugely relevant to his

investigation,” especially in light of the fact that Ms. Horton had died and would not be

able to testify. The Defendant argued that Ms. Horton’s out-of-court identification was

inadmissible hearsay, “and letting these pictures in is boot-strapping that hearsay and her

identification which was made during that statement.”

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The trial court ruled as follows:

I find that it’s probative because it goes to what the investigator did

to try to investigate the case and identify a suspect. I find that it’s

prejudicial because the jury might assume that at that time she identified

Cortez Sims, which she did, but the jury can’t know now because that in

and of itself would be hearsay, but I find it’s less prejudicial because Cortez

Sims was identified by her at a later time, and therefore, that limits the

prejudice that the jury might - - that might result if the jury did, in fact,

suspect that she must have identified him at that particular time.

I could give an instruction to the jury that they’re not to draw any - -

they’re not to speculate about how she responded to the photo lineup, but

that might draw more attention to the negative for this defense.

Again, I mean, I find that it’s probative because it shows what the

detective did. Police get in trouble all the time for not doing what they’re

supposed to do, and I understand why the State’s trying to do that, that

they’re not thorough enough. I find that it’s potentially prejudicial because

of what the jury might speculate about, but she identified him at a later

point anyway.

The trial court stated that it would “allow the jury to at least know that [Investigator

Blackwell] showed a photo lineup” and asked if the Defendant objected to the

photographs, themselves, being admitted. The State argued that if the Defendant was

going to argue misidentification, then the photographs shown to Ms. Horton were

relevant. The Defendant’s counsel agreed that, based on the trial court’s ruling that

Investigator Blackwell would be allowed to testify that he showed Ms. Horton a lineup,

the Defendant’s counsel wanted the photographs to also be admitted as evidence.

During his trial testimony, Investigator Blackwell testified that he went to Erlanger

Hospital to get a statement from Ms. Horton and to determine if she would be willing to

look at a photographic lineup. Investigator Blackwell described the procedure of having

another officer prepare the lineup so that Investigator Blackwell would not be aware of

which photograph was the Defendant’s as well as the process by which photographs are

selected as “fillers.” The lineup introduced into evidence consisted of six full-page

photographs and an instruction sheet. Investigator Blackwell testified that he went over

the instruction page with Ms. Horton and that Ms. Horton looked through each picture

individually. Investigator Blackwell testified that prior to showing Ms. Horton the

lineup, he was aware that there was body camera footage in which the Defendant had

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been identified as the shooter. Investigator Blackwell testified that the “next step” in his

investigation was to take out juvenile attachments against the Defendant.

On appeal, the Defendant argues that the trial court erred in admitting this

evidence related to the photographic lineup because it was both irrelevant and unduly

prejudicial. The Defendant contends that “[i]f [Ms.] Horton’s identification is

inadmissible hearsay, then the fact that a photo lineup was conducted, whether pursuant

to proper procedure or not, could not have had any relevancy at trial.” The Defendant

reiterates the argument he made at trial that the jury would be able to infer that Ms.

Horton identified the Defendant. The Defendant asserts that the steps Investigator

Blackwell took to identify a suspect “is simply a justification for admission of the out-of-

court hearsay identification.” The Defendant argues that because the jury can make the

inference regarding Ms. Horton’s identification, the evidence related to the photographic

lineup was more prejudicial than probative. The State responds that the evidence related

to the photographic lineup was relevant because it “illustrated the investigative process of

the lead detective on the case,” which would “certainly have some tendency to make the

conclusions of the investigation more or less likely[.]” The State asserts that any

prejudice created by the jury’s ability to infer that Ms. Horton identified the Defendant

was reduced by the fact that Ms. Horton identified the Defendant in her transfer hearing

testimony that was subsequently admitted into evidence and played for the jury.

In considering the admissibility of evidence, the trial court must first determine

whether the proffered evidence is relevant. State v. James, 81 S.W.3d 751, 757 (Tenn.

2002). Relevant evidence is defined as “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.

“In other words, ‘evidence is relevant if it helps the trier of fact resolve an issue of fact.’”

James, 81 S.W. 3d at 757 (quoting Neil P. Cohen, et al., Tennessee Law of Evidence §

4.01[4], at 4-8 (4th ed. 2000)). Generally, relevant evidence is admissible, while

irrelevant evidence is inadmissible. Tenn. R. Evid. 402. However, relevant evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury. Tenn. R. Evid. 403. “Rule 403

is a rule of admissibility, and it places a heavy burden on the party seeking to exclude the

evidence.” James, 81 S.W.3d at 757. “In making these decisions, the trial court must

consider the questions of fact that the jury will have to consider in determining the

accused’s guilt as well as other evidence that has been introduced during the course of the

trial.” State v. Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999) (citing State v.

Williamson, 919 S.W.2d 69, 78 (Tenn. Crim. App. 1995)).

“A trial court’s decision to admit evidence based on its relevance will not be

reversed absent an abuse of discretion in admitting the evidence.” State v. Stevens, 78

S.W.3d 817, 847 (Tenn. 2002). An abuse of discretion occurs “when the court applied an

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incorrect legal standard, reached an illogical conclusion, or based its decision on a clearly

erroneous assessment of the evidence or employs reasoning that causes an injustice to the

party complaining.” State v. Davidson, 509 S.W.3d 156, 207 (Tenn. 2016). As recently

explained by the Tennessee Supreme Court, “the abuse of discretion standard of review

does not permit an appellate court to substitute its judgment for that of the trial court,”

and where “‘reasonable minds can disagree with the propriety of the decision,’ the

decision should be affirmed.” State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019)

(quoting State v. Harbison, 539 S.W.3d 149, 159 (Tenn. 2018)).

In this case, the primary factual issue to be resolved by the jury was the identity of

the shooter. Thus, the steps taken by law enforcement in investigating this case would be

“of consequence to the determination of the action” if they made the Defendant’s identity

as the shooter “more probable or less probable than it would be without the evidence.”

Tenn. R. Evid. 401; see State v. Richard Lowell Blanchard, No. M2010-01186-CCA-R3-

CD, 2011 WL 2533753, at *5 (Tenn. Crim. App. June 24, 2011) (stating that even if a

detective’s testimony “was relevant to show how the investigation progressed to the

defendant’s becoming a suspect[, t]he question remains . . . whether the explanation of

the investigation was itself relevant to a material issue,” but concluding that any error

was harmless), perm. app. denied (Tenn. June 12, 2013). Even without Ms. Horton’s

statement either identifying or failing to identify the Defendant, Investigator Blackwell’s

testimony demonstrated the thoroughness of the investigation into the identity of the

shooter even after the identification by Mr. Christopher at the scene, which was made all

the more relevant by the defense’s theory of misidentification. The trial court did not

abuse its discretion in determining that the evidence related to the photographic lineup

was relevant under Rule 401.

The next question is whether the evidence related to the photographic lineup was

substantially more prejudicial than probative under Rule 403. The Defendant has not

argued that Investigator Blackwell’s testimony or the photographic lineup would confuse

or mislead the jury or otherwise cause the jury to decide the case on an improper basis.

Instead, the concern was that the jury would be able to infer from this evidence that Ms.

Horton made an out-of-court statement identifying the Defendant, which would be a form

of indirect hearsay. See State v. Christopher Christian Padgett, No. E2018-00447-CCA-

R3-CD, 2019 WL 2233890, at *6 (Tenn. Crim. App. May 23, 2019), no perm. app. filed.

As explained in one treatise, indirect hearsay is an attempt “to get in hearsay through the

back door” because “even though no words from the [declarant] were actually repeated,”

the jury “will have learned what the [declarant] said.” Id. (quoting Neil P. Cohen et al.,

Tennessee Law of Evidence, § 8.01[11][b] (6th ed. 2011)). However, as found by the trial

court, any risk that the jury would make such an inference was mitigated by the fact that

Ms. Horton’s transfer hearing testimony identifying the Defendant was subsequently

admitted. See Tenn. R. Evid. 804(b)(1). Therefore, even if the trial court erred in

admitting the evidence related to the photographic lineup as a form of indirect hearsay,

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the Defendant has not established that he was unfairly prejudiced. See State v. Heflin, 15

S.W.3d 519, 523 (Tenn. Crim. App. 1999) (holding that error in admitting hearsay was

harmless when “the same evidence was properly admitted” through other testimony).

The Defendant is not entitled to relief on this issue.

III. Gang Validation Form

The Defendant argues that the trial court erred in admitting the Chattanooga Police

Department’s gang validation form that identified the Defendant as a member of the

Athens Park Blood gang. First, the Defendant argues that the form was not admissible

under Rule of Evidence 404(b) because it did not establish clear and convincing proof of

his gang affiliation and because the danger of unfair prejudice outweighed any potential

probative value. Second, the Defendant contends that the gang validation form was

inadmissible hearsay. We shall address each issue in turn.

A. Rule 404(b)

This Court has held that evidence of gang affiliation is character evidence subject

to Tennessee Rule of Evidence 404(b). See, e.g., State v. Shasta Jackson, No. E2014-

01387-CCA-R3-CD, 2015 WL 6756318, at *9 (Tenn. Crim. App. Nov. 5, 2015), perm.

app. denied (Tenn. May 5, 2016); State v. Orlando Crayton, No. W2000-00213-CCA-

R3-CD, 2001 WL 720612, at *3 (Tenn. Crim. App. June 27, 2001), no perm. app. filed.

Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts” is inadmissible if

offered to show a defendant’s “action in conformity with [a] character trait” but may “be

admissible for other purposes.” See also State v. Parton, 694 S.W.2d 299, 654 (Tenn.

1997). “The general rule excluding such evidence is based on the recognition that the

evidence may lead a jury to convict a defendant for an apparent propensity or disposition

to commit a crime regardless of the strength of the evidence concerning the offense on

trial.” Orlando Crayton, 2001 WL 720612, at *3 (citing State v. Bordis, 905 S.W.2d 214,

232 (Tenn. Crim. App. 1995); State v. Tizzard, 897 S.W.2d 732, 743-44 (Tenn. Crim.

App. 1994)).

Such evidence may be admissible for other non-propensity purposes, such as to

establish the defendant’s identity, motive, or intent; to rebut a defense of mistake or

accident; to show a common scheme or plan; or to provide necessary contextual

background or a completion of the story. See Tenn. R. Evid. 404(b), Advisory Comm.

Cmts.; State v. Toliver, 117 S.W.3d 216, 230 (Tenn. 2003); State v. Gilliland, 22 S.W.3d

266, 272 (Tenn. 2000). In order to admit other act evidence for one or more of these

purposes, the following requirements must be met:

(1) The court upon request must hold a hearing outside the jury’s presence;

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(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act to be clear

and convincing; and

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). Rule 404(b) has been described as a rule of exclusion rather than

inclusion, and “[t]rial courts have been encouraged to take a ‘restrictive approach of

[Rule] 404(b) . . . because “other act” evidence carries a significant potential for unfairly

influencing a jury.’” State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014) (quoting State v.

Dotson, 254 S.W.3d 378, 387 (Tenn. 2008)). However, when the trial court has

substantially complied with the requirements of the Rule, as in this case, we will review

the trial court’s decision to admit or exclude the other act evidence under an abuse of

discretion standard. State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). As stated

above, “[a] court abuses its discretion when it applies an incorrect legal standard or its

decision is illogical or unreasonable, is based on a clearly erroneous assessment of the

evidence, or utilizes reasoning that results in an injustice to the complaining party.”

Jones, 450 S.W.3d at 892 (internal quotation and citation omitted).

In this case, the Defendant filed a motion in limine seeking to exclude any

reference to his alleged gang affiliation. The State then filed a notice of intent to admit

such evidence under Rule 404(b) for the non-propensity purposes of establishing identity,

motive, and intent. Specifically, the State alleged that the Defendant, a member of the

Athens Park Bloods, had the motive and intent to shoot Mr. Christopher, a member of the

Bounty Hunter Bloods, because of the on-going feud between the two gangs.

The trial court held a hearing on March 27 and 30, 2017, at which Investigator

Winbush testified as an expert in gang investigations and gang member validation.

Investigator Winbush testified that he was a gang investigator for the Chattanooga Police

Department in January of 2015 and that he was responsible for maintaining the database

of gang validation forms. Investigator Winbush testified that the forms are based on a

national standard for identifying gang members used by the Tennessee Department of

Correction and the police departments for other major cities. The form, which is

completed and updated based on law enforcement interactions with suspected gang

members, assigns points for different indicators of gang association, such as wearing

gang colors, having gang tattoos, associating with known gang members, self-admitting

gang membership, or being named as a gang member by others. Investigator Winbush

- 12 -

testified that a person is validated as a gang member if they have ten points or more,

while a person with less than ten points is considered an associate of the gang.

The Defendant’s validation form, which was completed in October of 2014,

indicated that he had thirteen points based on photographs of the Defendant wearing gang

colors, making gang signs with his hands, and associating with other known gang

members, as well as being named as a gang member in correspondence. In addition to

the gang validation form, the State entered into evidence multiple photographs from the

Defendant’s Facebook account showing the Defendant wearing red and black, flashing

gang signs with his hands, and hanging out with other known gang members, including

the son of the founder of the Athens Park Bloods in Chattanooga. Additionally, the State

introduced into evidence the recorded jail phone call between the Defendant and Mr.

Birdsong, in which both used slang that Investigator Winbush testified was associated

with the Blood gang. Based on all of this evidence and Investigator Winbush’s expert

opinion, the trial court found that there was clear and convincing evidence that the

Defendant was a member of the Athens Park Blood gang. The trial court found that the

Defendant’s gang membership was probative of his identity, motive, and intent based on

the State’s theory that this shooting was part of an on-going feud between rival gangs and

that the potential prejudice did not outweigh the probative value.

On appeal, the Defendant argues only that the admission of the gang validation

form itself violated Rule 404(b). Specifically, the Defendant argues that the validation

form does not establish clear and convincing evidence of gang membership because the

point system used to validate someone as a gang member is “arbitrary and capricious.”

Additionally, the Defendant argues that the form is unduly prejudicial because of the

potential implication that someone with more than ten points “is more entrenched with a

gang or [holds] a higher rank[.]” The Defendant concedes that Investigator Winbush

could testify as to his expert opinion that the Defendant was a member of the Athens Park

Blood gang, but the Defendant asserts that this testimony rendered the validation form

“unnecessary.” The State responds that the Defendant’s argument “misses the mark”

because the validation form was not the only piece of evidence considered by the trial

court in determining whether the Defendant’s gang affiliation had been clearly and

convincingly established. The State also argues that the validation form was not more

prejudicial than probative because it did not contain prejudicial information regarding

other bad acts of the Defendant.

The Defendant does not challenge the trial court’s finding that evidence of his

gang affiliation was probative of the non-propensity issues of identity, motive, and intent.

See Tenn. R. Evid. 404(b)(2). This Court has repeatedly held that evidence of gang

affiliation may be admissible for such purposes. See, e.g., State v. Ronald Eugene

Brewer, Jr., No. E2010-01147-CCA-R3-CD, 2011 WL 2732566, at *17 (Tenn. Crim.

App. July 14, 2011), perm. app. denied (Tenn. Sept. 21, 2011); State v. Justin Mathis,

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No. W2005-02903-CCA-R3-CD, 2007 WL 2120190, at *9 (Tenn. Crim. App. July 20,

2007), perm. app. denied (Tenn. Dec. 26, 2007); State v. Demond Gardner, No. W2002-

00607-CCA-R3-CD, 2003 WL 21488004, at *9 (Tenn. Crim. App. June 26, 2003), perm.

app. denied (Tenn. Dec. 1, 2003).

With regard to the Defendant’s assertion that the gang validation form alone does

not establish clear and convincing evidence of his gang affiliation, we note that Rule

404(b)(3) speaks of the “proof of the other crime, wrong, or act.” The proof of the

Defendant’s affiliation with the Athens Park Bloods consisted not only of the validation

form but also the photographs from the Defendant’s social media, the recorded phone call

with the leader of the rival gang, and Investigator Winbush’s expert opinion about the

Defendant’s use of certain hand gestures and slang words. The trial court thoroughly

considered all of this proof in determining that the Defendant’s gang affiliation was

established by clear and convincing evidence. The Defendant has not established that the

trial court’s assessment of this evidence was clearly erroneous.

Furthermore, the trial court found that the probative value of the gang-affiliation

evidence was not outweighed by the danger of unfair prejudice. See Tenn. R. Evid.

404(b)(4). Only the first page of the validation form, which lists the Defendant’s

demographic information, his gang affiliation, and the number of points assigned in each

category of “gang identifiers,” was admitted at trial. The second page of the validation

form, which explains why points were assigned in each category and includes comments

that the Defendant “has been implicated in a multitude of shootings” and “has been a

constant concern for law enforcement,” was only admitted during the pretrial hearing;

this prejudicial information was not presented to the jury. The Defendant speculates that

the jury could draw prejudicial inferences from the number of points on the Defendant’s

validation form; however, this is not supported by the testimony of Investigator Winbush.

Investigator Winbush testified that at least ten points were required to validate someone

as a gang member, but he did not testify that the points were used to establish someone’s

rank within a gang or that a person with more than ten points was more “entrenched” in

the gang. Significantly, the section on the Defendant’s form for “Gang Rank” is blank.

The trial court did not abuse its discretion in determining that the gang validation form,

along with the other evidence of the Defendant’s gang affiliation, was admissible under

Rule 404(b).

B. Hearsay

The Defendant also argues on appeal that the gang validation form was

inadmissible hearsay because, like a police report, it contains “opinions and conclusions

of law enforcement officers in determining whether a person is a gang member or

associate.” Cf. State v. Marchello Karlando Gossett, No. W2015-02414-CCA-R3-CD,

2017 WL 1163683, at *24 (Tenn. Crim. App. Mar. 28, 2017) (citing McBee v. Williams,

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405 S.W.2d 668, 671 (Tenn. Ct. App. 1966) for the proposition that police reports are

inadmissible hearsay), perm. app. denied (Tenn. Aug. 18, 2017). The State notes that the

record is not clear if the Defendant made this objection in the trial court. When the gang

validation form was introduced at trial, the Defendant’s counsel stated that he was

“reserv[ing] those same objections” that were made “during the hearing before the

admission of these things.” There was no discussion during the March 2017 hearing as to

whether the gang validation form constituted hearsay or would be admissible at trial. In

his brief, the Defendant refers to a comment made by the State during a motion hearing in

January 2017; however, as noted above in the discussion of Ms. Horton’s identification,

the transcript of this hearing is not in the record on appeal. There is nothing in the record

before this Court showing that the Defendant raised a hearsay objection to the validation

form. Thus, this issue has been waived. See Tenn. R. App. P. 36(a); State v. Thompson,

36 S.W.3d 102, 108 (Tenn. Crim. App. 2000) (“This court is extremely hesitant to put a

trial court in error where its alleged shortcoming has not been the subject of a

contemporaneous objection.”).

IV. Jail Phone Call

The Defendant argues that the trial court erred in admitting the recorded jail phone

call between the Defendant and Mr. Birdsong because it contained inadmissible hearsay.

While the Defendant concedes that his own statements in the call are admissible as

admissions by a party-opponent, see Tenn. R. Evid. 803(1.2), he argues that Mr.

Birdsong’s statements were admitted for the truth of the matter asserted, namely the

Defendant’s gang affiliation and the existence of a gang feud, and did not qualify under

any exception to the hearsay rule. The State responds that Mr. Birdsong’s statements

were not admitted for the truth of the matter asserted but to give context for the

Defendant’s statements; thus, they were not hearsay. See State v. Damarkus Lowe, No.

E2017-00435-CCA-R3-CD, 2018 WL 3323757, at *18 (Tenn. Crim. App. July 6, 2018),

perm. app. denied (Tenn. Nov. 15, 2018).

Hearsay is “a statement other than one made by the declarant while testifying at a

trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R.

Evid. 801(c). Generally, hearsay is not admissible unless an exception applies. Tenn. R.

Evid. 802. Although a trial court’s factual findings in ruling on a hearsay objection are

binding on this Court unless the evidence preponderates against them, the question of

whether a statement is hearsay or whether it qualifies for an exception to the hearsay rule

are questions of law, which this Court reviews de novo. Kendrick v. State, 454 S.W.3d

450, 479 (Tenn. 2015).

As an initial matter, we reject the State’s argument on appeal that the statements of

Mr. Birdsong were not admitted for the truth of the matter asserted. Both the recorded

phone call and a transcript thereof were admitted into evidence, and the recording was

- 15 -

played in its entirety while the jury was allowed to follow along with copies of the

transcript. We note that the parties did not request and the trial court did not give a

limiting instruction that the jury could not consider Mr. Birdsong’s statements for the

truth of the matter asserted. The prosecutor then specifically asked Investigator Winbush

to explain several statements contained within the recording:

[Prosecutor]: On page 2 of the transcript . . . . Line 23 to 24, Mr. Birdsong

says, “That’s why we can’t find that [racial slur abbreviation] ass,

bro. We can’t find that [racial slur abbreviation] for [expletive].”

Who’s he referring to?

[Inv. Winbush]: Based on the context of the call, it appears that Mr.

Birdsong is referring to the victim in this case, the victim-witness,

Marcell Christopher.

[Prosecutor]: Point your attention to page 5, lines 17 and 18 and 19. Here

they’re referring to a Bobby, and they say, “That [racial slur

abbreviation] -- he just -- just [expletive] up because that little kid

got killed. You know what I’m saying?” . . . . What’s your opinion

about who they’re talking about there at lines 17, 18 and 19?

[Inv. Winbush]: Well, leading up to this in the call, Mr. Sims refers to

running into Bobby, and Mr. Birdsong confirms that they’re talking

about the same Bobby because he referenced what happened to Mr.

Bobby Johnson’s face when he was arrested. Mr. Sims said he ran

into him in the jail, and he’s saying he wasn’t on his side, and Mr.

Birdsong said the reason why he wasn’t, he was still mad about it, is

because that the kid got killed, and the kid that he’s referring to is his

stepson . . . .

[Prosecutor]: . . . . To page 6, lines 16 and 17, Mr. Birdsong says, “I feel

like I don’t want to keep [expletive] like that going and all of us is

damu.” What does that mean?

[Inv. Winbush]: He’s saying that everyone that’s beefing on both sides,

Bounty Hunter and Athens Park, they’re all damu. “Damu” is a term

they use, a reference that Bloods and also rival gang members refer

to Blood gang members as “damu,” that being because “damu” is the

Swahili word for blood.

[Prosecutor]: On page 9 of the transcript, at the top, lines 1, 2 and 3,

coming over from the last page, Mr. Birdsong says, “You know, like

- 16 -

I told them, [racial slur abbreviation], we ain’t fixing to shoot no

Athens Park [racial slur abbreviation].” . . . . Why would Mr.

Birdsong say that?

[Inv. Winbush]: Well, he’s, he’s referencing that -- and confirmed that

there was a beef, a feud going on between his group, Bounty

Hunters, and the Athens Park Blood members, and he was, based on

the context, saying that because it started when he was in jail, and he

didn’t agree with Blood on Blood or damu on damu, as he refers to;

because he didn’t agree with it, he wasn’t going to tell them and

allow them to shoot any, anyone that was Athens Park Blood.

[Prosecutor]: Anybody under him?

[Inv. Winbush]: That’s correct, if he can influence it.

[Prosecutor]: Page 11 of the transcript, starting at line 5, Mr. Birdsong

says, “I can respect that. I respect that. Me being the big homie,”

and the transcript reads “what.” What is the -- is that confirming

that Mr. Birdsong is the big homie of Watts?

[Inv. Winbush]: That’s correct. He’s saying that he is the big homie. “Big

homie” refers to top dog or leader in charge, and he says that him

being the leader or big homie of Watts. So he’s, he’s acknowledging

and making it known that he is the top dog in charge of the Bounty

Hunter Bloods in Chattanooga.

[Prosecutor]: And is that Watts the same Watts that Baby Watts, Marcell

Christopher, is associated with?

[Inv. Winbush]: That’s correct, it is the same. Throughout the call, he

makes reference to 111, such as 111 percent, basically

acknowledging that he claims the same as Ace Line, 111 Bounty

Hunter Bloods.

[Prosecutor]: . . . . To page 12, line 17, Mr. Birdsong says “Paperwork --

that’s one thing about paperwork, little homie, paperwork don’t lie at

all.” Line 21, Mr. Sims says, “I’m saying have you seen it, though?”

Line 23, Mr. Birdsong says, “What? Talking about that paperwork

with dude, little homie?” Mr. Sims says, “Yeah.” What are they

referring to there?

- 17 -

[Inv. Winbush]: “Paperwork” is known amongst the criminal world,

amongst law enforcement, gang members, as being the affidavit of

complaint or any kind of police documentation that someone’s

mentioned in, whether that be the accused or the accuser, and it is

common practice for anyone who’s mentioned, or if there’s an

allegation of someone being a witness or a victim of a crime, for the

gang to summon paperwork just to verify or confirm if they’re

actually what they call snitching, because it's frowned upon in the

gang.

[Prosecutor]: What person that Mr. Birdsong would have any authority

over would be in Mr. Sims’s paperwork?

[Inv. Winbush]: That would be Marcell, Marcell Christopher. Baby Watts,

him being a little homie or a junior member of the gang, Mr.

Cornelius Birdsong wouldn’t be directly in charge of him, but he,

being the top dog in charge, would be able to have an influence on

him, Mr. Marcell Christopher, for being in someone’s paperwork.

[Prosecutor]: Page 13, in response to that, Mr. Birdsong says, “Yeah, that’s

the first thing they showed me,” in reference to the paperwork.

“Here’s what I told them, though. I said, ‘Hey, Blood man, find that

[racial slur abbreviation] real quick, Blood, and strip him.’” What

does that mean?

[Inv. Winbush]: Well, he’s saying that the first thing that he saw after the

accusation was the paperwork, because like I said, it’s, I mean, it’s

just the number one rule, it’s always summoned after something of

this such, and he’s saying that when he saw it, he disagreed with it

because of Mr. Marcell Christopher stating that Mr. Sims was the

person that shot him. He told them -- “them” being the gang and the

people that’s directly in charge of Mr. Sims [sic] -- to find him and

strip him, basically strip him of his colors, of his flag, because it was

not in accordance with what the gang is supposed to do, which

means not snitching, keeping it in the streets.

[Prosecutor]: Page 13, line 7, same page as before, “I don’t even want that

[racial slur abbreviation] in Chattanooga no more. I don’t care

nothing about his mom or his dad or none of that shit. You know

what I’m saying.” Farther down, lines 16, 17, “So that right there is

going to be a domino effect and I feel like that [racial slur

abbreviation] don’t need to be out there. He needs to be gone for

- 18 -

real. You know what I’m saying.” Who is Mr. Birdsong referring to

there?

[Inv. Winbush]: He’s referring to Mr. Marcell Christopher.

[Prosecutor]: Line 19 is Mr. Sims’s response, he says, “Yeah”; is that

correct?

[Inv. Winbush]: That’s correct.

[Prosecutor]: Page 16, line 17, Mr. Birdsong, “My thing is to get him and

at least -- and if the homies don’t want to do nothing to him, at least

get to him and try to convince this [racial slur abbreviation], hey,

bro, don’t do that, bro. If anything, go in there and say, man, it

wasn’t him, that you wasn’t in your right mind, you blamed the

wrong dude, it wasn’t him, it was three folk dudes.” What does that

mean, Investigator Winbush?

[Inv. Winbush]: He’s basically saying that his strategy is to find Mr.

Marcell Christopher and intimidate and influence him to come into

court and lie and basically say that it wasn’t Cortez Sims, that he

wasn’t in his right mind, and blame someone else, and that, that if,

and only if, the other members of the gang didn’t want to actually

harm him would that be the strategy.

[Prosecutor]: Page 17, lines 2 really through 8, Mr. Birdsong says, “That’s

what I’m trying to get him for, but I believe since he know we

hunting” him -- it says, “we hunting,” and then it says

“unintelligible” there. What does “hunting him” mean?

[Inv. Winbush]: “Hunting” means that they’re actively looking for him, on

the prowl, by any means necessary. They’re knocking on doors,

they’re making it known. Their -- the streets have basically given

him some type of intel that the Bounty Hunter Bloods are looking

for him because they’re not pleased with him snitching, and because

they know -- he -- Marcell Christopher knows that the Bounty

Hunters are looking for him, that he’s hiding, he’s not making

himself present within the city.

[Prosecutor]: Page 18, line 2, Mr. Birdsong, “I give you -- I give you -- I

give you my word as a man, bro, I’m going to try -- I’m trying my

- 19 -

best to get ahold of him so I can stop it. You hear what I’m saying.”

Who is he referring to?

[Inv. Winbush]: Again, he’s referring to Marcell Christopher.

[Prosecutor]: Now, on page 21, Mr. Birdsong says, “I’m 111 percent

official, bro. You need to understand that. I got you and I’m going

to try my best. I’m giving you my word as a man, bro, I’m going to

try my best to stop that.” What does “111 percent” mean?

[Inv. Winbush]: You’ll hear people say, “I’m a hundred percent real or

authentic,” meaning that he’s not telling any lies, he’s a man of his

word. When he puts an emphasize on “111 percent,” it goes back to

what I said about the most commonly known and largest faction or

set of the Bounty Hunter Bloods, being 111th Bounty Hunter

Bloods, Ace Line Bloods, so he’s saying that “me being 111

percent,” he’s saying that “I’m a hundred percent Bounty Hunter

Blood,” and that because he’s putting it on his gang, on his

affiliation with the Bounty Hunters, that “you should believe me that

I’m going to do everything in my word to stop your accuser, Marcell

Christopher, from coming to court.

As can be seen, with the exception of the Defendant’s reference to “Bobby” and

question about “paperwork,” the prosecutor’s questions focused solely on statements

made by Mr. Birdsong. We note that there were other statements by the Defendant

during the phone call that were not specifically highlighted by the prosecutor’s questions,

such as his agreement with Mr. Birdsong that the feud should be settled and his insistence

that he did not commit this offense. However, this extensive discussion of Mr.

Birdsong’s statements and their meaning belies the State’s assertion on appeal, relying on

this Court’s opinion in Damarkus Lowe, that Mr. Birdsong’s statements were not

admitted for the truth of the matter asserted but only to provide context for the

Defendant’s statements. Unlike Damarkus Lowe, in which “[t]he State did not ask the

jury to believe what those individuals said on the recording,” 2018 WL 3323757, at *18,

the State in this case clearly relied on Mr. Birdsong’s statements to establish both that the

Defendant was a gang member and that there had been a feud between the two gangs.

Because Mr. Birdsong’s statements on the recorded phone call were offered for the truth

of the matter asserted, they constitute hearsay under Rule 801(c).

However, like with the gang validation form discussed above, the Defendant has

waived this issue by failing to clearly raise a hearsay objection. When the recorded

phone call and transcript were admitted into evidence, the trial court noted that the

Defendant’s “objection is continuing.” However, although the recorded phone call was

- 20 -

admitted and discussed in great detail during the March 2017 hearing, it was in the

context of determining whether evidence of the Defendant’s gang affiliation would be

admissible under Rule 404(b) and whether evidence of the gang feud would be

admissible under Rule 403. The Defendant did not raise a hearsay objection to the

recorded phone call during that hearing. If a hearsay objection was raised during the

January 2017 hearing, as stated above, that transcript is not in the record. When a

defendant fails to object on the basis of inadmissible hearsay, “the evidence becomes

admissible notwithstanding any other Rule of Evidence to the contrary, and the jury may

consider that evidence for its ‘natural probative effects as if it were in law admissible.’”

State v. Smith, 24 S.W.3d 274, 280 (Tenn. 2000) (quoting State v. Harrington, 627

S.W.2d 345, 348 (Tenn. 1981)). Therefore, the Defendant’s claim that the phone call

should have been excluded as inadmissible hearsay is waived. See Tenn. R. App. P.

36(a).

V. Admission of Evidence Seized from Talladega Avenue

The Defendant argues that the trial court erred by admitting into evidence a nine-

millimeter handgun and shell casings collected by law enforcement from Mr. Toney’s

residence on Talladega Avenue when ballistic testing had determined that the projectiles

and shell casings collected from the crime scene were not fired by that gun. The

Defendant argues that this evidence was irrelevant and potentially confusing or

misleading to the jury. The State responds that the evidence was relevant because it

“illustrated the investigative process undertaken by law enforcement in this case” and

excluded Mr. Toney as a suspect.

As stated above, relevant evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.

Evidence that is not relevant is not admissible. Tenn. R. Evid. 402. Additionally,

relevant evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tenn. R.

Evid. 403. This Court reviews a trial court’s decision regarding the admissibility of

evidence for an abuse of discretion. Davidson, 509 S.W.3d at 207.

During Officer Brooks’ testimony, the State entered into evidence photographs of

a nine-millimeter handgun and nine-millimeter shell casings found at the home of Mr.

Toney, the Defendant’s ex-stepbrother. When the State asked Officer Brooks to describe

the photograph of the firearm, the Defendant objected that this evidence was irrelevant.

The State argued that the evidence was relevant because it was collected during the

investigation and was included on the TBI lab report. The trial court ruled as follows:

- 21 -

I find it’s relevant as being part of the investigation . . . . You know, I think

that in context, oftentimes law enforcement is faulted for what they didn’t

look at or examine. Where they have looked at it and examined it, then it

becomes part of the investigation. Your cross examination can help the

jury establish that there is no real weight that it carries against [the

Defendant].

The Defendant’s counsel argued that the evidence “has no bearing at all on this case,”

and the trial court agreed that “it has no bearing on [the Defendant’s] alleged acts if it

can’t be tied to him, but it is part of the investigation.” The State then asserted that the

evidence established that Mr. Toney was “a non-viable alternative suspect.” The trial

court suggested that the Defendant’s objection was late because the photographs of the

gun and shell casings had already been admitted into evidence and shown to the jury, and

the trial court did not want the jury to speculate as to the significance of the gun. The

trial court suggested that “maybe pretrial, if I had had an opportunity to view this, I might

have determined that it could be excluded from the report, but that’s not been done

pretrial.” The trial court asked if “there [is] something prejudicial against [the

Defendant] related to this gun,” and the Defendant’s counsel responded, “Not that I

know, other than the fact that this gun is with a family member of his[.]” The trial court

stated that it was not going to require the State to redact the TBI lab report and ruled that

evidence of the gun and shell casings recovered from Talladega Avenue were admissible.

Because the Defendant objected at trial only on the basis that the evidence should

have been excluded as irrelevant under Rule 402, his argument on appeal that the

evidence should have been excluded as confusing or misleading under Rule 403 is

waived. See State v. Schiefelbein, 230 S.W.3d 88, 129 (Tenn. Crim. App. 2007) (holding

that “a party is bound by the ground asserted when the party objected at trial”); State v.

Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990). We agree with the Defendant

that the evidence of a gun being recovered from the home of his ex-stepbrother, which

the TBI conclusively determined was not the gun used in the shooting in this case, was

not relevant. While it is clear why the police would have collected and tested a nine-

millimeter gun found in the possession of a family member of the Defendant during the

course of their investigation, the mere fact that they did so did not make any fact that was

of consequence at trial more or less probable. Specifically, the fact that the police found

this gun did not make it any more or less likely that the Defendant committed these

offenses. The State’s argument that the evidence was relevant because it excluded Mr.

Toney as a suspect is unavailing because neither the Defendant nor any other person ever

suggested that Mr. Toney could have been an alternate suspect. The trial court’s concern

about police being faulted for an insufficient investigation is similarly misplaced since

the Defendant never challenged that aspect of the investigation. Because this gun was

not related to the offenses in this case, it was irrelevant. See State v. Justin Mathis, No.

W2005-02903-CCA-R3-CD, 2007 WL 2120190, at *10 (Tenn. Crim. App. July 20,

- 22 -

2007) (holding that photograph of gun on defendant’s brother’s phone was irrelevant

where the State did not offer any evidence that it was related to victim’s murder), perm.

app. denied (Tenn. Dec. 26, 2007).

However, the admission of this evidence was harmless. Both the State and the

Defendant’s counsel questioned Investigator Blackwell about the fact that this gun was

determined not to have any association with this case and was returned to Mr. Toney.

Additionally, the TBI agent who conducted the ballistic testing in this case confirmed that

“those bullets and cartridge cases from the crime scene had not been fired in that pistol.”

This finding was reflected on the lab report that was admitted into evidence and was

repeated on cross-examination. The Defendant’s suggestion on appeal that the jury could

have been misled into thinking that there was some connection between this gun and the

evidence found at the crime scene is not supported by the record. The Defendant has not

established that “the admission of this evidence more probably than not affected the

verdict or resulted in prejudice to the judicial process.” State v. Rodriquez, 254 S.W.3d

361, 374 (Tenn. 2008); see Tenn. R. App. P. 36(b). Therefore, the Defendant is not

entitled to relief on this issue.

VI. Admission of Z.H.’s Bloody Onesie

The Defendant argues that the trial court erred in admitting into evidence a blood-

stained onesie alleged to have been worn by Z.H. at the time she was shot, which was

collected by Officer Salyers from the hospital room in which Z.H. had been treated prior

to being taken to surgery. On appeal, the Defendant argues that the onesie was unduly

prejudicial under Rule 403 and that the State failed to establish a proper chain of custody

for the onesie. However, because the Defendant only objected with regard to the chain of

custody issue at trial, his argument with regard to Rule 403 is waived. See Schiefelbein,

230 S.W.3d at 129.

Prior to admission, evidence must be authenticated “by evidence sufficient to the

court to support a finding by the trier of fact that the matter in question is what its

proponent claims.” Tenn. R. Evid. 901(a). For a piece of tangible evidence, “a witness

must be able to identify the evidence or establish an unbroken chain of custody” in order

to ensure “that there has been no tampering, loss, substitution, or mistake with respect to

the evidence.” State v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008) (internal citations

omitted). However, “this rule does not require that the identity of tangible evidence be

proven beyond all possibility of doubt[,]” and “[a]n item is not necessarily precluded

from admission as evidence if the State fails to call all of the witnesses who handled the

item.” Id. “Accordingly, when the facts and circumstances that surround tangible

evidence reasonably establish the identity and integrity of the evidence, the trial court

should admit the item into evidence.” Id.; see also State v. Kilpatrick, 52 S.W.3d 81, 87

(Tenn. Crim. App. 2000) (holding that “the circumstances established must reasonably

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assure the identity of the evidence and its integrity”). Challenges to the chain of custody

of a piece of evidence are reviewed under the abuse of discretion standard. Cannon, 254

S.W.3d at 295.

Officer Salyers testified that he responded to Erlanger Hospital to collect evidence

from the victims. Z.H. was already in surgery when Officer Salyers arrived. Officer

Salyers testified that when he specifically requested evidence related to Z.H., he was

directed to “the room that they had been working on her before taking her into surgery,”

where he collected a white onesie, a towel, and a pair of socks. The onesie was blood-

stained, had a hole in the back of it, and appeared to have been cut off of Z.H. The trial

court, in ruling on the Defendant’s objection, noted that the video from Officer Avery’s

body camera showed that Z.H. was wearing a white onesie when she was taken from the

scene to the hospital. The court also noted that the blood and the bullet hole were

consistent with evidence that Z.H. had been shot. The trial court concluded that it was

“sufficiently satisfied” that the evidence was what the State was purporting it to be.

The Defendant argues that this case is analogous to Cannon, in which the

Tennessee Supreme Court determined that the chain of custody for a pair of pantyhose

had not been properly established. 254 S.W.3d at 296-98. In that case, the only proof

linking the defendant to the rape of the elderly victim was a DNA profile obtained from

semen found on a pair of pantyhose. The victim did not testify and identify the

pantyhose as hers. The victim’s clothing had already been removed at the hospital before

the State’s witnesses arrived to interview and examine her. The forensic nurse examiner

testified that the pantyhose were with the rest of the victim’s clothes and that no one else

had been in the room. However, there were no pantyhose in the photograph of the

victim’s belongings, and they were not mentioned in either the examiner’s or the

detective’s reports. The supreme court concluded that “the pantyhose were not

sufficiently identified as belonging to the victim by a witness with knowledge”; thus, the

pantyhose and the DNA results obtained therefrom were not admissible. Id. at 298.

This case is distinguishable from Cannon because the facts and circumstances in

this case reasonably establish the identity of the bloody onesie admitted at trial as the one

worn by Z.H. at the time she was shot. The video from Officer Avery’s body camera

shows Z.H. wearing a white onesie as she is being carried down the steps of the College

Hill Courts apartment. Other evidence clearly established that Z.H. had been shot in the

back. When Officer Salyers went to the hospital, he requested evidence related to the

victims in this case and was directed to Z.H.’s hospital room. Although, like in Cannon,

Z.H.’s clothes had already been removed prior to Officer Salyers arrival, unlike Cannon,

there was no contradictory or suspicious testimony about whether this particular clothing

item was among the victim’s belongings. The only evidence of any kind of “tampering”

was Officer Salyers’ testimony that the onesie appeared to have been cut off of Z.H., but

this does not reasonably call into question the identity or integrity of the onesie as the one

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that was worn by Z.H. at the time she was shot. Because the identity and integrity of the

evidence was reasonably established, the trial court did not abuse its discretion in

admitting the onesie. However, even if the trial court erred, such error was harmless

because, unlike the pantyhose in Cannon, there was no forensic evidence linking the

Defendant to this crime taken from the onesie, such as hair or DNA, that would be

susceptible to tampering or cross-contamination. Therefore, the Defendant is not entitled

to relief on this issue.

VII. Admission of Evidence of an On-going Gang Feud

The Defendant argues that the trial court erred in admitting evidence of the gang

feud between the Athens Park Bloods and the Bounty Hunter Bloods. The Defendant

contends that Investigator Winbush’s testimony did not clearly establish the existence of

a feud, that the prior incidents not involving the Defendant were not relevant, and that the

evidence should have been excluded as unduly prejudicial under either Rule 403 or

404(b). The State responds that the evidence was probative of the Defendant’s motive

and that the potential for prejudice was low because there was no evidence of prior

wrongdoing by the Defendant.

As discussed above, evidence must be relevant to be admissible. Tenn. R. Evid.

402. However, relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. Tenn. R. Evid. 403. While evidence of a

defendant’s gang activity is analyzed under Rule 404(b) as evidence that may reflect

upon the defendant’s character and propensity to commit an offense, Rule 404(b) is not

applicable to evidence of crimes or other bad acts committed by a person other than the

defendant. See State v. Stevens, 78 S.W.3d 817, 837 (Tenn. 2002) (quoting DuBose, 953

S.W.2d at 653). This Court reviews a trial court’s decision regarding the admissibility of

evidence for an abuse of discretion. Davidson, 509 S.W.3d at 207.

At the same pretrial hearing in March 2017 during which the trial court considered

the admissibility of the Defendant’s gang affiliation under Rule 404(b), the trial court

also considered the admissibility of Investigator Winbush’s testimony regarding the on-

going gang feud under Rule 403. Investigator Winbush testified at the hearing, and later

at trial, that the Chattanooga Police Department became aware of a feud between the

Athens Park Bloods and the Bounty Hunter Bloods that began after a fight at a nightclub

called Terry’s Lounge in late December 2013. According to Investigator Winbush,

Martrell “Tricky Trell” Arnold, one of the leaders of the Athens Park Bloods, got into an

argument with Bobby Johnson, one of the leaders of the Bounty Hunter Bloods. Floyd

Davis, an Athens Park Blood, was arrested that night for possession of a firearm. The

police began monitoring the situation on social media.

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The next specific incident occurred on January 20, 2014, when the police

responded to a shooting at the home of the aunt and uncle of Quadarius “Oodie Blood”

Bowling, a member of the Athens Park Bloods. Several of the witnesses on the scene,

who later refused to cooperate with the investigation, initially indicated that Anthony

“A.J.” Malone, a Bounty Hunter Blood, was responsible. That same night, Deontray

Southers, the fourteen-year-old stepson of Bobby Johnson, was shot and killed in his

home. The police received information that several members of the Athens Park Bloods

were responsible but were unable to make any arrests due to a lack of cooperation from

witnesses. The following day, January 21, 2014, police responded to a call about shots

fired at the home of LaCharleston “L.A.” Haggard, an Athens Park Blood. Mr.

Haggard’s wife reported seeing two individuals believed to be members of the Bounty

Hunter Bloods running through the back yard with a rifle.

On February 1, 2014, Charles “Man Man Park” Jones, an Athens Park Blood, was

shot and killed. Witnesses indicated that the Bounty Hunter Bloods were actually

targeting Deaunte “Ta Ta Blood” Dean, another member of the Athens Park Bloods.

Several members of the Bounty Hunter Bloods were seen in the area prior to the shooting

and were seen fleeing the area immediately after. On February 4, 2014, Quadarius

Bowling was shot in the shoulder during a drive-by shooting, which was also believed to

be connected to the feud with the Bounty Hunter Bloods. Then, on February 24, 2014,

the Defendant’s mother was injured when shots were fired at her house. The Defendant

was on the scene when police arrived. The police had information that members of the

Bounty Hunter Bloods were responsible. The shell casings recovered at the scene were

later determined to match a firearm recovered in the possession of Mr. Birdsong during a

traffic stop.

The next incident discussed by Investigator Winbush occurred on October 1, 2014,

when Lakita Bowling, the mother of Quadarius Bowling, was shot and injured while he

was a passenger in her vehicle. Investigator Winbush testified that the Defendant was

Facebook friends with Mr. Bowling, who used the name “Parkbxi Asap” on his Facebook

page. Then, on October 27, 2014, police discovered that Terrence “T.B. Blood” Bivens,

an Athens Park Bloods and the brother of Floyd Davis, had been shot and killed by

Ladaquis Southers, a Bounty Hunter Blood and uncle of Deontray Southers. Investigator

Winbush testified that Mr. Bivens and Mr. Southers were actually close friends despite

their rival gang affiliations. However, during a dispute, Mr. Southers pulled out a gun

and shot Mr. Bivens. The Defendant posted a picture of Mr. Bivens on his Facebook

page that same day.

On January 1, 2015, Deaunte Dean was shot and killed through the front door of

his home. Investigator Winbush testified that the way Mr. Dean was killed was similar to

the way Deontray Southers was killed, in that someone may have knocked on the door

and then fired when the person came to answer it. Investigator Winbush testified that the

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Defendant was Facebook friends with Mr. Dean, who used the name “TA TA Blood” on

his Facebook page. The shooting incident in this case occurred six days after the murder

of Mr. Dean. To accompany Investigator Winbush’s testimony, the State also introduced

into evidence a PowerPoint presentation with the names and dates of each of the above-

described incidents accompanied by photographs of the victims and, where applicable,

potential suspects.

Although the analysis was intertwined, the trial court carefully applied Rule

404(b) to the evidence of the Defendant’s gang affiliation and Rule 403 to the evidence

of bad acts committed by persons other than the Defendant, which the State asserted

established the existence of an on-going gang feud. The trial court found that the

“common thread” among these incidents was “the fact that all of these victims and

perpetrators are members of the Athens Park Bloods or the Bounty Hunter Bloods and the

fact that all of these people are apparently, by this totality of the circumstances and

circumstantial evidence, involved in something that’s causing them each to be

victimized.” The trial court found that the Defendant’s “membership in one of those sets

could have caused him to have the same actions as others within those sets, and the

victim of the case in which he is accused is a Bounty Hunter Blood.” Thus, the trial court

concluded that this evidence was relevant “with regard to whether or not [the Defendant]

may have had the intent, the motive, to act himself, particularly where his mother’s house

was shot and there was a gun that was recovered and it was recovered from Mr. Birdsong,

who’s the leader of the Bounty Hunter Bloods.” The trial court determined that the

danger of unfair prejudice associated with these “incidents of violence” and the “negative

connotation toward gang members” did not substantially outweigh the probative value of

this evidence under Rule 403.

This case appears to be one of first impression in Tennessee: whether a series of

crimes committed by and against persons other than the Defendant can be used to

establish the existence of a gang feud, which in turn is used to establish the Defendant’s

motive and intent to target Marcell Christopher and kill Talitha Bowman in the process.

Other courts have recognized that “[r]eferences to a gang feud can supply to the jury a

motive for an otherwise unexplained killing[.]” Plummer v. United States, 813 A.2d 182,

189 (D.C. 2002). The Illinois Court of Appeals has concluded that even where “there

was no evidence presented that [the] defendant was involved in the escalating tensions

between the two gangs,” evidence of the defendant’s gang membership and of “the

simmering feud between the gangs helped explain to the jury why [the] defendant would

have targeted” one of the victims and killed another in the process. People v. Hakeem

Redmond, No. 1-15-1308, 2018 WL 6438848, at *8 (Ill. App. Ct. Dec. 6, 2018), perm.

app. denied, 119 N.E.3d 1047 (Ill. 2019). The California Court of Appeals held that

evidence of specific incidents of retaliatory gang violence preceding the victim’s murder,

including several that did not directly involve the defendant, were relevant to establish

the defendant’s motive as “retaliation as part of an ongoing rivalry between the two

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gangs.” People v. Funes, 28 Cal. Rptr. 2d 758, 766 (Ct. App. 1994). Moreover, the court

concluded that those incidents in which the defendant was not involved “were less

prejudicial to [the] defendant than those where [the] defendant clearly took an active role

in retaliating[.]” Id.

We conclude that the trial court did not abuse its discretion in determining that the

evidence of an on-going gang feud between the Athens Park Bloods and the Bounty

Hunter Bloods was relevant under Rule 401 because it made the Defendant’s alleged

motive more or less probable than it would be without the evidence. As noted above,

although the Defendant challenges the admissibility of the gang validation form on

appeal, he does not challenge the trial court’s ruling that evidence of his gang affiliation

was admissible under Rule 404(b) for the non-propensity purposes of establishing

motive, intent, and identity. With regard to the evidence at issue here, the Defendant

argues on appeal that there was no clear and convincing evidence that the feud existed or

he was involved in the feud. However, “clear and convincing evidence,” the standard by

which a prior crime or bad act must be established under Rule 404(b), is not the standard

for determining whether evidence is relevant under Rule 401 or whether it should be

excluded as unduly prejudicial under Rule 403. The Defendant has never challenged

Investigator Winbush’s ability to give an expert opinion regarding the existence of the

feud under Rule 702 or the admissibility of the facts supporting his opinion under Rule

703. With regard to the Defendant’s connection to the feud, we note that the Defendant

was directly connected to the shooting at his mother’s house and was indirectly

connected to the Athens Park victims in several of the other incidents through his

Facebook account. Because of this connection, the evidence of the gang feud was

probative of the Defendant’s motive to target a member of the rival gang and, thus, was

relevant under Rule 401.

The question then becomes whether the danger of unfair prejudice associated with

these ten acts of gang violence substantially outweighs their probative value under Rule

403. In a recent case, a panel of this Court was “troubled by the breadth of the gang

evidence presented,” including “extensive background information about the Gangster

Disciples and the origins of various gang signs” that was “of questionable relevance.”

State v. Jeremy Reynolds, No. E2018-01732-CCA-R3-CD, 2020 WL 3412275, at *25-26

(Tenn. Crim. App. June 22, 2020). The Jeremy Reynolds panel noted that although

evidence of the defendant’s gang affiliation was relevant and admissible to show his

connection to the murder weapon, which was recovered in the possession of a fellow

gang member, the investigator’s testimony about gangs “could have been better tailored

to minimize the danger that the jury would be distracted and confused by extraneous

information.” Id.

The potential prejudice associated with the evidence in this case is not merely the

fact that gangs tend to have a negative connotation and a reputation for violence. Instead,

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by associating the Defendant with these specific acts of violence committed by and

against third parties, there is a possibility that the jury will determine that the Defendant

is guilty merely by association. See United States v. Irvin, 87 F.3d 860, 865 (7th Cir.

1996) (“Guilt by association is a genuine concern whenever gang evidence is admitted.”).

“We acknowledge that the theory of ‘guilt by association’ [is a] theory that has been

‘thoroughly discredited.’” State v. Roshad Romanic Siler, No. E2005-01201-CCA-R3-

CD, 2007 WL 10450, at *9 (Tenn. Crim. App. Jan. 3, 2007) (quoting Uphaus v. Wyman,

360 U.S. 72, 79 (1959)). Additionally, we note that this same concern with guilt by

association lead in part to this Court holding that the gang enhancement statute,

Tennessee Code Annotated section 40-35-121(b), was unconstitutional as it was written

at that time because it “impose[d] mandatory punishment on an eligible defendant by

imputing to him responsibility for the criminal activity of the gang as a collective without

requiring the defendant’s knowledge of and intent to promote such activity.” State v.

Bonds, 502 S.W.3d 118, 158 (Tenn. Crim. App. 2016).

In this case, we conclude that the trial court did not abuse its discretion in

determining that the potential for unfair prejudice did not substantially outweigh the

probative value of the evidence of the on-going gang feud. Unlike the breadth of

evidence presented in Jeremy Reynolds, the evidence in this case was specifically tailored

to those acts of violence that were directly connected to this specific feud. Investigator

Winbush’s testimony and the State’s accompanying PowerPoint presentation were fairly

straightforward and did not include any overly graphic or salacious details. While ten

specific acts of violence may seem like a lot, the number of incidents presented by the

State was necessary to show the retaliatory nature of the feud. Although the trial court

did not give any specific limiting instruction with regard to this evidence, the trial court

did instruct the jury that it could only consider the Defendant’s alleged gang membership

for the limited purposes of identity, motive, and intent. We note again that “Rule 403 is a

rule of admissibility, and it places a heavy burden on the party seeking to exclude the

evidence.” James, 81 S.W.3d at 757. The Defendant has not established that the trial

court abused its discretion in admitting this evidence of an on-going gang feud and,

therefore, is not entitled to relief.

Conclusion

Based on the foregoing, we affirm the judgments of the trial court.

____________________________________

THOMAS T. WOODALL, JUDGE

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