State of Tennessee v. Brandon D. Middlebrook

01/05/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 29, 2020

STATE OF TENNESSEE v. BRANDON D. MIDDLEBROOK

Appeal from the Criminal Court for Knox County

No. 103238A Bob R. McGee, Judge

No. E2019-01503-CCA-R3-CD

The defendant, Brandon Middlebrook, appeals his 2015 Knox County Criminal Court jury

convictions of aggravated burglary, attempted first degree murder, employing a firearm

during the commission of a dangerous felony, and unlawful possession of a firearm by a

convicted felon, challenging the sufficiency of the convicting evidence and arguing that

the trial court erred by permitting the State to use the non-testifying co-defendant’s

statement to question the defendant at trial. We hold that the trial court erred by permitting

the State to cross-examine the defendant using the statement of his co-defendant but that

the error can be classified as harmless beyond a reasonable doubt. The evidence is

sufficient to support the defendant’s convictions of attempted first degree murder. Because

the defendant’s previous felony convictions do not qualify as prior convictions under the

terms of Code section 39-17-1324, the defendant’s convictions of employing a firearm

during the commission of a dangerous felony after having been previously convicted of a

dangerous felony in Counts 3, 7, 11, 15, 19, and 23 are vacated and those charges

dismissed. The case is remanded to the trial court for the entry of corrected judgment forms

reflecting the proper merger of the remaining convictions of employing a firearm during

the commission of a dangerous felony and the imposition of a six-year mandatory

minimum period of incarceration for each of those convictions. See T.C.A. § 39-17-

1324(h)(1). The judgments of the trial court are otherwise affirmed.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Vacated

and Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Gerald L. Gulley (on appeal) and Keith Lowe (at trial), Knoxville, Tennessee, for the

appellant, Brandon D. Middlebrook.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Knox County Grand Jury returned a 32-count indictment charging the

defendant and the co-defendant, Joshua Williams, with a variety of offenses related to an

incident that occurred in Knoxville on February 4, 2014. Given the complexity of the

indictment, we include only those charges applicable to the defendant and present it in table

format:

Count Charge

1 Especially aggravated burglary of

Aundre Buford’s residence with the

intent to commit theft and where Macee

Peterkin suffered serious bodily injury

2 Employing a firearm during the Lesser included offense of Count 3

commission of a dangerous felony, to

wit: especially aggravated burglary

3 Employing a firearm during the Prior felonies of attempted robbery

commission of a dangerous felony, to and aggravated assault

wit: especially aggravated burglary,

after having been convicted of a

dangerous felony

5 Especially aggravated burglary via the Alternative to Count 1

commission of assault and where Macee

Peterkin suffered serious bodily injury

6 Employing a firearm during the This count is identical to Count 2 in

commission of a dangerous felony, to all respects.

wit: especially aggravated burglary

7 Employing a firearm during the This count is identical to Count 3 in

commission of a dangerous felony, to all respects.

wit: especially aggravated burglary,

after having been convicted of a

dangerous felony

9 Attempted first degree murder of Macee Lesser included offense of Count

Peterkin 13

10 Employing a firearm during the Lesser included offense of Count

commission of a dangerous felony, no 11.

predicate dangerous felony alleged

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11 Employing a firearm during the Prior felonies are the same

commission of a dangerous felony, no attempted robbery and aggravated

predicate dangerous felony alleged, after assault alleged in Counts 3 and 7.

having been convicted of a dangerous

felony

13 Attempted first degree murder of Macee

Peterkin where Macee Peterkin suffered

serious bodily injury1

14 Employing a firearm during the This count is identical to Count 10

commission of a dangerous felony, no in all respects.

predicate dangerous felony alleged

15 Employing a firearm during the This count is identical to Count 11

commission of a dangerous felony: no in all respects.

predicate dangerous felony alleged, after

having been convicted of a dangerous

felony

17 Attempted first degree murder of Lesser included offense of Count

Aundre Buford 21

18 Employing a firearm during the This count is identical to Counts 10

commission of a dangerous felony, no and 14 in all respects.

predicate dangerous felony alleged

19 Employing a firearm during the This count is identical to Counts 11

commission of a dangerous felony: no and 15.

predicate dangerous felony alleged, after

having been convicted of a dangerous

felony

21 Attempted first degree murder of

Aundre Buford where Aundre Buford

suffered serious bodily injury

22 Employing a firearm during the This count is identical to Counts

commission of a dangerous felony, no 10, 14, and 18 in all respects.

1

Code section 40-35-501 provides:

There shall be no release eligibility for a person committing attempted first degree murder

as defined in § 39-13-202 where the victim suffers serious bodily injury as defined in

section 39-11-106, on or after July 1, 2013, until the person has served eighty-five percent

(85%) of the sentence imposed by the court less sentence credits earned and retained.

However, no sentence reduction credits authorized by section 41-21-236, or any other

provision of law, shall operate to reduce below seventy-five percent (75%) the percentage

of sentence imposed by the court such person must serve before becoming release eligible.

T.C.A. § 40-35-501(l)(5).

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predicate dangerous felony alleged

23 Employing a firearm during the This count is identical to counts 11,

commission of a dangerous felony: no 15, and 19 in all respects.

predicate dangerous felony alleged, after

having been convicted of a dangerous

felony

25 Aggravated assault of John McCamy via

“displaying” a deadly weapon and while

“acting in concert as defined by T.C.A.

39-12-301, with two or more other

persons”2

26 Aggravated assault of John McCamy via Alternative to Count 25

“using” a deadly weapon and while

“acting in concert as defined by T.C.A.

39-12-301, with two or more other

persons”

27 Aggravated assault of Janae Walker via

“displaying” a deadly weapon and while

“acting in concert as defined by T.C.A.

39-12-301, with two or more other

persons”

28 Aggravated assault of Janae Walker via Alternative to Count 27

“using” deadly weapon and while

“acting in concert as defined by T.C.A.

39-12-301, with two or more other

persons”

29 Unlawful possession of a weapon after

having been previously convicted of a

felony involving the use of force

30 Unlawful possession of a weapon after Alternative to Count 29

having been previously convicted of a

felony involving the use of violence

At the defendant’s February 23, 2015 trial, 17-year-old John McCamy

testified that on February 4, 2014, Mr. Williams, who was a friend of Mr. McCamy’s older

brother, telephoned him and asked Mr. McCamy to come to his house. Mr. McCamy

agreed, and when he arrived at Mr. Williams’ residence, he encountered the defendant,

“the unknown, and Mr. Williams.” The “unknown,” he said, was a black male whom he

2

“A crime of force or violence committed while acting in concert with two (2) or more other persons

shall be classified one (1) classification higher than if it was committed alone.” T.C.A. § 39-12-302(a).

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had never seen before. Mr. McCamy recalled that the defendant and “the unknown” had

“guns out” and that “there was another gun on the table.” Mr. McCamy said that the

defendant, Mr. Williams, and “the unknown” man discussed “going to get some money or

do a robbery of some sort.” During that discussion, Mr. Williams brought “up the fact that

I knew” Aundre Buford. Mr. McCamy testified that he regularly purchased marijuana from

Mr. Buford. Mr. McCamy said that Mr. Williams wanted Mr. McCamy to call Mr. Buford

“so they can take me to the front door so they can rob him.”

Mr. McCamy testified that, at that point, he became “pretty scared” because

Mr. McCamy believed that “Mr. Buford had a weapon, possibly, in his house” and that, as

a result, he “tried to convince them it was a bad idea.” Mr. McCamy said that he did not

want to participate in the planned robbery, so he attempted to leave, at which point the

defendant “stood up promptly and put a firm hand on my shoulder with his gun in his hand

and told me that I was going to do it.” Mr. McCamy said that he “was terrified,”

particularly because he was aware that Mr. Williams was on probation for a conviction

related to a home invasion. Mr. McCamy acquiesced to the demand that he call Mr. Buford,

and the defendant, Mr. Williams, and “the unknown” man donned rubber gloves and

“began to clean off their bullets with towels.”

When the men finished their preparatory work, “we exited the apartment

complex. And there was one in front of me and two of them behind me. I think their guns

were out.” Mr. McCamy testified that the four men got into Mr. McCamy’s car and that

he followed the directions that the men gave him to Mr. Buford’s apartment. He said that

when they arrived at Mr. Buford’s residence in the Fort Sanders area, the defendant told

Mr. McCamy to park his car in an alley next to the apartment complex. The men exited

Mr. McCamy’s car and followed Mr. McCamy up the stairs to Mr. Buford’s apartment

with “their guns drawn.” Mr. McCamy knocked on the door, and, when Mr. Buford asked

who was there, Mr. McCamy told “him that it’s John. And he let[] me in.” Mr. McCamy

testified that he could not “recall if I was pushed in or if I walked in” but that “pretty much

almost as soon as I get in” “guns were drawn. And I went to the floor in [a] fetal position,

absolutely terrified, and then started hearing gunshots.”

Mr. McCamy testified that he could not tell from his vantage point which of

the men was firing guns. He said that when the gunfire ended, his “ears were ringing very

loud. And I just was absolutely stunned and terrified. And I panicked and kind of just

started to run.” Mr. McCamy recalled hearing a woman’s screaming before he ran out of

the apartment and down the stairs, where he saw Mr. Buford lying on the ground. Mr.

McCamy said that he ran down the alley toward his car but, before he got to the car, the

defendant, Mr. Williams, and “the unknown” man “came out of the alleyway” with their

guns drawn and began “screaming at me to get in the car. And I’m fumbling with my keys,

trying to get the door opened. And I finally get the door open and then they all get in.”

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The defendant had been shot. As they drove away, the men “were screaming directions at

me, cursing me, yelling at me, telling me that I can’t tell anyone what happened, that they

know where I live and, like, my family and all this stuff, that I can’t go to the police or

anything.” Mr. Williams wanted Mr. McCamy to drive the defendant to the hospital, but

Mr. McCamy stopped when he saw an ambulance. Mr. McCamy said that the three men

got out of his car, and he “drove just all over, trying to figure out what to do.”

Mr. McCamy testified that he eventually went to the home of a friend, where

he cleaned the blood out of his car. After cleaning the blood out of his car, Mr. McCamy

went home and “cleared all my text messages and phone calls,” explaining that he “just

panicked. I thought it would be a good idea to just clear it all.” These tasks complete, Mr.

McCamy revealed the evening’s events to his parents, who, in turn, “called our lawyer and

then I went and talked to the police.” Mr. McCamy also turned his cellular telephone,

wiped clean of text messages and call records, over to the police and assisted the State in

procuring his cellular telephone records. Those records confirmed that Mr. McCamy and

Mr. Williams shared a few calls on the day of the offense and that Mr. McCamy called Mr.

Buford at 7:36 p.m., 8:05 p.m., and 8:10 p.m.

During cross-examination, Mr. McCamy testified that he knew a man named

Aaron Blance but insisted that he did not know the defendant and that he was unaware of

the defendant’s familial relationship to Mr. Blance. Mr. McCamy acknowledged that the

forensic examination of his cellular telephone indicated that a single contact had been

deleted, but he specifically denied having deleted any of his contacts. The global

positioning satellite (“GPS”) information obtained from Mr. McCamy’s cellular telephone

for the evening of February 4, 2014, was entered into evidence, as was map information

from the Knoxville, Knox County, Knoxville Utilities Board Geographic Information

System (“KGIS”). These records, taken together, established that when he first spoke with

Mr. Williams, Mr. McCamy was near Legacy Pointe Apartments. He was near Victor

Ashe Park at 6:25 p.m. and near Mr. Williams’ apartment at 6:35 p.m. The records showed

that at 6:57 p.m., Mr. Williams was traveling on I-640 in the opposite direction of Mr.

Buford’s apartment. At 7:08 p.m., he was at a location in the Cedar Bluff area, where he

remained until 7:21 p.m. Ten minutes later, Mr. McCamy was still in the general Cedar

Bluff area, this time near Park Village Road. The location information combined with the

call records indicated that Mr. McCamy was actually in this general area and not at Mr.

Williams’ apartment when he first telephoned Mr. Buford at 7:36 p.m. The location

records established that Mr. McCamy was in the general location of Mr. Buford’s

apartment at 13th and Highland at between 8:03 p.m. and 8:11 p.m. Mr. McCamy said that

he did not know why the GPS coordinates showed him driving west toward the Cedar Bluff

area when he first left Mr. Williams’ apartment or why they showed him stopped in that

area for several minutes. He denied that he drove to that area for the purpose of selling

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pills. He also denied having stolen a handgun from his grandmother to trade to Mr. Buford

for drugs on February 4, 2014.

Mr. McCamy testified that, because he closed his eyes for the duration of the

encounter inside Mr. Buford’s apartment, he could not say how many people were in the

apartment when he arrived and could not say how many came in behind him. Mr. McCamy

said that Ms. Peterkin was the only person left in the apartment when he left. Mr. McCamy

acknowledged that he did not see the defendant shoot anyone and that he specifically did

not see the defendant stand over Ms. Peterkin and shoot her in the back. Mr. McCamy also

acknowledged that he did not contact the police until four days after the offenses, by which

time he knew that the defendant had been arrested and charged in this case.

Aundre Buford testified that he initially moved to Knoxville in 2010 to attend

the University of Tennessee and that, after losing his scholarships due to his poor academic

performance, he stopped going to school and began selling marijuana out of his apartment

at 16th and Highland. Mr. Buford testified that the defendant’s “nephew,” Aaron Blance,

bought marijuana from him regularly and “kicked it at my house a lot.” Mr. Buford met

the defendant through Mr. Blance and began selling marijuana to the defendant. Mr.

Buford testified that in December 2013, he “was robbed by two guys” that the defendant

had previously brought to Mr. Buford’s apartment to buy marijuana. The men took money

and drugs from Mr. Buford at gunpoint, but he did not report the crime to the police.

Following that robbery, Mr. Buford moved into a different apartment, cut off all contact

with the defendant and Mr. Blance, and obtained a Kimber .45-caliber handgun for his

protection. Mr. Buford said that he also purchased .357-, .38-, .40-caliber ammunition to

use when he went to the gun range, explaining, “The gun range that I go to, . . . you can

buy bullets from there or you can bring your own bullets and it’s cheaper to buy your own

bullets than purchase theirs from the gun range, so I just got a few bullets to go shoot at the

gun range.”

Despite having been robbed in the course of dealing drugs, Mr. Buford

continued to sell marijuana, and Mr. McCamy was one of his customers. Mr. Buford

testified that on February 4, 2014, Mr. McCamy “basically he hit me up . . . to buy some.

And I’m not sure exactly . . . why it waited till later for him to come, but throughout the

day he hit me up a few more times and then later that day . . . I let him know I was ready.”

Before Mr. McCamy arrived, Mr. Buford went to get food, and while he was eating his

food, two friends of his, Janae Walker and Macee Peterkin, came to his apartment to visit

him. A short time after the women arrived, Mr. Buford heard a knock at the door and asked

who was there. When he got no response, he looked out the front window but did not see

anyone, so he asked again. At that point, someone said, “‘Johnny B.,’” and Mr. Buford

replied, “You sound like a black guy.” Mr. Buford testified that as soon as he “opened the

door, that’s when like [the defendant] pushed Johnny B. in and came in behind them.” Mr.

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Buford tried to push the men “back out the door,” but the defendant “broke free and came

on in.” Mr. Buford immediately reached for his gun, which was on his hip, and the

defendant “just started shooting.” Mr. Buford said that the defendant did not point his

weapon at Mr. Buford but was instead “just waving it around like he was . . . on something

that night because he was really, really jittery and like just jumping around.” Mr. Buford,

too, began firing his weapon and continued to do so until he ran out of bullets. Mr. Buford

said that he aimed his weapon at the defendant, saying, “I was trying to shoot him.”

Mr. Buford testified that after he ran out of bullets, he ran out the door of his

apartment, “fell down the steps,” and then heard someone “downstairs yelling, ‘Kill that

young n*****, kill that young n*****.’” He then was shot again. Mr. Buford said that he

did not know how many shots hit him while he was inside the apartment but that shots to

his wrist and leg had to have come while he was outside because his leg was broken and

the gun knocked out of his hand. After he fell down the stairs, Mr. Buford saw Ms. Walker

exit the apartment supporting Ms. Peterkin, who was crying. He then saw Mr. McCamy

run down the alleyway followed by Mr. Buford’s dog. “After that, there was just the

ambulance and the paramedics getting there.” Mr. Buford said that, as he lay on a bed in

the trauma bay at the hospital, he saw the defendant come in on a stretcher and told the

detectives “that’s him right there, that’s the guy who shot me.”

Mr. Buford suffered five gunshot wounds, one of which broke his wrist and

another of which shattered a bone in his lower leg, and he spent approximately two weeks

in the hospital recovering from his injuries. Mr. Buford admitted that by testifying against

the defendant, he had admitted his own participation in several crimes. He said that he had

chosen to testify for Ms. Peterkin, saying, “I wouldn’t care if he’s in jail myself honestly .

. . . If it wasn’t for Macee then I probably wouldn’t be here.” Mr. Buford said that he

considered himself responsible for Ms. Peterkin’s injuries, particularly because he had

learned during Mr. Williams’ trial that some of his bullets had struck Ms. Peterkin.

During cross-examination, Mr. Buford denied that he harbored any ill will

toward the defendant despite the defendant’s link to the perpetrators of the December 2013

robbery because the defendant “wasn’t the one that actually robbed me.” Mr. Buford said

that both Ms. Walker and Ms. Peterkin “knew that I had a gun. I mean, they knew why I

would have a gun also.” He said that he also thought they knew that he sold marijuana.

Mr. Buford clarified that the door to his apartment “wasn’t kicked in” and that, instead,

“once I seen [the defendant] like he was outside of the door and I tried pushing him like

out the door, but he’s clearly stronger than me so he got in.” Mr. Buford said that Mr.

McCamy “came in and went straight down.” Mr. Buford said that the defendant did not

grab him, push him, or place a gun right against his chest. Instead, the defendant pointed

a gun in Mr. Buford’s direction and told them to get down. Mr. Buford said that, as soon

as the defendant saw “me reach, he started shooting.”

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Mr. Buford testified that he was “pretty sure” that his cellular telephone was

in his pocket “when they cut all my stuff off of me” but also agreed that Detective Lee

returned the telephone to him. Mr. Buford said that the bullets in his gun and all the .40-

caliber bullets in his apartment were hollow point bullets. Mr. Buford conceded that he

was shooting at the defendant but said that he “did not take my time and aim down the aim

sights or none of that.” Mr. Buford said that he could not explain how the defendant was

only able to get off five rounds in the same time Mr. Buford fired 10 rounds. Mr. Buford

believed that he was shot by the defendant while inside the apartment and by another man

while outside the apartment.

Athena Roberts, a trauma core nurse at the University of Tennessee Medical

center who treated Mr. Buford, testified that her notes indicated that Mr. Buford suffered

two gunshot wounds to his right arm, one gunshot wound to his left ankle, and three

gunshot wounds to his right leg.

Janae Walker testified that she met both Mr. Buford and Ms. Peterkin when

she moved to Knoxville and enrolled at the University of Tennessee; she and Ms. Peterkin

became roommates. On February 4, 2014, Ms. Walker and Ms. Peterkin picked up dinner

and then decided to visit Mr. Buford “because we hadn’t seen him in a while.” Ms. Walker

said that they telephoned and asked Mr. Buford if they could come by, and he agreed.

When they arrived at his apartment, Mr. Buford was alone with his dog. Ms. Walker said

that she and Ms. Peterkin visited with Mr. Buford for approximately 25 or 30 minutes and

that when they stood to leave, they “heard a knock on the door.” Ms. Walker said that

immediately after the knock, a man she later learned was Mr. McCamy “came in” and went

to the floor. At that point, Mr. Buford tried “to push the door closed . . . that’s when it was

like a tussle at the door. And as soon as the tussle, like, started,” a black man with “a

freshly-lined beard” “pushed the door in and pointed a gun” at Mr. Buford “directly at his

chest” and said “you know what it is. Get on the ground or whatever.” She saw another

black man, whom she described as “taller, and, like, leaner, like, slim, pretty much,”

standing “in the background, like, near the doorway.” Ms. Walker, who had been “standing

in the kitchen,” “went further back in the kitchen” and “then I heard, like, between 10 to

15 shots go off in the house.” She recalled hearing Ms. Peterkin “just screaming, like

bloody murder, just screaming” and seeing Mr. McCamy “in the fetal position on the side

of the wall. He was right behind me.” Ms. Walker said that after the gunfire stopped, she

“heard someone walking around” and saw a shadow on the wall. She remained still until

she “heard them walk out.” At that point, Ms. Walker said, she came out of the kitchen,

saw Ms. Peterkin lying on the floor, and realized that Ms. Peterkin had been shot. Ms.

Walker said that she helped Ms. Peterkin out of the apartment and that when they walked

outside, they saw Mr. Buford lying in a pool of blood.

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During cross-examination, Ms. Walker testified that on the night of the

offenses, she and Ms. Peterkin left their food in her car while they visited with Mr. Buford

for 20 to 30 minutes “having conversation.” Ms. Walker said that, when the perpetrators

arrived, she had gone into the kitchen to look at the food Mr. Buford had on the stove

“because I was going to ask him could I have some, but then I remembered I had my own

food in the car so I didn’t ask.” She clarified that, when the men forced their way into the

apartment, she “was not in the kitchen, but I was standing in the doorway.” Ms. Walker

insisted that she did not know that Mr. Buford had marijuana and a gun in the apartment,

despite that photographs showed marijuana and an extra clip for Mr. Buford’s gun lying in

the apartment. Ms. Walker claimed that Mr. Buford did not receive any calls or text

messages before the men arrived at the door. She said that after they heard the knock, Mr.

Buford “asked multiple times” who was at the door and looked out the window before

opening the door. Ms. Walker testified that she “felt as if the door was kicked in” because

there “was a tussle at the door.” She said that Mr. McCamy walked into the apartment “on

his own power” and then went to the ground “on his own knowingly”; he was not pushed.

She said that Mr. Buford and the first man to enter, the one with the freshly-lined beard,

engaged in “a shove match” at the door. Ms. Walker conceded that she did not actually

see any of the shooting from her place in the kitchen. After the shooting, she used Mr.

Buford’s cellular telephone to call 9-1-1 and then left the telephone in the apartment when

she helped Ms. Peterkin outside. She insisted that she did not know that Mr. Buford had

marijuana in the apartment, but she identified a small bag of marijuana on the table and a

larger bag of marijuana under the couch. Ms. Walker admitted that when she first spoke

with the police, she told them that there was no knock at the door that preceded the

perpetrators’ entry. She also acknowledged having told the police that the second man had

his hood up despite having testified that she knew the second man was black because she

saw the back of his neck. She conceded that when the police asked whether the intruders

said anything, she told them that they had not. Ms. Walker insisted, however, that she was

too concerned with Ms. Peterkin’s welfare to provide an accurate statement to the police.

She claimed, “What I’m telling you now is correct because the state of mind that I was in

and given the emotions and environment that just happened I’m sure I wasn’t very concise

with my account detail to detail, but I was very clear on what was major to me and what I

saw.” She admitted having discussed the details of the offenses with Ms. Peterkin, whom

she described as her best friend, so many times that she could not be sure of the number.

Macee Peterkin testified that she moved to Knoxville in 2010 to attend the

University of Tennessee and that she met Ms. Walker and Mr. Buford shortly thereafter.

On February 4, 2014, Ms. Peterkin and Ms. Walker picked up their dinner from a local

restaurant and then went to visit Mr. Buford at his apartment. Ms. Peterkin said that they

sat for a while, watching a basketball game and talking. As Ms. Peterkin and Ms. Walker

prepared to leave, they “heard a knock at the door and it was Mr. McCamy.” Mr. Buford

let Mr. McCamy in, and, as Mr. Buford “was closing the door, there was someone else on

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the other side forcing entry.” She said that Mr. McCamy “knelt down in the fetal position

near the dog cage” upon entering the apartment. At that point, Ms. Peterkin saw a man

enter with a gun in his hand. Ms. Peterkin said that after she “fell to the ground I really

didn’t see too much of what was going on.” She said that “[a]fter the shooting stopped,”

the man who had initially entered with the gun “then proceeded back into the bedroom.

And at this time I tried to crawl into the bathroom.” Ms. Peterkin insisted that the man,

whom she identified at trial as the defendant, came “running out and that’s when he shot

me on my back side.” She insisted that, despite that she was lying face down on the floor,

she saw the defendant before he shot her. She said, “I remember looking up at his face and

I just remember like thinking to myself I wasn’t going to make it out because he saw me

trying to get into the bathroom.” She then heard more gunshots outside. After those

gunshots stopped, Ms. Walker came out of the kitchen, and Ms. Peterkin asked for her help

so that she could leave the apartment. When the women got outside, they “made it down

one flight of stairs,” where they saw Mr. Buford “slumped over, shot, injured, and he was

just telling me how sorry he was that this had happened at his home.” The police arrived

shortly thereafter and told her to stay where she was. She was transported to the hospital

via ambulance. Ms. Peterkin testified that she spent 10 days in the hospital recovering

from her injuries, which included “a shattered scapula as well as a shattered collar bone.

Six broken ribs. A nicked liver. Collapsed right lung, which the bullet still remains in my

right lung.”

During cross-examination, Ms. Peterkin testified that Mr. Buford opened the

door for Mr. McCamy and that the door to Mr. Buford’s apartment was not kicked in. She

said that Mr. McCamy walked in “pretty normal. It’s nothing that would be out of the

ordinary.” He was not thrown or shoved into the room. Ms. Peterkin explained that Mr.

McCamy had time to greet Mr. Buford but that immediately after that, the defendant

attempted to enter, and Mr. Buford attempted to stop him. She said that the defendant went

into Mr. Buford’s bedroom but did not go into the bathroom. Ms. Peterkin acknowledged

that she was not able to identify the defendant as the perpetrator who had entered Mr.

Buford’s apartment at any time prior to the trial. Ms. Peterkin said that she did not know

who fired the first shot. Ms. Peterkin testified that a doctor had told her that a bullet

remained inside her right lung and insisted that metal detectors go off when she walks

through them. She said that she was positive that the defendant shot her from the front as

she stood and that he shot her in the back as she lay face down on the floor.

Wes Chamblee, a core trauma nurse at the University of Tennessee Medical

Center, testified that, prior to arriving at the hospital, Ms. Peterkin was assigned the alias

“Tango-Tango” because she was a “full alert,” which is a patient that “is the most critical

-- or has the potential to be most critical.” Mr. Chamblee specifically recalled Ms.

Peterkin’s case because “the number of injuries that she had stood out.” He said that he

“charted nine wounds or holes” and described them, based upon the information they had

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at the time, as gunshot wounds. He recalled that upon her arrival, Ms. Peterkin “was

conscious and alert” but “very tachycardic.” Hospital personnel took an X-ray, inserted a

chest tube, and “took the patient to the operating room as soon as we could.”

Knoxville Police Department (“KPD”) Investigator Charlie Lee testified that

he was dispatched to a call of shots fired at 215 13th street in Knoxville on February 4,

2014. When he arrived at the scene, which he described as “very involved,” he saw first

responders “coming on the scene and probably one or two patrol units may have beat me

there.” Investigator Lee observed “numerous cartridge casings” in the parking lot and

“laying on the stairwells.” He also observed what appeared to be blood. Investigator Lee

said that he observed and assisted in the recovery of a .45-caliber handgun that had been

“fired till it was empty.”

Investigator Lee testified that he found Mr. Buford and Ms. Peterkin on the

second level of the apartment building but that he did not attempt to speak with either of

them given the extent of their injuries. Investigator Lee then looked into Apartment 20 but

did not enter because, at that point, he was unclear to whom the apartment belonged and

because he did not want to disturb any potential evidence. He then walked “towards the

south end of the building,” where he observed “a blood trail” that “kept going towards the

. . . railing” and then “over the rail” and on the ground below as well as “blood spray up on

the side of the building.” He said that “it was kind of evident” that someone had suffered

“an artery wound, because that’s what you get, you get that hard spray from the blood.”

The blood trail continued to an area on “the back side of that other apartment building”

where it ended abruptly, which indicated to Investigator Lee “that someone got into a

vehicle there.”

Investigator Lee said that when “another call concerning a gunshot victim”

located at the intersection of Highland and 21st Streets came on the radio, he “was very

suspicious . . . that there was some kind of connection.” He learned from the officers who

went to that scene that the gunshot victim, who was later identified as the defendant, had

suffered “a pretty good serious wound.” Those same officers detained Mr. Williams, who

was with the defendant at the time, and brought him to the police station, where Investigator

Lee interviewed him.

Investigator Lee testified that he learned from an investigator who was

present in the trauma bay where Mr. Buford was being treated that Mr. Buford had

identified the defendant as “the person who shot me” when Mr. Buford saw the defendant

being “rolled in on a stretcher.” Mr. Buford later identified the defendant from a

photographic array. Ms. Peterkin was unable to identify the defendant from the lineup on

that or any other day.

-12-

During the course of his investigation, Investigator Lee learned that Mr.

McCamy had been driving the black truck that had been at the scene. Mr. Buford identified

Mr. McCamy from a photographic array as one of the men who had entered his apartment

on February 4, 2014. Officers found Mr. McCamy and his vehicle on the evening of

February 5, 2014. Mr. McCamy indicated via his attorney that he was unwilling to speak

to the police outside the presence of his lawyer.

Investigator Lee interviewed the defendant at the hospital on February 5,

2014. The audio recording of that interview was played for the jury. In that interview, the

defendant denied having gone to Mr. Buford’s apartment to rob him, denied having shot at

anyone, and denied having even possessed a gun.

Investigator Lee interviewed the defendant for a second time on February 7,

2014, at the police department following his release from the hospital. The video recording

of that interview was played for the jury. During that interview, the defendant again denied

having gone to Mr. Buford’s apartment to rob him and denied having possessed a gun. The

defendant also claimed to have driven himself to Mr. Buford’s apartment and identified a

person named “Jamison” as having been involved. Investigator Lee testified that he

attempted to locate the man the defendant identified as “Jamison” but was unable to do so.

He also could not locate Mr. Blance’s car, which the defendant claimed to have driven to

Mr. Buford’s apartment, in the parking lot. Additionally, Investigator Lee said that he did

not recall having seen a car that matched that description in the parking area on the night

of the offenses.

Sometime after the offenses, officers with the Oak Ridge Police Department

recovered a Ruger P89 9-millimeter handgun from along the bank of Melton Hill Lake.

The position of the gun, stuck into the ground, indicated that it “had been thrown with some

force” from the nearby roadway. That weapon was sent to the Tennessee Bureau of

Investigation (“TBI”) for testing to determine whether it bore any connection to this case.

During cross-examination, Investigator Lee testified that he returned Mr.

Buford’s cellular telephone to him at the hospital despite that a search warrant had been

issued for Mr. Buford’s apartment that specifically included cellular telephones. He said

that it was his recollection that he had obtained all the information he needed from the

cellular telephone before he returned it. Investigator Lee conceded that he did not record

the interviews he conducted of Mr. Buford or Ms. Peterkin while they were in the hospital

and that he elected to record his interview with the defendant despite that the defendant

was gravely injured and under the effects of pain medication. By that point, the defendant

was the primary suspect, and warrants had been issued for his arrest. Investigator Lee said

that he had “no doubt that [the defendant] was on some kind of pain medication” at the

time of his interview on the night of the offense but insisted that the defendant “seemed

-13-

coherent.” Investigator Lee agreed that it was possible that the defendant had been given

pain killers upon his release from the hospital immediately before the interview at the

police station on February 7, 2014. He acknowledged that the defendant told him during

the February 7 interview that he was scared. Investigator Lee said that, “from the

beginning,” Mr. McCamy’s “statement was more plausible” than the statements provided

by the defendant and Mr. Williams, which statements he described as “somewhat

outlandish or . . . vague at times.” Investigator Lee conceded that Mr. McCamy admitted

that he cleaned the blood out of his truck and “erased some things off his phone” before

going to the police. Despite these actions, Mr. McCamy was not charged with evidence

tampering.

KPD Evidence Technician Beth Goodman, who responded to the scene,

testified that when she arrived, she observed a large number of shell casings, “a weapon in

the parking lot,” and two victims being attended by EMS personnel. Ms. Goodman noted

“lots of bullet fragments, bullet casings, bullet defects or holes in windows and walkway

railings.” She described the scene as “one of the hardest . . . I have ever had to work, to

describe where things are” because of the layout of the apartment complex and the sheer

volume of evidence spread “pretty much on almost every level of the building, either or up

or down or on the stairs.” She testified that the weapon found in the parking lot was “a

.45-caliber Kimber” with an empty magazine. She said that all the bullets, fragments, and

shell casings found outside were .40 caliber. Upon entering Mr. Buford’s apartment,

Apartment 20, Ms. Goodman observed that “there was blood in the apartment, there were

casings . . . , [and] bullet fragments inside the apartment.” She said that the shell casings

found inside Apartment 20 were .45 caliber and 9 millimeter. She observed a magazine on

the coffee table that contained seven .45-caliber cartridges.

Ms. Goodman testified that on the following day, she went to 2104 Cove

View Road in Knoxville to recover, transport, and process a GMC Denali that investigators

believed to be connected with this case. She noted numerous reddish-brown stains that

appeared to be blood both inside and outside the vehicle. She swabbed those areas and

sent the swabs to the TBI for testing. She later went to the University of Tennessee Medical

Center, where she collected bullet fragments that had been recovered by doctors who

operated on Ms. Peterkin. She noted that emergency personnel found a “bullet that actually

still ha[d] the jacket on it” when transporting Ms. Peterkin to the hospital. While at the

hospital, she also collected the clothing worn by Mr. Buford.

During cross-examination, Ms. Goodman agreed that Kimber brand

handguns tend to be nicer weapons. She said that the magazine discovered on the coffee

table was Kimber brand and that the bullets in that magazine were hollow points. Ms.

Goodman testified that the magazine found inside the Kimber was longer and stamped

Wilson Combat. Ms. Goodman said that a total of nine .45-caliber casings and five 9-

-14-

millimeter casings were found inside Apartment 20; no .40-caliber casings were found

inside the apartment.

KPD Crime Scene Technician Danielle Wieberg responded “to a secondary

scene at 2103 Highland,” where she “photographed that area and collected some evidence

from that location.” As part of her duties that evening, Ms. Wieberg followed a blood trail

from the primary scene to an area behind a house at 1409 Highland, where “the blood trail

ended right next to [some] tire treads.” She collected clothing belonging to Mr. Williams,

which included a pair of jeans that had what appeared to be blood on them. She said that

a pair of clear latex gloves were found in his pocket. She participated in the execution of

a search warrant at Mr. Williams’ residence, where officers found an unfired .40-caliber

bullet “in one of the closets in the dining room.”

KPD Firearms Examiner Patricia Resig examined Mr. Buford’s Kimber .45-

caliber handgun, the 9-millimeter handgun discovered by the Oak Ridge Police

Department, and the numerous bullets, bullet fragments, and cartridge casings recovered

during the investigation of this case. Ms. Resig’s examination established that all the .45-

caliber casings recovered from the scene had been fired from the same Kimber .45 auto

caliber pistol, as had, indeed, all of the .45-caliber bullets and bullet fragments. The

Kimber bullets were all of the hollow-point variety, which, she explained, means that the

nose of the bullets was designed to “mushroom back or peel back,” which, in turn, “make[s]

the wound channel larger.” She determined that the “bullet found by EMS during

transport” of Ms. Peterkin was “a fired .45 auto caliber bullet” that had been fired through

“the barrel of the submitted firearm, .45 caliber Kimber pistol.” She said that four bullet

portions were recovered during Ms. Peterkin’s surgery: “One is a fired bullet portion, a .45

auto caliber. One is a fired bullet jacket fragment, one is a fired bullet jacket fragment, and

the other one’s a fired bullet core fragment.” Ms. Resig determined that the remaining

bullet portions “could have been part of one bullet” and that it was likely fired through the

.45 auto caliber Kimber.

Ms. Resig testified that the 13 .40-caliber cartridge casings recovered from

the scene were likely fired by a .40-caliber Glock firearm, noting that they bore indicia that

indicated that they had been fired from a Glock firearm. She determined that five of the

.40-caliber casings had been fired “in the same unknown gun” and that, while the remaining

eight .40-caliber casings shared “similar class characteristics to the first group of .40-

caliber casings, I could not match the two groups together, which might suggest there were

two probable Glock firearms involved.” The “fired .40/10 millimeter caliber . . . jacket”

that was recovered by the personnel transporting Ms. Peterkin to the hospital bore the

polygonal rifling typically seen “in Glock and a few other guns.” Ms. Resig testified that

a bullet fragment found beneath Mr. Buford’s clothing also displayed the polygonal rifling

that “can be consistent with a Glock.”

-15-

Ms. Resig said that nine cartridge casings from the scene “could have been

fired through the barrel of the submitted firearm, which is a 9-millimeter Ruger semi-

automatic pistol. But there wasn’t enough of those individual characteristics for me to say

with 100 percent certainty that it was fired through the barrel of that gun.” None of the

bullets or fragments recovered during Ms. Peterkin’s transport or treatment were 9-

millimeter.

TBI Special Agent and Forensic Scientist Jennifer Millsaps determined that

the DNA profile from blood taken from the railing outside of Apartment 6, the brick

landscaping outside Apartment 5, the ground outside Apartment 7, the window of

Apartment 6, footprints at both 1309 Highland Avenue and 1323 Highland Avenue, the

Clorox wipes container taken from Mr. McCamy’s truck, and the inside of Mr. McCamy’s

truck matched the defendant’s DNA profile. She testified that testing established the

presence of human DNA on the grips and trigger of the 9-millimeter pistol recovered

during the investigation but that, “[d]ue to the complex nature and unknown number of

potential contributors to this profile, further interpretation was inconclusive.” Swabs taken

“from all other areas except the grips and trigger” of that same firearm were presumptively

positive for the presence of blood, but “[f]urther testing did not indicate the presence of

human hemoglobin, a component of human blood.” She said that a partial DNA profile

obtained from the swabs of those areas contained “a mixture of at least two individuals,”

with the defendant being the major contributor.

The defendant stipulated that he had a previous felony conviction involving

force and a previous felony conviction involving violence.

Doctor Steven Cogswell, Deputy Chief Medical Examiner for Hamilton

County, testified on behalf of the defendant. Doctor Cogswell said that he had reviewed

Ms. Peterkin’s medical records and had determined, based upon his review of those

records, that Ms. Peterkin “was shot a maximum of six times, which produced multiple

actual defects because some of these gunshot wounds are what we call perforating, that is,

they pass entirely through the body.” Ms. Peterkin suffered “a total of four perforating

wounds, which, obviously, comprise eight defects,” and two penetrating wounds. Doctor

Cogswell testified that it was possible that Ms. Peterkin had been shot fewer than six times

because the placement of the defects in the pants she wore at the time of the shooting

suggested that the perforating, or through-and-through, wounds on her legs could have

been caused by “one bullet passing through her left leg and then through her right leg and

continuing on.” He said that his review of her medical records indicated that she did not

suffer any “front-to-back gunshot wounds.” A gunshot to Ms. Peterkin’s back traveled “a

little bit forward and upward,” “passing along the rib cage, but not actually entering into

the body cavity. . . . breaking the ribs and . . . causing a laceration of the liver, but it’s sort

-16-

of skimming past them” and coming to rest in her chest wall. A second wound to Ms.

Peterkin’s back traveled “forward, breaks up the shoulder girdle, actually hit the bones that

hold the shoulder intact and hold it together, and then fragments. And those fragmented

bits of the bullet are actually in that area underneath the scapular spine.” Doctor Cogswell

testified that he could not discern the direction of a wound to Ms. Peterkin’s left flank,

saying that the bullet could have “passe[d] downward and backward through the buttock -

- or conversely, it could be entering the left buttock and passing upward and forward and

out the front or the flank on the left-hand side.” Ms. Peterkin suffered “a perforating wound

of the lower abdomen” that “skim[med] across the front and just goes through skin and

subcutaneous fat and then exits.” Doctor Cogswell said that that bullet traveled sideways,

but he could not discern “whether it’s coming from left to right or right to left.” The wound

to Ms. Peterkin’s left leg was “a shallow kind of wound, like the one on the abdomen. It

goes only through skin and the subcutaneous tissue and then exits the leg.” The wound on

her “right thigh actually went through skin, subcutaneous tissue and muscle and got

through the muscle of the leg and then exited out.”

Doctor Cogswell said that nothing in Ms. Peterkin’s medical records

indicated that a bullet remained in her lungs. He added, “There may be some small

fragments that still remain in her lungs. . . . I also have not seen any X-rays. So it’s

entirely possible that there is a bullet fragment still remaining in Ms. Peterkin’s lung.” A

radiologist’s report from a CT scan performed on Ms. Peterkin on February 5, 2014,

indicated that “a large bullet fragment remains embedded in the right, upper chest wall

beneath the pectoralis major” but not in the lung. Additionally, “the right scapular spine is

also fragmented next to a residual bullet fragment” and “that’s in the shoulder girdle itself.”

During cross-examination, Doctor Cogswell testified that, although Ms.

Peterkin did not suffer any life-threatening injuries, “she would suffer some significant

debility” if her injuries were not repaired. He said that, even without medical treatment,

[i]t’s unlikely that she would have died, necessarily, none of

the bullets having struck large blood vessels, so she wouldn’t

bleed to death. But, ultimately, without repair of the rib

fractures and the shoulder girdle, she would have had

significant debility. And without some support for her

ventilation, her ability to breathe, while these rib fractures were

healing, she certainly may well have gone on to die. She would

not have died, most likely, very quickly, within a matter of

minutes or hours, but over the course of a few days, she may

well have gone into extremis and died.

-17-

Doctor Cogswell agreed that Ms. Peterkin’s records indicated a bruise to her lung, but he

clarified that no bullet actually struck Ms. Peterkin’s lung, explaining that, instead, “a

combination, both, of the cavitation surrounding the bullet and the rib fragments coming

in or pushing into the chest that are going to cause the underlying lung, which is right under

the ribs, to get a bruise on it.” He said that the bruise to her lung would have made it

difficult for Ms. Peterkin to breathe. Doctor Cogswell agreed that Ms. Peterkin’s claim

that the defendant stood over her and shot her while she lay on the floor was possible but

pointed out that “the retained bullets, the bullets that were taken out of her were .45s.” He

conceded that it was possible that some of her wounds were inflicted while she lay on the

floor because his description of wound trajectory “is based on standard anatomic position,”

“which is standing upright, arms down by your sides and palms forward.”

During redirect examination, Doctor Cogswell said that only one of Ms.

Peterkin’s wounds could have been inflicted by the defendant while she was lying

completely prone on her stomach, explaining:

Well, given the scenario . . . where he’s shooting straight down,

. . . if we assume that the two bullets recovered from . . . the

wounds in the shoulder area, and those were both .45s, then,

obviously, a 9 millimeter cannot shoot a .45-caliber bullet. So

we’ve ruled out those two.

The wounds on the abdomen and on the legs are taking

a horizontal pathway. So if she’s laying prone on the ground,

that is face down on the ground, we can rule out those two.

One, her belly is in contact with the ground, so you can’t get a

gunshot wound there. The other, that would require a

horizonal pathway parallel to the floor and low down.

So we’re left with one gunshot wound. That is the

wound that’s in the left flank and left buttock area. So that

wound could have been incurred while she’s prone on the

ground with a 9 millimeter and it would be taking a forward

and upward and somewhat leftward pathway. Because the

entrance there -- given that scenario, the entrance wound would

have to be on the buttock, as opposed to the flank. And so it

would have to be passing forward. And so that could certainly

occur with her prone, and be inflicted by a 9 millimeter from

somebody standing over her.

-18-

Mr. Buford testified that he did not run out of the apartment after the

defendant took cover in the bathroom “because I wasn’t done shooting at him . . . . I had

bullets left.” Mr. Buford said that he was so focused on shooting the defendant that he did

not realize that he had shot Ms. Peterkin.

The defendant testified that he did not possess a firearm at any point on

February 4, 2014, and that he did not enter Mr. Buford’s house and try to shoot him. The

defendant acknowledged that he was not forthcoming during his interviews with the police.

He said that Mr. McCamy had been Mr. Williams’ “best friend since they were in, like,

middle school” while he and Mr. McCamy were merely acquaintances at the time of the

offenses. The defendant said that he met Mr. Buford through his “little cousin” Mr. Blance.

The defendant said that on the night of the offenses, he met Mr. McCamy “to give him

some pills” because Mr. McCamy “uses drugs. I mean, I sold him the pills.” After that,

the defendant, and Messrs. Williams and McCamy went to Mr. Williams’ residence in Mr.

McCamy’s truck. The defendant “and Mr. McCamy sat in the car in the parking lot”

smoking marijuana “while Mr. Williams went into the home to change his clothes because

he just got off of work.” The defendant maintained that he did not go into Mr. Williams’

residence that day and that he certainly did not go inside to don rubber gloves and wipe

down bullets. When Mr. Williams returned to the car, the trio “went out west, because Mr.

McCamy knew some more friends of his that wanted to buy some more pills. So we rode

out West Knoxville, out Cedar Bluff area.” The defendant testified that the men stopped

at a McDonald’s to sell pills to a couple of Mr. McCamy’s friends before going to

Executive Park near the Warren House Apartments to wait on another potential customer

who never arrived.

The defendant recalled that as the men waited for Mr. McCamy’s customer

to arrive, Adarius Boatwright approached them and asked if they had any marijuana to

sell.3 The men told Mr. Boatwright that they did not have any marijuana, but Mr. McCamy

told Mr. Boatwright, “basically, just, well, I’m going over to meet my friend, so you can

just ride with us.” The defendant testified that Mr. McCamy “had stolen a firearm from

his grandmama or something to that nature. He stole a firearm from her and he was going

to trade it to Mr. Buford for some pot.” The defendant said that he did not tell the police

that Mr. Boatwright had accompanied them to Mr. Buford’s apartment because he was

afraid of Mr. Boatwright. The defendant claimed that he knew “Mr. Boatwright to be a

dangerous man” who would not hesitate to “kill me, he’ll kill my family. He’s a leader of

gang members, sir. He runs a gang. And I didn’t want to say nothing about that.” The

defendant said that he “didn’t want to be labeled a snitch or somebody that say something

about these individuals and put my family in harm’s way,” reiterating, “I knew however it

3

Mr. Boatwright was shot and killed by a man named Marquail Patterson at a Knoxville nightclub

in July 2014. See State v. Marquail Patterson, No. E2019-01139-CCA-R3-CD (Tenn. Crim. App.,

Knoxville, June 15, 2020).

-19-

came about if I put his name in this incident, that man would have killed my family, man.

I know he would have.”

The defendant testified that he did not initially realize that the friend from

whom Mr. McCamy intended to purchase pot was Mr. Buford and said that if he had

known, “I probably wouldn’t have got into the car with him” because Mr. Buford “feels

like I had something to do with him in a prior incident, which I don’t.” The defendant said

that Mr. McCamy drove to Mr. Buford’s apartment of his own volition. He recalled that

as they walked toward the apartment, Mr. McCamy called Mr. Buford and told him that

they were on their way up, and Mr. Buford responded that the door was open. The

defendant claimed that when they got to the apartment, the door “was cracked, like, a little

bit.” He said that he was the last to enter the apartment and that Mr. Buford recognized

him just as Mr. McCamy “was going for the firearm that he was attempting to sell” to Mr.

Buford. According to the defendant, at that point, Mr. Buford “just hopped up and he shot”

in “the general direction of the door.” The defendant testified that when Mr. Buford began

firing, he “basically beelined and just ran for cover. I was scared. I was trying to get out

of his line of fire.” He said that he could not run out the door because that was the direction

of Mr. Buford’s shots. As he took cover behind a wall, he saw Mr. Boatwright “firing into

the living room.”

The defendant testified that he initially realized that he had been shot when

he was behind the wall, saying that the front of his leg felt “really hot, but it was cold at

the same time.” The defendant said that he “took a couple of steps into the bathroom” and

saw “Mr. Boatright come out of the bedroom and run into the living room. He comes out

of the room and he, like, picks up a firearm and runs out the front door.” The defendant

“believe[d] that it was the firearm that Mr. McCamy had in his console, the one that I had

seen.” The defendant insisted that he did not shoot Ms. Peterkin and that he did not even

have a gun. The defendant said that after the shooting stopped inside the apartment, he ran

out the door and across the parking lot and eventually got back into Mr. McCamy’s truck.

Mr. Williams was already in the truck; Mr. Boatright got into the truck just as the defendant

did. The defendant testified that, after that, he “kind of just faded out” and was “dipping

in and out of consciousness.”

The defendant admitted that he lied to the police during both of his

interviews. He stated that he was fearful of Mr. Boatwright. Additionally, he “was very

intoxicated” from the pain medication he was receiving when he first spoke to Investigator

Lee at the hospital. When he was released from the hospital, “the lady gave me some

medication, because she said I was going to be going with the police for an interview and

so I need to take my medication.” The defendant admitted that he wanted to talk to Mr.

Williams while they were both in jail to discuss “this incident, you know, his friend Mr.

-20-

McCamy.” I just wanted to let him know the situation, what was going on, what was being

said.” He said, “I just wanted to warn him about the court proceeding, that’s it.”

During cross-examination, the defendant testified that he did not assist Mr.

Buford in finding the people who had robbed Mr. Buford in December 2013 because he

believed that Mr. Buford would do something violent to them, and he did not want to be

involved. The defendant said that he had known Mr. Boatwright since he “was still young

enough to go to the playground” and that Mr. Boatwright’s “mentality made him violent.”

Based upon this evidence, the jury convicted the defendant as charged on all

counts. Following a sentencing hearing, the trial court imposed the following sentences:

Count(Merged Counts) Sentence RED Alignment

1(5) Class C, 8 years 35 Consecutive to Count 19

3(2,6,7) Class C, 10 years 100 Consecutive to Count 1

13(9) Class A, 20 years 85 Lead sentence

15(10,11,14) Class C, 10 years 100 Consecutive to Count 13

21(17) Class A, 20 years 85 Consecutive to Count 11

23(18,19,22) Class C, 10 years 100 Consecutive to Count 17

26(25) Class B, 15 years 35 Concurrent with Count 1

28(27) Class B, 15 years 35 Concurrent with Count 1

30(29) Class C, 8 years 35 Concurrent with Count 1

The total effective sentence imposed by the trial court was 78 years, with 30 years to be

served at 100 percent release eligibility, 40 years to be served at 85 percent release

eligibility, and eight years to be served at 35 percent release eligibility.

In this timely appeal, the defendant contends that the trial court erred by

permitting the prosecutor to read portions of the co-defendant’s inadmissible hearsay

statement during her cross-examination of the defendant and argues that the evidence was

insufficient to support his convictions of attempted first degree murder. We consider each

claim in turn.

I. Cross-Examination of the Defendant

Prior to trial, the State moved the trial court to sever the defendant’s trial

from Mr. Williams’. Mr. Williams did not testify at the defendant’s trial. During her cross-

examination of the defendant, the prosecutor attempted to “impeach” the defendant

purportedly using a statement that Mr. Williams provided to the police following his arrest.

The prosecutor asked the following questions and made the following remarks with regard

to Mr. Williams’ statement:

-21-

Q. Got you. Now, again, during the course of

discovery, you are aware of Mr. Joshua Williams’ statement

that he gave to Investigator Lee, right?

A. When . . . he talked -- I wasn’t with him when he

talked to Mr. Lee.

Q. No. No. I’m saying, in the course of receiving

discovery, like all this stuff that we’ve introduced to the jury,

you’ve known about, right? Like the photographs, you’ve

seen; the recorded statements of the witnesses, you’ve heard -

-

A. Yes.

Q. -- right?

A. Yes, to a degree.

Q. You’ve heard Mr. Williams’ statement, right?

Both of his statements?

A. No. I haven’t -- haven’t heard them personally,

but I was aware that he made two statements. I seen it on that

piece of paper that you gave, yes, ma’am.

Q. So you are not aware that Mr. Williams admits

to going up to the apartment complex?

A. No, ma’am. I was not aware of that.

Q. You’re not aware --

A. Excuse me. Like I told you, . . . I didn’t see him

go up to the apartment. He didn’t tell me he went up to the

apartment, and so . . .

Q. So you’re not aware that Mr. Williams admits to

going up to the apartment complex with you?

-22-

A. No, ma’am. I was unaware of that.

Q. And as far as you know, that didn’t happen,

right?

A. Correct.

Q. He wasn’t out there with you?

A. No. He didn’t walk up there with me.

Q. Are you aware that Mr. Williams admits --

The defendant objected, arguing that this back-door attempt to admit Mr. Williams’ clearly

inadmissible statement violated not only the hearsay rule but also the defendant’s

constitutional right to confront the witnesses against him. The prosecutor inexplicably

argued that the defendant had “opened the door” to her “impeaching his statement” with

the contents of Mr. Williams’ statement. After denying the defendant’s request for a jury-

out hearing on the basis that he did not want to unnecessarily prolong the trial and risk

“losing” the jury, the trial court ruled that the line of questioning could continue because

the prosecutor had “enjoined . . . the facts and circumstances that are consistent with his

testimony.” Much of this discussion is inaudible, making it clear that a jury-out hearing in

open court should have been granted to preserve the record for our review. The defendant

moved for a mistrial on grounds that the line of questioning violated the Confrontation

Clause and that the court’s refusal to permit him to be heard in a jury-out hearing violated

principles of due process. The trial court denied the motion, and the prosecutor continued

her line of questioning:

Q. Are you aware that Mr. Williams has admitted

that -- in his statement to Charles Lee --

A. No, ma’am.

Q. --that Exhibit 203 --

A. No, ma’am.

Q. -- that this was his toboggan that he was

wearing?

A. No, ma’am. No, ma’am.

-23-

Q. And you’re aware -- because I know you paid

attention to the evidence -- that this is the toboggan --

A. That --

Q. -- that was found --

A. When I --

Q. Okay. Well, were you aware that this was the

toboggan that was found in the apartment complex?

....

Q. All right. Now, additionally, you were not aware

that Mr. Williams admitted to going up to the apartment with

you?

A. No.

Q. And were you aware that Mr. Williams didn’t

say anything at all about Adarius Boatwright being there with

y’all?

A. I can’t account for what Mr. Williams did or did

not say, ma’am. I was not there. So I don’t -- I don’t know

what you want me to say. I don’t -- I wasn’t there --

Q. No. No.

A. I don’t know what he told him, or him, or her, or

none of them. I wasn’t there, so I couldn’t tell you. I didn’t

watch the tape. He hasn’t showed me any tape that this is Mr.

Williams talking to Mr. Lee or Mr. Terry, no, ma’am. I don’t

know. I don’t know.

Q. I’m just --

A. I simply don’t know.

-24-

Q. Yes sir.

I’m just pointing out some things.

....

Q. And I’m just pointing out that you’re saying

some things that are different than what other people have said.

....

Q. And are you aware that Mr. Williams admits to

being there in that location?

A. Once again --

Q. Are you aware?

A. When? When would I be aware of Mr. Williams

admitting to this?

At the conclusion of the trial, the defendant asked the trial court to reiterate

its ruling regarding the prosecutor’s using Mr. Williams’ statement to question the

defendant. The trial court stated:

The Court ruled, first of all, that the . . . Court felt it was

justified for the State to bring that up in view of other hearsay

testimony that had previously been admitted.

The Court also found that there was not a Sixth

Amendment confrontation right, a Crawford violation because

the testimony of -- in reference to the testimony of Mr.

Williams, that he did go up on the landing, was not, in any way,

accusatory of the defendant, it didn’t accuse him of doing

anything wrong. Obviously, was not prepared for . . . this

litigation and was not testimony of a nature, he simply -- the

statement alluded to was simply an admission on Mr.

Williams’ part that he did go up, at least -- and participated in

the robbery, at least to the point of getting to the door with the

others.

And the Court will stand by that ruling.

The defendant contends that the trial court erred by permitting the State to

“clearly relate” Mr. Williams’ statement via the cross-examination of the defendant, in

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violation of his right to confront the witnesses against him. The State argues that because

the remarks of counsel are not evidence, the prosecutor’s use of Mr. Williams’ out-of-court

statements to cross-examine the defendant did not violate the rule against hearsay or the

defendant’s confrontation right.

A. Impeachment

Following the defendant’s initial objection, the prosecutor indicated that her

purpose in confronting the defendant with Mr. Williams’ statement was to impeach the

defendant with Mr. Williams’ statement. Her argument in this regard, however, indicates

a misunderstanding of the concept of impeachment by a prior inconsistent statement.

Mr. Williams’ statement does not fall within the ambit of Rule 613 because

it cannot qualify as a prior inconsistent statement by the defendant because it is not a

statement made by the defendant. At most, Mr. Williams’ statement would be proof that

Mr. Williams told the police that he went up to Mr. Buford’s apartment, contrary to the

defendant’s testimony that Mr. Williams had remained in the car. Thus, the only possible

use of the statement was to impeach the defendant through fact contradiction, a device that

is recognized by our courts. See, e.g., State v. Jeremy Sims and Sherry Brookshire, No.

W2013-01253-CCA-R3-CD, slip op. at 20 (Tenn. Crim. App., Jackson, Sept. 25, 2015);

see also, e.g., State v. McKinney, 74 S.W.3d 291, 317 (Tenn. 2002) (appendix). Fact

contradiction is a long-standing impeachment device that is indigenous to cross-

examination and enjoys implied currency in our rules of evidence; it emanates simply from

the power to attack a witness’s credibility as expressed in Tennessee Rule of Evidence 607.

See Neil P. Cohen et al., Tennessee Law of Evidence § 6.07[4][a] (6th ed. 2011). Through

fact contradiction, a cross-examining party inquires about facts that conflict with the

witness’s testimony to show indirectly that the witness is untruthful. See id. Importantly,

however, fact contradiction as a method of impeachment is generally limited to

“challeng[ing] the accuracy of any relevant facts during cross-examination.” See id., §

6.07[b]. 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 which is not

relevant is not admissible.” Tenn. R. Evid. 402. What Mr. Williams told the police about

his location during the offenses did not make any fact of consequence in the defendant’s

trial more or less probable, and, in consequence, it was irrelevant.

B. Hearsay/Confrontation Clause

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these

-26-

rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide

exceptions to the general rule of inadmissibility of hearsay.

Our supreme court has confirmed that “[t]he standard of review for rulings

on hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.

2015). The “factual and credibility findings” made by the trial court when considering

whether a statement is hearsay, “are binding on a reviewing court unless the evidence in

the record preponderates against them.” Id. (citing State v. Gilley, 297 S.W.3d 739, 759-

61 (Tenn. Crim. App. 2008)). “Once the trial court has made its factual findings, the next

questions—whether the facts prove that the statement (1) was hearsay and (2) fits under

one [of] the exceptions to the hearsay rule—are questions of law subject to de novo

review.” Kendrick, 454 S.W.3d at 479 (citing State v. Schiefelbein, 230 S.W.3d 88, 128

(Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.

2005)); see also Gilley, 297 S.W.3d at 760 (stating that because “[n]o factual issue attends”

the trial court’s determination whether a statement is hearsay, “it necessarily is a question

of law”). “If a statement is hearsay, but does not fit one of the exceptions, it is inadmissible,

and the court must exclude the statement. But if a hearsay statement does fit under one of

the exceptions, the trial court may not use the hearsay rule to suppress the statement.”

Kendrick, 454 S.W.3d at 479; see also Gilley, 297 S.W.3d at 760-61.

In addition to the ban on hearsay found in the rules of evidence, the Sixth

Amendment to the federal constitution and article I, section 9 of the Tennessee Constitution

afford the criminal accused the right to confront the witnesses against him. See U.S. Const.

amend. VI; Tenn. Const. art. I, § 9. Although the provisions are not coterminous, our

supreme court has “expressly adopted and applied the same analysis used to evaluate

claims based on the Confrontation Clause of the Sixth Amendment.” State v. Dotson, 450

S.W.3d 1, 62 (Tenn. 2014) (citing State v. Parker, 350 S.W.3d 883, 898 (Tenn. 2011);

State v. Franklin, 308 S.W.3d 799, 809-10 (Tenn. 2010); State v. Cannon, 254 S.W.3d 287,

301 (Tenn. 2008); State v. Lewis, 235 S.W.3d 136, 145 (Tenn. 2007)). In Crawford v.

Washington, the United States Supreme Court departed from decades-long precedent and

held for the first time that “[w]here testimonial evidence is at issue . . . the Sixth

Amendment demands . . . unavailability and a prior opportunity for cross-examination.”

Crawford v. Washington, 541 U.S. 36, 68 (2004). “Where nontestimonial hearsay is at

issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their

development of hearsay law.” Id. Because the Confrontation Clause does not bar

nontestimonial hearsay, see Davis v. Washington, 547 U.S. 813, 823-24 (2006); Whorton

v. Bockting, 549 U.S. 406, 420 (2007), “the threshold question in every case where the

Confrontation Clause is relied upon as a bar to the admission of an out-of-court statement

is whether the challenged statement is testimonial.” Dotson, 450 S.W.3d at 63 (citing

Cannon, 254 S.W.3d at 301).

-27-

The Crawford court identified, for illustrative purposes, a “core class of

‘testimonial’ statements”: “ex parte in-court testimony or its functional equivalent—that

is, material such as affidavits, custodial examinations, prior testimony that the defendant

was unable to cross-examine, or similar pretrial statements that declarants would

reasonably expect to be used prosecutorially”; “extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony, or

confessions”; and “statements that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use at a

later trial.” Crawford, 541 U.S. at 51-52 (alteration in original) (citations omitted).

Similarly, the court observed that some “statements . . . by their nature were not

testimonial,” including, among other things, “business records.” Id.; Dotson, 450 S.W.3d

at 64. The Supreme Court has also recognized that “medical reports created for treatment

purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305,

312 n.2 (2009); see also Cannon, 254 S.W.3d at 303 (statements in medical records given

for the primary purpose of medical diagnosis and treatment are nontestimonial). Thus,

statements that are properly categorized as business records or medical records are

nontestimonial, and the Confrontation Clause has no application to their admission into

evidence. Cannon, 254 S.W.3d at 303.

For those statements that are not easily classified as nontestimonial, our

supreme court has concluded that “a statement is testimonial at least when it passes the

basic evidentiary purpose test plus either the . . . targeted accusation requirement” adopted

by the plurality of the Supreme Court in Williams v. Illinois, 567 U.S. 50 (2012), or the

“formality criterion” espoused by Justice Thomas in his concurring opinion in Williams,

stating that “[o]therwise put, . . . an out-of-court statement is testimonial . . . if its primary

purpose is evidentiary and it is either a targeted accusation or sufficiently formal in

character.” Dotson, 450 S.W.3d at 69 (quoting Young v. United States, 63 A.3d 1033,

1043-44 (D.C. 2013)).

Without question, Mr. Williams’ statement qualified as hearsay. Moreover,

the value of the statement lay in its truth because the prosecutor’s purpose in referencing

the statement was to imply that the defendant’s own testimony was untrue. Furthermore,

there can be no serious question but that the primary purpose of Mr. Williams’ statement

to the police qualified as testimonial under the loose framework announced in Williams

and adopted in Dotson. Indeed, “material such as . . . custodial examinations” and

“extrajudicial statements . . . contained in formalized testimonial materials, such as . . .

confessions” were included in the list of a “core class of ‘testimonial’ statements.” See

Crawford, 541 U.S. at 51-52. Thus, the statement itself was clearly inadmissible. Here,

however, the State did not actually seek admission of the statement but instead used its

contents to question the defendant. Although it is true that “the statements made by counsel

during the course of a hearing, trial, or argument” are not evidence, see State v. Roberts,

-28-

755 S.W.2d 833, 836 (Tenn. Crim. App. 1988), this court has previously held that “a cross-

examination in extensive detail about a witness’s prior statement is tantamount to an

introduction of the statement,” State v. Vaughan, 144 S.W.3d 391, 408 n.2 (Tenn. Crim.

App. 2003) (permitting the introduction of the balance of witness’s statement under

evidence rule 106 where witness was cross-examined about statement but statement was

not offered into evidence); see also State v. Belser, 945 S.W.2d 776, 788 (Tenn. Crim. App.

1996); State v. Dylan Brewer, No. W2017-01725-CCA-R3-CD, 2019 WL 1109917, at *14

(Tenn. Crim. App., Jackson, Mar. 11, 2019). Thus, the prosecutor’s extensive questioning

of the defendant with the contents of Mr. Williams’ inadmissible statement was tantamount

to the admission of the statement itself. In essence, the State took evidence that was clearly

inadmissible as part of its case in chief and impermissibly “tried to smuggle it in on cross-

examinaton” of the defendant. Walder v. United States, 347 U.S. 62, 66 (1954).

That being said, because the evidence of the defendant’s guilt was substantial

and because neither Mr. Williams’ location during the offenses nor the ownership of the

toboggan was particularly consequential, it is our view that the error was harmless beyond

a reasonable doubt. See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (“We have recognized

that other types of violations of the Confrontation Clause are subject to that harmless-error

analysis, see e.g., Delaware v. Van Arsdall, 475 U.S. [673, 679, 684 (1986)], and see no

reason why denial of face-to-face confrontation should not be treated the same.”).

II. Sufficiency

The defendant contends that the evidence was insufficient to support his

convictions of attempted first degree murder because the State failed to present any

evidence of premeditation. Sufficient evidence exists to support a conviction if, after

considering the evidence—both direct and circumstantial—in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.

307, 319 (1979); State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will

neither re-weigh the evidence nor substitute its inferences for those drawn by the trier of

fact. Dorantes, 331 S.W.3d at 379. The verdict of the jury resolves any questions

concerning the credibility of the witnesses, the weight and value of the evidence, and the

factual issues raised by the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

As charged in this case, “[f]irst degree murder is . . . “[a] premeditated and

intentional killing of another.” T.C.A. § 39-13-202(a)(1). As used in Code section 39-13-

202,

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“premeditation” is an act done after the exercise of reflection

and judgment. “Premeditation” means that the intent to kill

must have been formed prior to the act itself. It is not necessary

that the purpose to kill preexist in the mind of the accused for

any definite period of time. The mental state of the accused at

the time the accused allegedly decided to kill must be carefully

considered in order to determine whether the accused was

sufficiently free from excitement and passion as to be capable

of premeditation.

T.C.A. § 39-13-202(d). Criminal attempt is committed when a person, “acting with the

kind of culpability otherwise required for the offense,” does one of the following:

(1) Intentionally engages in action or causes a result that would

constitute an offense, if the circumstances surrounding the

conduct were as the person believes them to be;

(2) Acts with intent to cause a result that is an element of the

offense, and believes the conduct will cause the result without

further conduct on the person’s part; or

(3) Acts with intent to complete a course of action or cause a

result that would constitute the offense, under the

circumstances surrounding the conduct as the person believes

them to be, and the conduct constitutes a substantial step

toward the commission of the offense.

Id. § 39-12-101(a).

Noting that “[p]roof of premeditation is inherently circumstantial,” this court

has observed that “[t]he trier of fact cannot speculate what was in the killer’s mind, so the

existence of premeditation must be determined from the defendant’s conduct in light of the

circumstances surrounding the crime.” State v. Gann, 251 S.W.3d 446, 455 (Tenn. Crim.

App. 2007). Thus, when evaluating the sufficiency of proof of premeditation, the appellate

court may look to the circumstances surrounding the killing. See, e.g., State v. Bland, 958

S.W.2d 651, 660 (Tenn. 1997); State v. Coulter, 67 S.W.3d 3, 72 (Tenn. Crim. App. 2001).

Such circumstances may include “the use of a deadly weapon upon an unarmed victim; the

particular cruelty of the killing; declarations by the defendant of an intent to kill; evidence

of procurement of a weapon; preparations before the killing for concealment of the crime[;]

and calmness immediately after the killing.” Bland, 958 S.W.2d at 660.

-30-

The defendant argues that the State failed to establish that he acted with

premeditation with regard to either Mr. Buford or Ms. Peterkin, pointing to testimony that

he fired his weapon in response to Mr. Buford’s firing his own weapon. He contends that

he “reacted in self-defense” and that he was “not ‘sufficiently free from excitement or

passion’” when he fired his weapon inside the apartment. He also asserts that the State

failed to establish that he acted with the intent to kill Ms. Peterkin because the only bullet

from his gun that arguably struck Ms. Peterkin caused a wound to her “back side,” arguing

that “[s]hooting a person in the buttocks does not show an intent to kill.”

Mr. Buford

The evidence in this case, examined in the light most favorable to the State,

established that the defendant, Mr. Williams, and a third man concocted a plan to use Mr.

McCamy’s relationship with Mr. Buford to create a ruse to gain entry into Mr. Buford’s

apartment for the purpose of robbing him. To this end, the men armed themselves with

handguns and forced Mr. McCamy to first arrange a meeting with Mr. Buford and then

drive the men to Mr. Buford’s apartment. All did not go according to plan. As soon as he

saw the defendant, Mr. Buford raised his own weapon, and the defendant began shooting.

Mr. Buford returned fire, and he candidly admitted that he intended to kill the defendant.

Mr. Buford continued to fire his weapon until the clip was empty, and then he ran outside.

Outside, Mr. Buford heard someone, presumably one of the perpetrators, shout, “‘Kill that

young n*****,’” before he was shot in the wrist and leg. This evidence evinces both

premeditation and an intent to kill on the part of the shooter. No evidence suggested that

the defendant planned to kill Mr. Buford, and Mr. Buford testified that the defendant did

not actually aim his weapon at Mr. Buford but was “just waving it around like he was . . .

on something that night because he was really, really jittery and like just jumping around.”

Nevertheless, we conclude that the evidence was sufficient to support a finding of guilt

based upon the defendant’s criminal responsibility for the actions of his cohorts because

the shooting of Mr. Buford was a natural and probable consequence of the planned armed

home invasion robbery. See State v. Dickson, 413 S.W.3d 735, 744 (Tenn. 2013) (holding

that “[a] natural and probable consequence of [Dickson’s] attempt to obtain money and

drugs by force was the shooting of two unarmed victims”).

“A person is criminally responsible as a party to an offense, if the offense is

committed by the person’s own conduct, by the conduct of another for which the person is

criminally responsible, or by both.” T.C.A. § 39-12-401. “[C]riminal responsibility is not

a separate, distinct crime” but is instead “a theory by which the State may prove the

defendant’s guilt of the alleged offense . . . based upon the conduct of another person.”

State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Criminal responsibility “is a

codification of the common-law theories of aiding and abetting and accessories before the

-31-

fact.” Id. at 171 (citing State v. Carson, 950 S.W.2d 951, 955 (Tenn. 1997)). “No particular

act need be shown, and the defendant need not have taken a physical part in the crime in

order to be held criminally responsible.” State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim.

App. 2002). Criminal responsibility “requires that a defendant act with a culpable mental

state, [i.e.], the ‘intent to promote or assist the commission of the offense or to benefit in

the proceeds or results of the offense.’” Carson, 950 S.W.2d at 954 (quoting T.C.A. § 39-

11-402(2) (1991)). The “natural and probable consequences rule,” which “survived the

codification of the common law into the criminal responsibility statutes,” “extends the

scope of criminal liability to the target crime intended by a defendant as well as to other

crimes committed by a confederate that were the natural and probable consequences of the

commission of the original crime.” State v. Howard, 30 S.W.3d 271, 276 (Tenn. 2000)

(citing Carson, 950 S.W.2d at 954-55). The defendant and his confederates armed

themselves and forced their way into Mr. Buford’s apartment for the purpose of robbing

him. At least one of those confederates declared an intent to kill Mr. Buford before firing

a gun at Mr. Buford. Although Mr. Buford was armed with the Kimber .45, he had run out

of ammunition and was attempting to flee the scene when he was shot outside his

apartment. These facts support a conclusion that the attempt on Mr. Buford’s life was

premeditated. See Bland, 958 S.W.2d at 660.

Ms. Peterkin

The defendant argues that because he did not know Ms. Peterkin would be at

Mr. Buford’s apartment, because the State could tie him to only one of her wounds, and

because a gunshot aimed at the buttock does not evince an intent to kill, the evidence was

insufficient to support his conviction of the attempted first degree murder of Ms. Peterkin.

No evidence suggested that the defendant knew that Ms. Peterkin and Ms. Walker would

be at Mr. Buford’s apartment. Indeed, Mr. Buford, Ms. Walker, and Ms. Peterkin testified

that the women decided at the last minute to visit Mr. Buford on their way home from

picking up their dinner. Forensic evidence suggested that Mr. Buford actually inflicted the

majority of Ms. Peterkin’s wounds. Indeed, Dr. Cogswell testified that only one of Ms.

Peterkin’s wounds could have occurred as a result of someone firing at her “backside” as

she lay prone on the ground and that, “given that scenario, the entrance wound would have

to be on the buttock.” We disagree with the defendant, however, that these facts prevent a

finding that the defendant acted with the intent to kill Ms. Peterkin. Examined in the light

most favorable to the State, the evidence established that the defendant, Mr. Williams, and

a third man, armed with handguns and acting in concert, forced their way into Mr. Buford’s

apartment, where a gunfight ensued. During the barrage, Ms. Peterkin suffered a number

of gunshot wounds. Ms. Peterkin testified that the defendant stood over her and fired a

single shot at her as she lay on the ground. Firing a gun at a clearly wounded and bleeding

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victim while she lays prostrate certainly supports a finding that the defendant attempted a

premeditated and intentional killing.4

Firearms Convictions

Although the defendant does not challenge the sufficiency of the evidence

with regard to his remaining convictions, we perceive an insufficiency of the evidence

supporting the defendant’s convictions of employing a firearm during the commission of a

dangerous felony after having been previously convicted of a dangerous felony. Code

section 39-17-1324 provides that the offense of employing a firearm during the

commission of a dangerous felony “is a Class C felony, punishable by a mandatory

minimum six-year sentence to the department of correction,” unless “the defendant, at the

time of the offense, had a prior felony conviction,” in which case it “is a Class C felony,

punishable by a mandatory minimum ten-year sentence to the department of correction.”

T.C.A. § 39-17-1324(a), (h)(1)-(2). Code section 39-17-1324 also provides that “prior

conviction” for purposes of the statute “means that the person serves and is released or

discharged from, or is serving, a separate period of incarceration or supervision for the

commission of a dangerous felony prior to or at the time of committing a dangerous felony

on or after January 1, 2008.” Id. § 39-17-1324(i)(2)(A) (emphasis added). That term also

“includes convictions under the laws of any other state, government or country that, if

committed in this state, would constitute a dangerous felony.” Id. § 39-17-1324(i)(2)(B)

(emphasis added). The statute also defines “dangerous felony”:

(i) As used in this section, unless the context otherwise

requires:

(1) “Dangerous felony” means:

(A) Attempt to commit first degree murder, as defined in §§

39-12-101 and 39-13-202;

(B) Attempt to commit second degree murder, as defined in §§

39-13-210 and 39-12-101;

(C) Voluntary manslaughter, as defined in § 39-13-211;

(D) Carjacking, as defined in § 39-13-404;

4

The State argued at trial that the defendant was responsible for the gunshot wounds that Mr. Buford

inflicted on Ms. Peterkin because Mr. Buford’s shooting Ms. Peterkin was a natural and probable

consequence of the planned home invasion robbery, arguing during closing, “And under criminal

responsibility, whether the bullets that are in Ms. Peterkin come from Mr. Buford or whether they come

from [the defendant], he is responsible, because, but for him entering the apartment, it never would have

happened.” This is a misstatement of law because, as indicated, the natural and probable consequences rule

is a function of criminal responsibility for the crimes committed “by a confederate.” See Howard, 30

S.W.3d at 276. Because Mr. Buford was not the defendant’s confederate, the defendant cannot be held

responsible for his actions.

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(E) Especially aggravated kidnapping, as defined in § 39-13-

305;

(F) Aggravated kidnapping, as defined in § 39-13-304;

(G) Especially aggravated burglary, as defined in § 39-14-404;

(H) Aggravated burglary, as defined in § 39-14-403;

(I) Especially aggravated stalking, as defined in § 39-17-

315(d);

(J) Aggravated stalking, as defined in § 39-17-315(c);

(K) Initiating the process to manufacture methamphetamine, as

defined in § 39-17-435;

(L) A felony involving the sale, manufacture, distribution or

possession with intent to sell, manufacture or distribute a

controlled substance or controlled substance analogue defined

in part 4 of this chapter; or

(M) Any attempt, as defined in § 39-12-101, to commit a

dangerous felony;

Id. § 39-17-1324(i)(1).

The most basic principle of statutory construction is “ ‘to ascertain and give

effect to the legislative intent without unduly restricting or expanding a statute's coverage

beyond its intended scope.’” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678

(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative

intent is determined ‘from the natural and ordinary meaning of the statutory language

within the context of the entire statute without any forced or subtle construction that would

extend or limit the statute's meaning.’” Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004)

(quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the statutory

language is clear and unambiguous, we apply the plain language in its normal and accepted

use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State v. Nelson, 23

S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous that we may

reference the broader statutory scheme, the history of the legislation, or other sources.” In

re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn. Mun. League

Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)). Importantly, “[e]very word in a

statute ‘is presumed to have meaning and purpose, and should be given full effect if so

doing does not violate the obvious intention of the Legislature.’” Waters v. Farr, 291

S.W.3d 873, 881 (Tenn. 2009) (quoting In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005)).

Code section 39-17-1324 specifically defines a “prior conviction” using the

term “dangerous felony,” which is itself defined within the statute as any one of 12 specific

felony offenses. The defendant had prior convictions of aggravated assault and attempted

robbery, neither of which is included in the list of dangerous felonies. Another panel of

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this court confronted with the same issue determined, “based on the statutory language and

the history of the legislation, that a ‘prior felony conviction,’ as the term is used in

subsections (f), (g)(2), and (h)(2), must be for a dangerous felony under the statute.” Josh

L. Bowman v. State, No. E2016-01028-CCA-R3-PC, slip op. at 7 (Tenn. Crim. App.,

Knoxville, Apr. 24, 2017). The Josh L. Bowman panel examined the legislative history of

the act, observing that, although “the bill was initially drafted so that the qualifying prior

felony was not required to be a dangerous felony under the statute and so that the definition

in subsection (i) was for a ‘[p]rior felony conviction’ rather than for a ‘[p]rior conviction,’”

subsequent amendments retained “the phrase ‘prior felony conviction,’ in subsections (f),

(g), and (h),” but “changed the statutory definition from a ‘[p]rior felony conviction’ in

subsection (i) . . . to a ‘[p]rior conviction,’ the language which ultimately survives in

subsection (i) of the statute” and which “restricts ‘prior convictions’ to previous

convictions ‘for the commission of a dangerous felony.’” Id., slip op. at 9-10. The panel

concluded that the General Assembly intended “to revise the bill to require the prior

conviction to be for a dangerous felony but neglected to change the language in subsections

(f), (g)(2), and (h)(2) to conform with the revisions.” Id., slip op. at 10. The panel also

noted that Code section 39-17-1324(f) requires the trier of fact to determine whether the

defendant “had a prior qualifying conviction,” leading “to the inference that the prior

conviction must be for a dangerous felony.” Id., slip op. at 11.

We find the reasoning of the Josh L. Bowman panel to be sound and hold that

the defendant’s prior convictions of aggravated assault and attempted robbery are not

qualifying convictions for the sentence enhancement in Code section 39-17-1324(h)(2)

because they are not included in the list of dangerous felonies in Code section 39-17-

1324(i). Accordingly, the evidence was insufficient to support the defendant’s convictions

in Counts 3, 7, 11, 15, 19, and 23, and, in consequence, the defendant’s convictions in those

counts are vacated and dismissed. The pair of convictions of employing a firearm during

the commission of a dangerous felony in Counts 2 and 6 that were lesser included offenses

of Counts 3 and 7 survive as a single conviction of employing a firearm during the

commission of aggravated burglary.5 The pair of convictions of employing a firearm

during the commission of a dangerous felony in Counts 10 and 14 that were lesser included

offenses of Counts 11 and 15 survive as a single conviction of employing a firearm during

the commission of the attempted murder of Ms. Peterkin.6 Finally, the pair of convictions

for employing a firearm during the commission of a dangerous felony in Counts 18 and 22

that were lesser included offenses of Counts 19 and 23 survive as a single conviction of

employing a firearm during the commission the attempted murder of Mr. Buford.7 We

remand the case to the trial court for the entry of corrected judgment forms reflecting the

5

Count 7 was merged into Count 3 by the trial court.

6

Count 11 was merged into Count 15 by the trial court.

7

Count 19 was merged into Count 23 by the trial court.

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proper merger of these convictions and the imposition of a six-year mandatory minimum

period of incarceration. See T.C.A. § 39-17-1324(h)(1).

At this point, we would be remiss not to address the form of the indictment

in this case. The State elected to charge as 24 separate counts nine offenses: especially

aggravated burglary, attempted first degree murder of Aundre Buford, attempted first

degree murder of Macee Peterkin, aggravated assault of John McCamy, aggravated assault

of Janae Walker, employing a firearm during the commission of the especially aggravated

burglary and the two attempted murders, and having been a felon in possession of a firearm.

Eight counts of the indictment charge four single offenses by alternative means: (1) Counts

1 and 5 charge especially aggravated burglary, (2) Counts 25 and 26 charge aggravated

assault of Mr. McCamy, (3) Counts 27 and 28 charge aggravated assault of Ms. Walker,

and (4) Counts 29 and 30 charge the defendant with having been a felon in possession of a

firearm. The Code provides, however, that “[w]hen the offense may be committed by

different forms, by different means or with different intents, the forms, means or intents

may be alleged in the same count in the alternative.” T.C.A. § 40-13-206(a); see also id.

§ 40-18-112.8 Counts 2 and 6 are identical in all respects, as are Counts 3 and 7; Counts

10, 14, and 18; and Counts 11, 15, and 19. Code section 40-13-202 requires that an

indictment “state the facts constituting the offense in ordinary and concise language,

without prolixity or repetition, in a manner so as to enable a person of common

understanding to know what is intended and with that degree of certainty which will enable

the court . . . to pronounce the proper judgment.” T.C.A. § 40-13-202 (emphasis added).

Counts 2, 6, 9, 10, 14, 17, 18, and 22 charge lesser included offenses of other counts within

the indictment and, as a result, need not have been pleaded separately because they were,

by definition, included within the greater charge. See id. § 40-18-110.

Charging a single offense in more than one count of an indictment results in

multiplicity. See United States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001) (citing United

States v. Ketchum, 320 F.2d 3, 8 (2d Cir.), cert. denied, 375 U.S. 905 (1963)); see also

United States v. Rimell, 21 F.3d 281, 287 (8th Cir. 1994) (citing Gerberding v. United

States, 471 F.2d 55, 58 (8th Cir. 1973)). Two concerns arise when jurors are permitted to

consider multiplicitous charges. See State v. Desirey, 909 S.W.2d 20, 27 (Tenn. Crim.

8

Code section 40-18-112 provides:

“Where the intent with which, the mode in, or the means by which, an act is done

are essential to the commission of the offense, and the offense may be committed with

different intents, in different modes, or by different means, if the jury is satisfied that the

act was committed with one (1) of the intents, in one (1) of the modes, or by either of the

means charged, the jury shall convict, although uncertain as to which of the intents charged

existed, or which mode, or by which of the means charged, the act was committed.”

T.C.A. § 40-18-112.

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App. 1995). First, multiplicity “can lead to multiple convictions and punishment for only

one offense.” State v. Whitmore, No. 03C01-9404-CR-00141, 1997 WL 334904, at *9

(Tenn. Crim. App., Jackson, June 19, 1997) (citing Desirey, 909 S.W.2d at 27 (citations

omitted)). The potential for multiple punishments can be, as it was in this case, cured by a

merger of offenses. That being said, the necessity of merging multiple jury verdicts

presents opportunity for error, as evidenced in this case by the fact that the trial court had

to enter three separate sets of corrected judgments to address errors attributable to merger.

As a result of the multiplicitous indictment in this case, the judgment forms and corrected

judgment forms account for nearly 10 percent of the technical record.

Second, and perhaps more insidious, “multiplicity may carry the potential of

unfair prejudice, such as suggesting to the jury that a defendant is a multiple offender or

falsely bolstering the state’s proof on such issues as the defendant’s motive or knowledge

of wrongdoing.” Whitmore, at *9.

The prosecution’s ability to bring multiple charges increases

the risk that the defendant will be convicted on one or more of

those charges. The very fact that a defendant has been arrested,

charged, and brought to trial on several charges may suggest to

the jury that he must be guilty of at least one of those crimes.

Moreover, where the prosecution’s evidence is weak, its ability

to bring multiple charges may substantially enhance the

possibility that, even though innocent, the defendant may be

found guilty on one or more charges as a result of a

compromise verdict.

Ball v. United States, 470 U.S. 856, 867-68 (1985) (Stevens, J., dissenting). Indeed, even

when “multiplicitousness never places a defendant in jeopardy of multiple sentences, the

prolix pleading may have some psychological effect upon a jury by suggesting to it that

defendant has committed not one but several crimes.” United States v. Mamber, 127 F.

Supp. 925, 927 (D. Mass. 1955); see also, e.g., United States v. Sue, 586 F.2d 70, 71-72

(8th Cir. 1978). Because of the potential for error, multiplicity should be avoided whenever

possible. We have noted before the disconcerting trend toward overly-complicated and

voluminous indictments and have expressed concern that indictments of this kind serve no

legal purpose and instead serve only to invite confusion and error. Indeed, there is some

evidence in this case that the proverbial piling on of unnecessary counts of the indictment

operated to prejudice the defendant because he was convicted of all charged offenses

despite that the evidence was insufficient to support six of those offenses. To compound

matters, the trial court rejected all efforts to improve the indictment. The defendant tried

to challenge the indictment prior to trial, arguing correctly that the defendant’s convictions

of attempted robbery and aggravated assault did not qualify as prior convictions for the

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purposes of the sentencing enhancement in Code section 39-17-1324. The trial court,

swayed by the State’s misreading of the statute, rejected the argument.

III. Conclusion

The trial court erred by permitting the State to cross-examine the defendant

using the statement of his co-defendant, but that error can be classified as harmless beyond

a reasonable doubt. The evidence was sufficient to support the defendant’s convictions of

the attempted first degree murder of Mr. Buford and Ms. Peterkin. Because the defendant’s

previous felony convictions do not qualify as prior convictions under the terms of Code

section 39-17-1324, the defendant’s convictions of employing a firearm during the

commission of a dangerous felony after having been previously convicted of a dangerous

felony in Counts 3, 7, 11, 15, 19, and 23 are vacated and dismissed. The pair of convictions

of employing a firearm during the commission of a dangerous felony in Counts 2 and 6

that were lesser included offenses of Counts 3 and 7 survive as a single conviction of

employing a firearm during the commission of aggravated burglary. The pair of

convictions of employing a firearm during the commission of a dangerous felony in Counts

10 and 14 that were lesser included offenses of Counts 11 and 15 survive as a single

conviction of employing a firearm during the commission of the attempted murder of Ms.

Peterkin. The pair of convictions of employing a firearm during the commission of a

dangerous felony in Counts 18 and 22 that were lesser included offenses of Count 19 and

23 survive as a single conviction of employing a firearm during the commission of the

attempted murder of Mr. Buford. The case is remanded to the trial court for the entry of

corrected judgment forms reflecting the proper merger of these convictions and the

imposition of a six-year mandatory minimum period of incarceration. See T.C.A. § 39-17-

1324(h)(1). The judgments of the trial court are otherwise affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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