The opinion
06/22/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
November 19, 2019 Session
STATE OF TENNESSEE v. JEREMY REYNOLDS
Appeal from the Criminal Court for Hamilton County
No. 290147 Barry A. Steelman, Judge
No. E2018-01732-CCA-R3-CD
The Defendant, Jeremy Reynolds, appeals his Hamilton County Criminal Court jury
conviction for first degree premeditated murder. See Tenn. Code Ann. § 39-13-202. On
appeal, the Defendant argues that (1) the evidence was insufficient to support his
conviction; (2) the trial court erred by admitting evidence that the Defendant and other
individuals were gang members in violation of Tennessee Rules of Evidence 403 and
404(b); (3) exculpatory evidence, namely the victim’s gunshot residue test and a
photograph referenced by the gang report, were improperly withheld by the State; (4) the
trial court erred by failing to compel the State to produce the above-referenced gunshot
residue test and photograph; and (5) the cumulative effect of these errors deprived the
Defendant of a fair trial. After a thorough review of the record and applicable law, we
conclude that the evidence is insufficient relevant to premeditation and that some of the
evidence relative to gangs was improperly admitted. We remand for a new trial on one
count of second degree murder, in which some gang evidence shall be excluded.
Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed; Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and JAMES CURWOOD WITT, JR., JJ., joined.
John G. McDougal (at trial and on appeal) and Chris Dixson (at trial), Chattanooga,
Tennessee, for the appellant, Jeremy Reynolds.
Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Neil Pinkston, District Attorney General; Lance W. Pope, Executive
Assistant District Attorney General; and Kevin T. Brown, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case arises from the May 5, 2013 shooting death of twenty-year-old Wendell
Washington. The Hamilton County Grand Jury charged the Defendant with one count of
first degree premeditated murder and one count of unlawful possession of a firearm by a
convicted felon.1
1. Motion in Limine. Prior to trial, the Defendant filed a motion in limine to
exclude evidence of the Defendant’s gang affiliation or gang activity, arguing that the
evidence served no purpose other than to inflame the jury. On the same day, the State
filed a notice of intent to introduce evidence of the Defendant’s gang membership and
requesting a hearing pursuant to Tennessee Rule of Evidence 404(b). The State argued
that the information would be introduced for the purposes of establishing the Defendant’s
identity and completing the story. The State noted that the Defendant’s membership in
the Gangster Disciples was the only link between him, Deaunte Duncan, and Gerald
Jackson.
At a pretrial hearing, the prosecutor summarized the evidence he sought to
introduce as follows:
We’re seeking to introduce evidence at trial through Officer Curtis
Penney from the Chattanooga Police Department . . . that this defendant . . .
is a member of the Gangster Disciples street gang. I am not seeking to
introduce proof of a feud in the city between the Gangster Disciples and
any other group[,] . . . of the way someone is promoted within the ranks of
the Gangster Disciples gang[, or] proof of other violent acts of the
[D]efendant or any other member of the Gangster Disciples gang.
I am seeking solely to introduce the [D]efendant’s affiliation with
the Gangster Disciples, and this is the reason[:] The primary argument in
this case will be identity of the person or persons [who] killed [the victim]
on the evening of May the 5th of 2013.
....
. . . [V]ery close in time to [the] homicide, [the Defendant] is dropped off at
Erlanger [Hospital], and it’s on video. He’s dropped off by two other
1
The firearm charge was bifurcated for trial and dismissed by the State after the jury returned a guilty
verdict on the murder charge.
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individuals. They show up in a light-colored SUV, carry [the Defendant]
into the emergency room, literally drop him off on a gurney and leave.
One of those people is [Mr.] Duncan, his co-defendant that’s
separately indicted for this homicide[.]
The third person that drops off [the Defendant] at the hospital is
unidentified.
....
The State seeks to introduce evidence pursuant to [Rule] 404(b) that
[the Defendant] is a Gangster Disciple; pursuant to [Rules] 401 and 403,
that [Mr.] Duncan . . . is also a Gangster Disciple.
....
The additional piece of evidence that I want to introduce under 401
and 403 is that . . . Gerald Jackson is a member of the Gangster Disciple[s]
gang, and the reason this is relevant [is that] . . . [the victim] on his front
porch [was] killed with two different firearms. One is a .38-caliber
revolver and one is a .45-caliber semi automatic.
....
[In] July of 2013, Gerald Jackson, a fellow Gangster Disciple, is
stopped in connection with another robbery. When he’s stopped, in the
vehicle . . . is a .45-caliber semi automatic weapon.
The State noted that testing by the Tennessee Bureau of Investigation (TBI) conclusively
identified the .45-caliber pistol as the same one that fired bullets collected at the victim’s
house. The State argued that without common gang membership between the Defendant,
Mr. Jackson, and Mr. Duncan, the jury would have “no contextual backdrop for these
parties’ affiliation or how they know each other, if they know each other, or if they’re
connected in any way.”
Upon questioning by the trial court, defense counsel noted that Mr. Jackson was
incarcerated at the time of the victim’s death and could not have committed the crime.
Defense counsel noted a recently publicized “crackdown” on gang activity and stated that
in his experience, “any time . . . the jury hears ‘gang,’ it goes very badly after that, they
figure the person is a member of a gang, even through the . . . Court of [Criminal]
Appeals did recently come out and say . . . being a member of a gang is not a crime.”
-3-
Counsel argued that the evidence was not relevant and that nothing indicated the
homicide was a “gang crime.”
The trial court found, “[W]hat [the prosecutor] is talking about is certainly
relevant, the fact that these people have voluntarily . . . chosen to affiliate themselves and
identify themselves with a gang[.] . . . That gang status may be relevant to something.
[The State] say it’s relevant to establishing somebody’s identity.” The trial court also
agreed that evidence of gang membership “[could] be very prejudicial” and asked to hear
the proposed evidence.
Chattanooga Police Department (CPD) Investigator Curtis Penney testified that
between 2010 and 2015, he worked with the “special investigations division,” which
“was the gang unit for the city at that time.” Investigator Penney’s work made him most
familiar with the Gangster Disciples and the “Rolling 60 Crips” in East Chattanooga. At
the time of the hearing, Investigator Penney worked in the CPD criminal intelligence
unit. As part of his job, Investigator Penney collected “gang validation forms,” which
was a standardized form from the National Gang Information Center. Investigator
Penney explained that each individual was assigned a certain number of points on the
form based upon a variety of factors; a “validated” gang member had ten or more points.
Moreover, admitting to gang membership was not sufficient to garner ten points.
Individuals with less than ten points were considered affiliates of a gang.
On May 10, 2013, the Defendant was validated as a gang member of the Gangster
Disciples with fourteen points; his gang nickname was “Sleepy” or “Sleepy G.” The
Defendant’s gang validation form reflected that he received eight points for “gang tattoos
or brands” and three points for “use or possession of symbols, logos, colors, et cetera,”
which “could vary from anything from a bandana to throwing up gang signs.” The
Defendant received one additional point for known contact with confirmed gang
members and two points “for participating in a photo with confirmed gang members.”
Investigator Penney stated that his information about the Defendant was compiled from
informant interviews, “things that we’ve recovered from search warrants, documentation,
[and] books that explain certain aspects of the gang.”
Investigator Penney acknowledged that the Defendant’s Tennessee Department of
Correction (TDOC) record noted his status as an “enforcer with the Black Gangster
Disciples.” Investigator Penney stated that more recent documentation listed the
Defendant as an “associate regent,” meaning that the Defendant was “fairly high up” in
the organization. Investigator Penney identified a photograph in which the Defendant
wore a belt containing a gang symbol and appeared with Gangster Disciples members,
some of whom were also highly ranked. The other people included Mr. Duncan, as well
as Christian Woods. Investigator Penney noted that in 2005, the Defendant and Mr.
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Woods were both suspects in a robbery-homicide. As a result of the 2005 incident, the
Defendant served time in prison for faciliation of second degree murder.
On cross-examination, Investigator Penney acknowledged that he did not compose
the Defendant’s gang validation form. He agreed that the Defendant had not admitted to
being a Gangster Disciple. Investigator Penney disagreed that it was easy to be validated
as a gang member simply by “hanging around” other gang members, stating that many
people had gang tattoos or other indicia of gang affiliation but that it was “sometimes
extremely difficult to get someone to ten points.” Investigator Penney denied that once a
person had been validated as a gang member, “you’re pretty much on there forever.” He
stated that if no new indicia of gang activity appeared for five years, the person would be
removed from the list of validated gang members.
Investigator Penney testified that although some people in gangs were involved in
a “criminal enterprise,” not all gang members committed crimes. He described distinct
branches of the Gangster Disciples, and stated that some Gangster Disciples members in
the “7-20 movement” lived by tenants of “community betterment, to help the black
community on political standing, et cetera.” Investigator Penney stated that although
conflict could occur between Gangster Disciples members, common gang membership
meant that the members “[ran] together.” He had never seen documented instances of
members of the same gang trying to kill one another.
Investigator Penney testified that he had previously taken around twelve days of
continuing education and training courses on basic investigation, organized crime, and
advanced gang investigations. He also had five years’ experience with “hands-on dealing
with gangs on a daily basis.” Investigator Penney acknowledged that “just being seen
with somebody, like, on Facebook or anything else like that” would be sufficient to
classify a person as a gang associate; however, “before [his department would] even
attempt to do a form, . . . [they would] want more than that”; for example, he would
research whether the person and the gang member had been stopped by police or
committed a crime together.
Investigator Penney testified that in one of the photographs in which the
Defendant appeared with other people, his assessment of which aspects of the photograph
were gang symbols was based upon the “totality of all the circumstances.” For example,
the Defendant wore a belt buckle in the shape of the Star of David, which Investigator
Penney identified as a gang symbol based upon the context of the photograph.
Relative to the determination that the Defendant was a gang member, defense
counsel argued that if the trial court was “going by” the police’s classification of the
Defendant as a gang member, “there[ was] nothing more to argue.” Counsel stated that
the next issue to consider was whether to “bring in the acts of others.” Counsel noted that
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Mr. Duncan was alleged to be “an unindicted co-conspirator” and that the State
“shouldn’t be able to convict [the Defendant] based upon the acts of others unless they
can show he controlled that[.]”
The trial court found that Investigator Penney was an unspecified expert,
presumably on gang information in Chattanooga, and that the CPD’s documentation
established that the Defendant was “publicizing the fact that he [was] a member of the
Gangster Disciples by that photograph . . . dated February 15, 2013.” The court noted
that the photograph, which was posted to Facebook in a profile entitled, “All eyes on
Sleepy,” focused on a “huge tattoo of the letters ‘G’ and ‘D’” and included a five-point
star.2 The court further noted the group photograph in which the Defendant wore a “five-
star” belt buckle.
The trial court further found that the Defendant was photographed with three other
people who “affiliated themselves” with the Gangster Disciples and who were making
gang hand signs. The court found that it was “influenced” by the fact that the Defendant
and “his co-defendant” were “associates in crime” and that Mr. Duncan dropped the
Defendant off at the hospital. The court found that Mr. Woods was involved in a prior
violent act with the Defendant. Relative to a November 27, 2012 photograph of the same
group of people, the court found that the Defendant’s gang-related tattoo was visible on
his right elbow and that other people in the photograph were making gang hand signs.
The court also noted the TDOC’s identification of the Defendant as a Gangster Disciples
member.
The trial court found relative to the CPD’s identification of the Defendant as a
Gangster Disciples member that although there had not been a “self-admission” of gang
membership, the Defendant’s “publicizing” his clothing and tattoos was “intended to be
self-admission and identification.” The court noted that it would have assigned the
Defendant additional points on the gang validation form based upon this constructive
“self-admission.” The court found that the State had established by clear and convincing
evidence that the Defendant was a member of the Gangster Disciples at the time of the
victim’s murder.
Investigator Penney was recalled as a witness and identified gang validation forms
for Mr. Duncan and Mr. Jackson. Investigator Penney noted that Mr. Duncan, whose
gang nicknames were “Z-ro or Coke,” had fifteen points as of April 13, 2013, and had
admitted to Gangster Disciples membership. Investigator Penney identified photographs
in which Mr. Duncan appeared to be making gang hand signs with Mr. Woods, the
Defendant, and two other known Gangster Disciples.
2
The court mistakenly referred to a five-point star in its findings; Investigator Penney’s testimony
reflected that a six-point star was a common Gangster Disciples symbol.
-6-
Investigator Penney testified that Mr. Jackson’s gang nicknames were “Jack Boy,”
referring to a person who commits robberies, and “G-Man.” He identified two copies of
Mr. Jackson’s gang validation form dated June 19, 2013, and June 26, 2013, respectively.
Investigator Penney noted that the TDOC had also validated Mr. Jackson as a Gangster
Disciples member. TDOC’s gang assessment form was dated February 1, 2013, and
CPD’s gang validation form was updated upon TDOC’s notifying CPD that Mr. Jackson
had been released from prison. Investigator Penney noted that generally, an inmate “may
have already been out of custody for . . . a couple months before” appearing on TDOC’s
list of released gang members. The June 19, 2013 gang validation form reflected that Mr.
Jackson had twenty-seven points and that he had been a passenger in a vehicle driven by
another validated Gangster Disciples member. The June 26, 2013 form reflected that Mr.
Jackson had eighteen points and had admitted to membership in the Gangster Disciples.
Defense counsel argued that Mr. Jackson was not photographed with the
Defendant and that other than their common gang membership, Mr. Jackson was “not
relevant to” the Defendant. The trial court found that Mr. Duncan made gang signs in
three exhibited photographs and that Mr. Duncan admitted to the police that he was a
gang member. The court also found that Mr. Duncan was “established to be a Gangster
Disciple” about one month before the victim’s murder.
The trial court found relative to Mr. Jackson that he admitted to gang involvement,
had gang-related tattoos, and was identified as a gang member by the TDOC as of
February 1, 2013. The court found that “all three individuals at issue were Gangster
Disciples at the time of the crime[.]”
Relative to the probative value of the evidence, the State argued that the
Defendant’s rank in the gang and the relationship between the victim and “these men”
were not relevant. The prosecutor noted, “I’m only trying to associate these three men
together as having knowledge of one another, and therefore, making it more likely that
these men are associated with one another, and therefore, Mr. Jackson can end up with
the firearm used in this crime because he gets it from one of his associates . . . [who were]
seen moments after the homicide together[.]” The State averred that it was not seeking to
establish that the victim’s murder was a “gang-related crime.” Defense counsel
responded, “[i]n which case, why . . . bring up gangs in the first place? It’s not relevant
except . . . to sit there and say to the jury, ‘Oh, it’s a gang[.]’”
The trial court noted that if the Defendant, Mr. Duncan, and Mr. Jackson were
members of a fraternity, a church, or a sports team, the information would be admissible
to prove a common association. Defense counsel responded that a “taint” existed on
gang membership and noted this court’s decision concluding that the gang enhancement
statute was unconstitutional. The court responded,
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Yeah, but let me say this, [counsel]. They choose that. They flaunt
that. They’re on Facebook saying, “[L]ook at my tattoo,” basically. I
mean, they’re not verbalizing that.
....
But they’re saying, “Look at my tattoo, look at this sign, look at how
I’m dressed, look at my piece of clothing here.” They’re publicizing their
status.
And so what you’re saying is, “But, gosh, Judge, that’s prejudicial.”
Maybe it is. I mean, I’m sure it is or the State wouldn’t be trying to get it
into evidence against them, and I know I’ve got to weigh that against
probative value.
The probative value, though, here, that [the prosecutor] says that
he’s trying to establish is not that they’re mean, bad people because they’re
in a gang, but that they’re in a gang and, therefore, they have a connection
to each other . . . and that’s it. That’s the connection.
The trial court found that “it’s very relevant. It’s very relevant because that gang
connection connects them to each other.” Defense counsel argued that the Gangster
Disciples was “a nationwide organization” and that Mr. Jackson and the Defendant did
not necessarily know one another simply by being members of the same gang. Counsel
stated that “that’s not what should be deciding this case” and that “the evidence,” not
gang affiliation, should establish whether the Defendant murdered the victim. Counsel
argued that there was “no way to connect the pistol” Mr. Jackson possessed to the
Defendant. Counsel acknowledged that the photograph of Mr. Duncan and the Defendant
established that they knew each other, as did the hospital surveillance recording.
Upon questioning by the trial court regarding the relevance of Mr. Jackson’s gang
status, the State first addressed the topic of Mr. Duncan’s gang membership and argued,
“Establishing that Mr. Duncan and [the Defendant] are in the same gang show[ed] that
they have a connection other than just at the hospital that particular night after the
shooting.” The State further argued that Mr. Duncan and the Defendant were “in the
same gang as the man who [was] in possession of the weapon used to kill [the victim.]
That ma[de] it more likely that one of his fellow gang members [gave] him the gun used
to kill the victim in this case. It establishe[d] a connection between the man at the scene
and the man [who] ha[d] the gun.” The State noted that counsel’s argument regarding the
gang being a nationwide organization did not “lessen the relevance of the evidence or
change the prejudicial effect. It’s the same evidence. It’s a good cross examination point
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or closing point.” The State further noted that Investigator Penney would concede that
some Gangster Disciples did not commit crimes.
When asked by the trial court to clarify its argument, the State articulated that
identity was “the key issue” in the victim’s murder, that the evidence of the Defendant’s
gang membership would be introduced to prove identity and complete the story, and that
the evidence was “highly probative” such that the prejudicial effect did not outweigh it,
given “the key issue in the case of identity.” The State noted that the Defendant’s
Gangster Disciples membership was “particularly relevant” due to the involvement of
Mr. Duncan at the hospital and Mr. Jackson’s possessing the murder weapons months
later.
Defense counsel responded that the State “want[ed] to go ahead and state that [the
Defendant] or [Mr. Duncan] passed the gun over to Mr. Jackson, so that right there, that’s
prejudicial[.]” Counsel argued that the connection to Mr. Jackson relied upon prejudicial
“speculation” and “making assumptions” that “they’re all criminals, they all pass guns
back and forth.” The State responded that the evidence was relevant because common
gang membership made it “more likely that [Mr. Jackson’s] associates committed the
crime so that he could receive the gun through the gang.” The State commented,
“There’s not any speculation about that. He does get the gun, they are all fellow gang
members, and the jury can take that evidence for whatever it’s worth, but it’s definitely
relevant.” Counsel responded that there was publicity about “crimes that are specifically
allocated to gangs” and that the jury would assume the Defendant was guilty if it were
informed about the Defendant’s gang membership. Counsel analogized to a previous
prohibition against referencing a defendant’s mafia association. Counsel argued that
instead of having to prove how Mr. Jackson obtained the gun, the State was presenting
evidence that “[w]ell, they’re gang members, the gang gave it to him.”
The trial court determined that a material issue existed other than propensity,
reasoning as follows:
[The non-propensity issue] is whether or not the [D]efendant can be
identified as the person who shot the [victim] or was present at the scene
and was at least criminally responsible for the homicide of the victim . . .
and also completion of the story, because there is this incident where the
actual murder weapon, according to the TBI, was recovered from an
individual who is not the [D]efendant at a later time, . . . and so those are
the two non-propensity material issues, and so the [c]ourt finds that
certainly identity and completion of the story are relevant.
The trial court then weighed the probative value and the danger of unfair
prejudice:
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Certainly, the probative value there would be that this association
between people would explain to the jury and help the jury to understand
why a third person would be in possession of a murder weapon when that
person was not the one who went to the hospital like [the Defendant] did
with the bullet in him, and would assist the jury to consider the whole story
where the jury might otherwise be confused about why a third person, who
was in the prison at the time . . . might be in possession of the weapon, that
being that [the Defendant] and Mr. Duncan and Mr. Jackson, the person in
possession of the murder weapon in July of 2013, which is just within two
months, that they’re all members of the Gangster Disciples, which is a
connection. It is an affiliation. They’re not Masons, they’re not Kappa
Sigs, they’re not in the boys choir and they’re not on the football team
together, but they are Gangster Disciples. That’s the reason why the
defense believes that it would be so prejudicial for the jury to hear that.
Now, these people believe that it’s important — [the Defendant] has
illustrated, Mr. Duncan has illustrated that it’s important for other people
who are significant to him and who are viewing him to know that he is a
Gangster Disciple. That’s evident from what the [c]ourt has seen in these
photographs. But now that we’re at trial, he doesn’t want the jury to know
he’s a Gangster Disciple because of the violence reduction initiative and
because the community assumes that people in gangs are shooting each
other. You know, the evidence I’ve seen is that they are shooting each
other. I really don’t think I have to determine those things to decide this
case.
But again, that does influence me from the standpoint of the
probative value that this status as a gang member has. It is probative . . . .
[T]his is more than wearing red. I mean, this is hand signs, this is
prominent tattoos, this is association with each other in photographs. This
is, this is meant to make a statement, all of these things that they do that
I’ve seen.
That’s why I find that there’s clear and convincing evidence. So that
has probative value when it comes to identity and completion of the story.
Otherwise, there’s a big — at the end of the story, the jury may be in a
position to kind of say, “That doesn’t really make sense, what’s this
Jackson guy doing with the gun? He was in prison but yet he’s got the
gun.” It completes the story. It explains the story.
Now, it is subject to cross-examination and impeachment when the
defense stands up and says . . . [t]he State has no pictures of [the
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Defendant] with Mr. Jackson. They can’t establish that [the Defendant]
even knew Mr. Jackson. But the State can say, “But there is a connection
and the connection is that they are members of the Gangster Disciples and
that that gives them an affiliation and an association, and therefore, it’s
probative.”
What’s the danger of the unfair prejudice? The danger of the unfair
prejudice is that lay people in particular have a propensity . . . to assume
that people who are in gangs are dangerous and they do violent things.
Actually, they do. We’re all kidding ourselves if we say that they don’t.
So people in gangs do and the public knows that. That doesn’t mean,
though, that [the Defendant] did, and I think that’s why . . . there is a
limiting instruction that instructs the jury that they can’t consider it for any
other purpose against the defendant other than the stated purpose of identity
and completion of the story.
So even if a juror thinks that gang members do bad things, they are
specifically instructed by the [c]ourt that they aren’t to consider those
things against [the Defendant] without any proof of those things, that this
proof is not being offered for that purpose, and the law assumes that the
jury follows the instructions of the [c]ourt.
So it is prejudicial that [the Defendant] is a member of a gang
because of what jurors assume about gangs, but when the jury is properly
instructed, it should not be unfairly prejudicial, and that prejudice would
not be outweighed by the probative value here, which has to do with
identity via the affiliation that this person, [the Defendant], has with Mr.
Duncan and with Mr. Jackson as a result of their status in the Gangster
Disciples. So I will allow the evidence to come in with regard to [the
Defendant’s] being a Gangster Disciple.
The trial court also determined that the Gangster Disciples membership status of
Mr. Duncan and Mr. Jackson was relevant to completing the story and probative of the
reason Mr. Jackson had the murder weapon; the court further determined that the
evidence was not unfairly prejudicial:
All right. And I find that for the same reason, that the completion of
this whole story and the affiliation and identity and the issue with identity
sets [the Defendant] — I think part of his defense appears to me to be “I
wasn’t there.” The [c]ourt’s heavily influenced by the fact that he was
somewhere in close proximity at the time that . . . the victim was shot and
killed, and that [the Defendant] suffered a gunshot wound. So I find that
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the fact that Mr. Duncan, who dropped [the Defendant] off at the hospital,
is – the fact that he is a gang member and a Gangster Disciple, not just a
gang member but a member of the same gang as [the Defendant], and I say
that with regard to Mr. Jackson, too, not just a gang member but the same
gang as [the Defendant]. I find, too, that that is probative and that that
probative value is not substantially outweighed by any danger of unfair
prejudice.
The trial court found that three photographs the State intended to enter as exhibits
at trial were relevant and that the probative value substantially outweighed the danger of
unfair prejudice. The photographs depicted the Defendant’s tattoo of a six-point star and
the initials “G.D.” and two instances when the Defendant and Mr. Duncan appeared in a
group in which gang hand signs were being made. The court commented,
They’re in a gang, that’s their status, gangs do bad things, but they’re not
ashamed of it in the photographs. I don’t know why all of a sudden they
want to duck from it when they’re in court, so – I do know, but I’m just not
sure that’s just, really, particularly with a limiting instruction, so – I will
say this, I’ll caution the defense that the door could be opened for
additional photographs if the State asks for it, depending on the vigor of the
cross.
2. Trial. Before the beginning of trial, defense counsel made an oral motion to
reconsider regarding the evidence of the Defendant’s gang membership. Counsel noted
for the trial court:
In the news there ha[s] been a lot about gang violence. The police
have basically . . . increased up security because of gang problems. I was
listening to talk radio. Basically the talk, that “they’re all animals, they
need to be put down,” and I just worry about the chilling effect that [the
word] “gangs” could have . . . . [T]his really isn’t a gang case. I know that
they wish to go ahead and complete the story . . . but I worry that instead of
focusing on the facts of the case, they’re going to be focusing on gangs[.]
Counsel stated that the morning newspaper had featured a story about gangs and
that counsel feared that the Defendant would be unfairly prejudiced such that “gangs
com[ing] into it will overshadow what evidence we bring forward . . . to where even, they
may not listen – I mean, hopefully they’ll listen to the [c]ourt’s admonitions[.]” Counsel
requested a “special” jury instruction that the Defendant was not “on trial for” being in a
gang. Counsel further requested that the court prohibit references to the Defendant’s rank
in the gang.
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The State responded that it would redact the Defendant’s rank listed on the gang
validation form as well as a reference to the Defendant’s previous incarceration. The
State further requested that the trial court give a limiting instruction during evidence and
jury instructions regarding the purposes for which it could consider Rule 404(b)
evidence.
The trial court denied the Defendant’s motion to reconsider, finding that publicity
on the local violence reduction initiative had been discussed at the pretrial hearing and
that the court’s reasoning and basis for its decision had not changed.
After the State and the Defendant both discussed gang membership in opening
arguments, the trial court issued a limiting instruction that the jury was to consider the
Defendant’s gang membership only “for the limited purpose of determining whether it
provides the complete story of the crime” and “determining whether it provides the
[D]efendant’s identity[.]”
Kirsten Harley Stokes, the victim’s girlfriend of three years, and Diana
Washington, the victim’s mother, both lived with the victim and testified regarding their
observations on May 5, 2013. Ms. Washington had arrived home from work around 6:30
p.m. and was asleep when Ms. Stokes returned home from work at 10:30 p.m. Ms.
Stokes stated that the victim worked as a roofer and also sold marijuana and “pills,”
although she noted that he did not conduct drug transactions from his house and did not
bring non-family members to the house. She agreed that the victim had recently acquired
“nice things” and a newer car after saving up for them. Ms. Stokes also stated that the
victim had purchased four or five guns after having been robbed of a sum of money at the
house months prior to his death. Ms. Washington was unaware of the victim’s selling
drugs or owning guns.
Ms. Stokes testified that ten or fifteen minutes after she returned home and
showered, she heard the victim pull up in his car and park across the street, which was
not unusual. Ms. Stokes went to the front door and saw the victim’s face through a glass
pane at the top of the door. She looked down briefly and did not see the victim when she
looked up. Ms. Stokes heard an unfamiliar voice and attempted to open the door, but it
“kind of got pulled shut.” She stated that she heard the victim “holler[]” but did not
understand what he was saying. Ms. Stokes woke Ms. Washington and told her
“something was going on”; the two women went to the front door. Ms. Washington
averred that the shooting started before Ms. Stokes woke her, but Ms. Stokes said that it
began after she and Ms. Washington reached the front door. Both women heard multiple
gunshots; Ms. Stokes attempted to go outside, but Ms. Washington prevented her from
doing so.
-13-
Some moments after the shooting stopped, the women went onto the front porch
and saw the victim, who had been shot in the chest, lying down. Neither woman saw any
people or cars leaving the scene. A neighbor ran to the porch and began performing
CPR; Ms. Stokes went inside, retrieved a pillow for the victim and her cell phone, called
9-1-1, and assisted with the CPR. The victim moved his head back and forth, tried to
breathe, and had his eyes open, although he was unable to speak. Ms. Stokes and Ms.
Washington took a gun, money, and pills from the victim,3 and Ms. Stokes hid them
under a mattress inside the house. Ms. Stokes recognized the gun, a black pistol, as one
of the victim’s guns. Ms. Washington, who was distraught and in shock, called her
daughter and then 9-1-1 just before the paramedics arrived.
A recording of Ms. Stokes’s 9-1-1 call was played for the jury. In the recording, a
woman was heard crying in the background as Ms. Stokes, who was also audibly upset,
asked the operator to send an ambulance. Ms. Stokes told the operator that the victim had
been shot multiple times in the chest and that the victim was breathing but unconscious.
Ms. Stokes addressed the victim and asked him to wake up.
A recording of Ms. Washington’s 9-1-1 call was played for the jury. In the
recording, Ms. Washington told the operator that her son had been shot. Ms.
Washington, who was difficult to understand, exclaimed loudly and cried. She stated that
her neighbor was performing CPR on the victim. Ms. Washington stated that her
neighbor had seen a “white truck or something” but that Ms. Washington did not know
where the shooter was located.
Brandon Collier testified that on May 5, 2013, he lived on a street in the same
vicinity as the victim’s house. Mr. Collier let the family dog outside between 9:30 and
11:00 p.m. and heard five or six gunshots nearby “in rapid succession.” Mr. Collier had
previously served in the United States Marines and was familiar with the sound of
gunfire; he characterized the sound as “small arms fire.” Mr. Collier woke his wife, told
her what he heard, and stood near a side window “waiting on anything to happen.” Mr.
Collier noted that “up to” five minutes later, he saw a “white Mitsubishi SUV fly through
the stop sign” at an intersection visible from the window. Mr. Collier stated that the
driver “seemed to be going a little faster than even the people that drove fastest through
there” and described the driving as “[e]rratic[.]” Mr. Collier called the non-emergency
police number the following day to report what he had seen.
On cross-examination, Mr. Collier testified that no trees or shrubs obstructed his
view of the stop sign, that the intersection was illuminated by a street light, and that he
was wearing his prescription eyeglasses at the time. Mr. Collier saw the “triple triangle
symbol” identifying a Mitsubishi brand car; he noted that he thought it was a Mitsubishi
3
There was conflicting testimony regarding which woman picked up the respective items.
-14-
Endeavor because he had recognized that model of SUV “all over the road” since that
night. Mr. Collier denied that the SUV had a bicycle rack “or anything like that” on the
back, and he did not recall whether the SUV had a roof rack. He stated that the SUV
turned left onto Fairfax Road. The SUV was either “white or light silver. It was a very
light color.” He affirmed that he did not see the person or people inside the SUV. When
shown a map of the area and the location of the victim’s house, Mr. Collier agreed that
the house appeared to be “fairly close” to his house, but he did not know how far away it
was.
On redirect examination, Mr. Collier was shown a surveillance recording from
Erlanger Hospital’s emergency room entry, which showed a vehicle driving in at about
11:03 p.m. Mr. Collier identified the vehicle in the recording as the same make and
model as the SUV he had seen. When asked whether it was the same color, Mr. Collier
stated, “Close, I suppose. Like I said, it was definitely a lighter color vehicle.”
On recross-examination, Mr. Collier acknowledged that he was shown the
emergency room recording previously and that he was told the SUV had dropped off the
Defendant. Mr. Collier said that he was not familiar with the rear window shape of
Mitsubishi vehicles, only that the Mitsubishi Endeavor had “exaggerated fenders.” He
acknowledged that he only saw the SUV for a “couple of seconds” and that he did not
own a Mitsubishi Endeavor.
Three additional 9-1-1 call recordings were played for the jury. In the first
recording, which was time-stamped 10:57 p.m., a woman reported a “drive-by” shooting
at a house near hers on an adjacent street; she heard about eight shots, but did not observe
the shooting. In the second recording, which was also time-stamped 10:57 p.m., a man
named Marvin Thompson reported a shooting and a “person down.” He noted that the
shooting occurred at a house “above” his and that a man was lying on the front porch.
Mr. Thompson stated that he heard shots and saw a white SUV driving away, although he
did not know any other details about the SUV. In the third recording, which was time-
stamped 11:03 p.m., a woman reported a drive-by shooting and asked whether an
ambulance was en route.
CPD officers responded to the crime scene and photographed and collected
physical evidence. CPD Crime Scene Investigator Jerry McElroy collected .45-caliber
shell casings, .45-caliber bullets, a PMC-40 Smith & Wesson shell casing, unfired PMC-
40 bullets, and blood swabs from the porch; additional firearms, including a loaded Glock
23 .40-caliber pistol, a blood swab from that pistol, $590 cash, pills, and a bag of mixed
ammunition from the victim’s bedroom; and a blood swab, clothing items, two pistols, a
spent shell casing, and an unfired PMC-40 bullet from the living room. A sedan parked
in the house’s carport had bullet holes in the passenger-side and driver-side rear fenders,
but a bullet was not recovered at that location. Baggies of marijuana, scales, pills, and a
-15-
receipt for 9mm and .40-caliber ammunition were found in the victim’s car. No blood
was present on the grass or sidewalk, but it was noted that the ground was wet and muddy
due to recent rain. Investigator McElroy noted that if a person wore layers during a
shooting, it was common not to encounter blood at the scene.
Investigator McElroy testified that one box of PMC .45-caliber ammunition was
found in the victim’s house, although no .45-caliber firearm was located there. The box
was missing twelve or thirteen bullets. Some of the ammunition in the mixed bag did not
correspond to any of the firearms found at the victim’s house. Investigator McElroy
agreed at least some of the five spent shell casings on the porch were “.45 Blazer autos”
and that some of the casings were “R&P” brand. Investigator McElroy did not collect
any fingerprints at the scene.
Officers later obtained an unfired .45-caliber bullet that was packaged in a plastic
jar and placed on a table next to the Defendant’s hospital bed; the jar was sitting beside a
bag, which contained the Defendant’s clothing and other belongings.4 The Defendant
was the only person being treated in the hospital room. The hospital also provided the
victim’s personal effects, which included an unpackaged, unfired bullet that was found in
his clothing. Officers were provided one bullet recovered from the victim’s body at
autopsy and one bullet removed from the Defendant in surgery.
CPD Sergeant Heather Williams took gunshot residue samples from the victim’s
hands. Because the Defendant was in surgery by the time Sergeant Williams arrived, she
was unable to perform a gunshot residue test on him.
An Erlanger Hospital surveillance recording from the night of the vicitm’s murder
was played for the jury, and CPD Sergeant Daniel Francis, who collected the recording,
stated that the footage showed three angles of the emergency room. The recordings
depicted the emergency room lobby facing the front windows and entryway, a second
angle of the lobby facing the check-in window, and a third angle showing the check-in
office facing the lobby. In two of the recordings, a light-colored SUV of indeterminate
color was visible driving past the windows. After parking near the door, two African-
American men carried a third man toward the check-in office. Nurses rolled a gurney out
to the lobby, and the two men deposited the third man onto it before walking out of the
lobby. A nurse ran to the door as the SUV drove away. No brand markings were visible
on the SUV.
4
The hospital staff member who removed the unfired bullet from the Defendant’s person was unable to
be located; this gap in the chain of custody was the subject of some argument at trial. Ultimately, the trial
court allowed testimony regarding the location of the bullet upon officers’ arrival but did not permit the
officer to state that the bullet came from the Defendant.
-16-
Sergeant Francis identified a stock photograph of a Mitsubishi Endeavor and
described the triangular “diamond” Mitsubishi emblem. Defense counsel showed
Sergeant Francis several stock photographs of white SUVs of various makes and models;
all had similar characteristics in build to the Mitsubishi Endeavor. He maintained,
however, that by examining the body characteristics of the SUV in the hospital
surveillance recording, he believed the SUV was a Mitsubishi. He acknowledged that he
was not “a hundred percent” certain.
Sergeant Francis testified that he did not send the victim’s GSR test to the TBI for
testing because TBI policy was not to perform testing on victim GSR swabs. He noted
that it was clear from the crime scene and Ms. Washington’s admitting to moving the
victim’s gun that the victim “was associated with a firearm.”
Sergeant Francis testified that one of the routes from the victim’s house to
Erlanger Hospital involved driving up Fairfax Road, which was consistent with Mr.
Collier’s observations. Traffic cameras from the other primary route did not show a
white SUV’s traveling through the area in the relevant timeframe. Sergeant Francis
drove from the victim’s house to Erlanger Hospital at the same time of night as the
shooting and using the Fairfax Road route; while obeying all traffic laws, it took him ten
minutes, thirty-seven seconds to arrive at the hospital.
Sergeant Francis testified that no eyewitnesses placed the Defendant at the
victim’s house on the night of his murder. Further, no physical evidence at the crime
scene was identified as belonging to the Defendant, and the Defendant was not carrying a
gun at the hospital. Sergeant Francis did not know whether the Defendant fired a gun
that night. Sergeant Francis agreed that the Defendant was shot with a .40-caliber bullet
and that the victim had a .40-caliber gun.
Sergeant Francis visited the Defendant in the hospital, and the Defendant declined
to waive his right to an attorney; as a result, the interview did not proceed. Sergeant
Francis stated that using Ms. Stokes’s 9-1-1 call as an estimate for the time of the
shooting, the SUV carrying the Defendant arrived at the hospital about seven minutes,
forty-nine seconds later. He noted that Ms. Stokes’s 9-1-1 call was made some
indeterminate number of minutes after the SUV left and that she did not see a car.
Sergeant Francis acknowledged that the road would have been wet from the rain and that
he did not know with certainty which route the Defendant took to the hospital. He further
acknowledged that the route the Defendant was alleged to have taken would have passed
a police station.
TBI Agent Derek Proctor, an expert in forensic science, testified that he performed
DNA testing on the swabs collected at the crime scene and compared the samples to
buccal swabs from the Defendant and the victim. The blood swabs all matched the
-17-
victim’s DNA and did not match the Defendant’s DNA. A swab taken from blood on the
victim’s gun matched the victim’s DNA. Although an additional, distinct allele was
present, Agent Proctor was unable to test it due to the limited amount of material
available.
Agent Proctor also tested two hats and a pair of sunglasses from the victim’s
house. All three items contained female DNA, and the hats contained some male DNA;
the male DNA profile was limited such that “interpretation of the minor contributor [was]
deemed to be inconclusive.” He did not DNA test the unfired bullet from the victim’s
living room because the smooth surface of a bullet was unlikely to contain DNA.
CPD Detective Michael Early testified that on July 29, 2013, he investigated a
robbery in which .45-caliber shell casings were recovered. On August 6, 2013, Detective
Early conducted a traffic stop in connection with a second robbery in which a jewelry
store was “shot up.” One of the passengers was Gerald Jackson, and a .45-caliber pistol
was found in the car; the pistol was sent to the TBI for ballistics testing.5
TBI Special Agent Teri Arney, an expert in firearms examination, testified that she
compared the shell casings and bullets recovered in the Defendant’s case with both .40-
caliber pistols found in the victim’s house. The test-fired Glock 23 .40-caliber rounds
matched class and individual characteristics of two PMC Smith & Wesson .40-caliber
shell casings from the crime scene. She noted that three unfired PMC Smith & Wesson
.40-caliber jacketed hollow point rounds were also included in the evidence delivered to
her. The Glock’s magazine contained eight unfired PMC Smith & Wesson .40-caliber
jacketed hollow point rounds; the gun would have held fourteen bullets at maximum.
Special Agent Arney testified that the bullet recovered from the Defendant’s body
was .40-caliber. When asked how the bullet compared with the other bullets fired from
the victim’s Glock pistol, Special Agent Arney stated,
Glock has what we call polygonal rifling, and basically this is a process
where the interior of the barrel is hammer-forged into the shape of a
polygon . . . . [T]he bullets are typically very very smooth and they have
very few individual characteristics for comparison. So as is typical with
most Glock bullets, the best that I can say is, it’s a .40-caliber bullet, it has
polygonal rifling characteristics, and it is the same any other Glock that has
polygonal rifling.
5
An evidence collection form reflected that the car that was stopped was owned by Mr. Jackson, and the
gun’s owner was listed as “Jeremy Clark.”
-18-
Special Agent Arney further stated that although she could determine the bullet was
“most likely” fired by a Glock firearm, she could not “link” the bullet to a specific Glock.
Special Agent Arney testified that the .45-caliber shell casings recovered at the
crime scene all had “the same mechanical fingerprint, the individual characteristics from
the same firearm” and that the class characteristics were consistent with having been fired
by a Hi-Point brand firearm. She further determined that the .45-caliber bullets from the
victim’s porch and his clothing at the hospital were fired by the same Hi-Point brand
firearm. A second .45-caliber bullet from the victim’s porch had the same class
characteristics as the other bullets, but it was so damaged that Special Agent Arney could
not make a conclusive identification.
Special Agent Arney testified that at a later date, she examined the .45-caliber Hi-
Point pistol recovered during Mr. Jackson’s arrest. After test-firing the gun, Special
Agent Arney determined that all five cartridge casings and the two bullets collected at the
victim’s house were conclusively fired by the Hi-Point pistol. Special Agent Arney also
examined the unfired .45-caliber bullet that was with the Defendant’s belongings at the
hospital. Although she was unable to link the bullet to a particular firearm, she noted that
the bullet had “mechanism marks” indicating that it had previously been loaded into a
gun. Relative to the .38-caliber bullet recovered during the victim’s autopsy, Special
Agent Arney determined that it was fired by a revolver.
Special Agent Arney also conducted the muzzle-to-garment testing in this case.
The Defendant’s shirt reflected one hole that was consistent with a “contact firearm
discharge” where the muzzle of the gun touched the shirt. A second hole was compared
with the victim’s Glock pistol; the Glock would have had to be fired from between three
and twenty-four inches away to create the hole.
The victim’s jacket reflected a contact firearm discharge in the left upper chest
area; other holes in the left sleeve did not reflect gunpowder residue. A tear in the jacket
hood contained lead residue and was consistent with “the passage of a projectile.” A hole
in the right chest area of the jacket was consistent with a bullet hole. Two holes in the
jacket pocket were “consistent with the firearm being inside the jacket pocket when it
was fired.” An area of the jacket’s lining was also melted consistently with a firearm’s
being discharged while adjacent to the fabric, but the bullet did not penetrate the jacket.
On cross-examination, Special Agent Arney testified that Glock .40-caliber guns
were common; she acknowledged that other brands of firearms used polygonal rifling,
but she maintained that the test-fired bullets were “very close” to the ones she examined.
She stated that she only used the Glock test patterns when examining the Defendant’s
shirt because she was informed that a .40-caliber weapon was involved in his wound.
Special Agent Arney matched the .45-caliber Hi Point pistol from Mr. Jackson to the
-19-
cartridge casings in the Defendant’s case using a database of ballistics images. She stated
that it was possible for the shot fired through the victim’s jacket pocket to have caused
the muzzle contact burns on the Defendant’s shirt, although Special Agent Arney would
need to test the respective fabrics to confirm that possibility. She agreed that her
assessment of the Defendant’s shirt did not assume an “intervening” object between the
shirt and the gun’s muzzle. She also agreed that she did not know how many bullets were
originally loaded into the Glock or who possessed the gun.
After the Defendant again renewed his objection to the gang-related testimony and
was overruled, Investigator Penney testified as an expert in gang intelligence regarding
the CPD’s method of gathering and recording information about gangs and gang
members. Investigator Penney confirmed that the Defendant was a validated gang
member. The trial court instructed the jury that if it found that the Defendant was a gang
member at the time of the victim’s murder, it was only to be considered to complete the
story of the crime and to prove identity.
Investigator Penney continued to testify that the Defendant, Mr. Duncan, and Mr.
Jackson were all members of the Gangster Disciples. Investigator Penney identified a
photograph of the Defendant’s gang tattoo; a photograph of the Defendant, Mr. Duncan,
Mr. Woods, Ladarius Crowder, and an unidentified woman, in which the men made gang
hand signs; and a second photograph of the same group in which the Defendant wore a
six-point star belt buckle. The gang validation forms for the Defendant, Mr. Duncan, and
Mr. Jackson were received as exhibits. Investigator Penney detailed the reasons for
which Mr. Jackson and Mr. Duncan garnered enough points to be validated, including
self-admission of gang membership, tattoos, and association with known gang members.
Investigator Penney stated that Mr. Duncan appeared in a photograph with Mr. Woods, a
known Gangster Disciple, and Roland Reynolds, who was “also previously associated
with a traffic stop.”
While explaining the significance of the hand signs the men in the group
photographs made, Investigator Penney stated that holding up seven and four fingers,
respectively, symbolized the seventh and fourth letters of the alphabet, or “G.D.” He
further explained that holding up three fingers symbolized a “pitchfork,” and he
elaborated as follows:
Pitchforks is a — when you’re talking about gang stuff, a lot of this comes
from the prison system and a lot of it comes from areas in Chicago or
California. In regards to Gangster Disciples, . . . there are gangs that are
rivals to them. You have two nations. You have what’s called Folk
Nation, which Gangster Disciples fall under, and you have what’s called
the People Nation, which a lot of their rivals are in . . . . The pitchforks is
basically a symbolism for Folk Nation. It’s the uprising of nations. A lot
-20-
of times Gangster Disciples will talk about the oppression that they’re
under since it’s the oppressing [sic] that they’re uprising through, their
struggles, so to speak.
Relative to Mr. Duncan, Investigator Penney noted that he was stopped by police
in a car with “Roland Reynolds, who [was] known to be RoRo, who [was] a Gangster
Disciple; Walter Maples; Terrance Palmer; Terrell Townsend. These [were] all well
known, validated Gangster Disciples in Chattanooga.” Investigator Penney stated that
Mr. Duncan also appeared in a photograph with Mr. Woods and Mr. Reynolds.
Relative to the Defendant’s gang validation form, Investigator Penney stated,
[The Defendant] received eight points for gang-related tattoos, one
of which is a 720 on his arm, and a six-point star on his chest. The 720, this
refers to types of ideology. Gangster Disciples have two different types of
ideology. One is called the 360, 360 or 360 degrees of knowledge or 360
degrees of pure knowledge of Gangster Disciple[s]. This is Larry Hoover,
who was one of the originators of Gangster Disciples. This was part of
their, for lack of better terms, during this time period, this was their idea of
“shoot and ask questions later.”
Defense counsel objected to the Investigator Penney’s describing the “history of
the gangs” and the use of the phrase “shoot and ask questions later”; counsel noted that
“we’re going way afar of just identifying [the Defendant] as a member of a gang.” The
trial court responded that Investigator Penney was “testifying about the significance of
what ‘720’ mean[t]” and said, “ I don’t know what it means, I’ve been in the criminal
justice system for [twenty-one] years now, so I’m going to allow him to explain.”
Questioning resumed, but Investigator Penney was not asked to further define “720.”
Relative to the Defendant’s tattoo, Investigator Penney stated that the tattoo depicted “a
six-point star that has incorporated the letters G and D. The six-point star . . . is a sign of
reverence for . . . one of the founding fathers of Gangster Disciples in Chicago.” Counsel
made an objection on the basis of relevance and was overruled. Investigator Penney
continued,
His name . . . [was] David Barksdale, who was one of the founding fathers,
and the Star of David. After he passed away, this was their nod to him, a
show of reverence, so the six-point star is used prolifically with the
Gangster Disciples. As a matter of fact, each point of the star has a specific
meaning. You’ll see it in various different ways in this, in this, for
example, being able to put a G and a D in there to kind of incorporate to
show this is what he is.
-21-
On cross-examination, Investigator Penney acknowledged that “GD” could also
stand for “growth and development.” He stated that he knew of Mr. Crowder through
“contacts with him, observations from Facebook, confidential informants, [and] reports.”
To the best of his knowledge, Mr. Crowder was one of the people in the photographs.
Investigator Penney acknowledged that many young men in the African-American
community were in gangs. When asked to estimate how many Gangster Disciples
members were in Chattanooga, Investigator Penney was uncertain but agreed it was more
than one hundred, not including the “associates” who were not validated as full members.
Investigator Penney agreed that the Gangster Disciples began in Chicago and
stated that there was “no way of knowing” from where the Chattanooga branch
originated. He affirmed that many Gangster Disciples members traveled through town
and that there was no way to ascertain “who all c[ame] through town.” Investigator
Penney stated that not all gang members were violent and agreed that some gang
members were active in community service.
TDOC probation and parole officer Christina Barnes testifed that on the date of
the victim’s murder, Mr. Jackson was incarcerated at West Tennessee State Penitentiary.
Hamilton County Chief Medical Examiner Dr. James Kenneth Metcalf, an expert
in forensic pathology, testified that he performed the victim’s autopsy. The cause of
death was “multiple gunshot wounds to [the] trunk and left arm,” and the manner of death
was homicide. The victim was shot seven times; one bullet was recovered near the
victim’s collarbone, and some bullets had fragmented and reflected multiple exit points.
The shots appeared to have been fired from the victim’s left and at an upward angle.
Dr. Metcalf testified that the victim was shot twice in the back and several times in
the left arm. The wounds stemming from the gunshots to the back were fatal, with the
bullets hitting the victim’s ribs, both lungs, and heart. Dr. Metcalf noted that the damage
to the heart was extensive and that the victim would not have survived under any
conditions.
On cross-examination, Dr. Metcalf testified that it was possible from the angle of
the shots that the shooter stood in the grass and fired upward at the victim; however,
given that shell casings were recovered on the front porch, Dr. Metcalf believed that the
shooter was on the porch but “bent forward or . . . turned sideways more.” He believed
the victim was facing the front door when he was shot. Dr. Metcalf could not determine
the order in which the shots were fired or the distance from which the victim was shot.
The victim’s body did not reflect gunpowder stippling. Dr. Metcalf stated that some of
the entry wounds were toward the front of the victim’s torso. On redirect examination,
Dr. Metcalf agreed that it was possible that the victim was shot in the front of the chest,
-22-
turned and sustained gunshot wounds to his left arm, and was finally shot twice in the
back.
At the close of the State’s proof, the Defendant made a motion for a judgment of
acquittal, arguing that the State had not proven premediation. The Defendant argued that
his presence at the crime scene had not been established by witness or physical evidence;
that a silver car brought the Defendant to the emergency room, not a white one; that the
motive for the victim’s murder and the perpetrator had not been established; that the
manner in which the victim was shot made it unlikely the victim also shot the Defendant
through the vicitim’s pocket at point-blank range; that the Defendant sustained a close-
range wound, whereas the victim’s body did not contain stippling; that Mr. Collier did
not observe the occupants of the white Mitsubishi SUV; that the Defendant did not have a
gun when he arrived at the hospital; that the murder weapon was found three months later
and did not contain the Defendant’s fingerprints; and that only conjecture established that
Mr. Duncan obtained the murder weapon from the Defendant. The Defendant noted that
ballistics testing of the victim’s gun was inconclusive when compared to the bullet taken
from the Defendant.
The Defendant cited Sullivan v. State, 513 S.W.2d 152, 154 (Tenn. Crim. App.
1974), for the proposition that a jury may not base its verdict on “conjecture, guess,
speculation, or mere possibility.” He argued that the State had not shown “any direct or
circumstantial evidence” that the Defendant shot the victim. The Defendant noted that
although Mr. Jackson was in prison on the date of the victim’s murder, the State had not
eliminated as possible perpetrators the other people in the car in which the murder
weapon was recovered. The Defendant argued that no evidence of a plan or intent to
shoot the victim had been presented. The trial court made the following findings:
Certainly, there is evidence that whoever shot [the victim] intended
to kill [the victim] because he was shot seven times. The [c]ourt believes
that the fact that [the victim] was shot seven times is indicative,
circumstantially, of reflection and judgment and premeditation actually.
It’s been said that there is no proof of any premeditation, but the [c]ourt
finds that that’s ample proof when considered in the light most favorable to
the nonmoving party.
It’s also been stated that there’s no proof that . . . [the Defendant]
shot [the victim]. Actually, there is proof that [the victim] was shot with a
.45-caliber firearm, . . . there was evidence that a .45-caliber firearm was
used located on the porch, and that when [the Defendant] was at the
hospital and the police officer responded to the room where [the Defendant]
was being treated, that he was handed a bag of clothing which has been
-23-
attributed to [the Defendant], and along with that bag of clothing was a .45-
caliber bullet that was unspent.
Furthermore, [the Defendant] has, within his body, removed by
Erlanger Hospital, a projectile from a .40-caliber, and I do understand that
the defense established that the markings on the projectile would be
consistent not only with a Glock, but with an H&K, with a Kahr, with
rifles, but it is a .40-caliber and it is a JHP, and that is consistent with what
was located at the crime scene, and it is also consistent with the victim’s
firearm which was fired at the crime scene, a Glock .40-caliber.
And according to Teri Arney, who is a ballistics expert with the TBI,
that bullet that was within [the Defendant’s] body was not only a .40-
caliber, but it also . . . had consistent class characteristics to be linked to a
Glock firearm. And again, that is another piece of circumstantial evidence.
....
Also, there is evidence that the gunshot residue test from [the
Defendant’s] clothes puts him close in proximity to whatever firearm made
that gunshot stippling residue on the clothes, which would be consistent
with him being on the porch. Although the bullet located at Erlanger by the
police officer does not establish that [the Defendant] had a gun in his hand,
and [defense counsel] is correct that there are no prints, that there is no
blood at the scene of [the Defendant’s], nor any prints on the scene of [the
Defendant’s]. It is significant to note that the law says in Tennessee that,
“A defendant is criminally responsible as a party to an offense if the offense
was committed by the defendant’s own conduct or by the conduct of
another for which the defendant is criminally responsible, or by both, and
each party to the offense may be charged with the commission of the
offense.”
So[,] “A defendant can be criminally responsible for an offense
committed by the conduct of another if, acting with the intent to promote or
assist the commission of the offense, the defendant aids or attempts to aid
another person to commit the offense.”
So really, all [the Defendant] has to do is be present and assisting,
and I think the State has shown at least circumstantial evidence of that.
Whether they’ve established that beyond a reasonable doubt is not the
question. The question is whether or not a jury should be able to consider it
. . . . [T]here is circumstantial evidence of two eyewitnesses in the form of
-24-
what was reported in the 911 calls about a light-colored/white SUV, and
one witness even said that it was a Mitsubishi, and the State has presented
proof that the vehicle that arrived at the hospital looked to be like a
Mitsubishi, a 2013.
....
[The Defendant] was dropped off by two other individuals, one of
whom was Deaunte Duncan, a man also charged in this offense. The State
has established that Mr. Duncan and [the Defendant] had a social
association in a group from which also the individual who had the firearm
two months later used to actually kill [the victim], according to Ms. Arney,
that the individual who possessed the firearm two months later also had the
same social affiliation with this gang.
There was actually circumstantial evidence, and there is, to show
that this was a robbery: the fact that [the victim] apparently was [an]
individual who made some income from the sale of pills, the fact that there
was marijuana present and cash present, the fact that his car was such that
most roofers . . . would [not] be able to afford[.]
So it’s indicative that [the victim] had some illegal activity going on
and that would have made him a target, perhaps, for a robbery, although the
State doesn’t have to prove motive.
....
. . . [T]here is sufficient circumstantial evidence, in the [c]ourt’s
opinion, to allow this case to go to the jury and for the jury to determine
[the Defendant’s] culpability, if any.
Thereafter, an issue arose when a juror, who had been crying and visibly upset,
was questioned by the trial court outside of the presence of the other jurors. The court
noted that the juror reported to “Debbie” that she had not slept in two days. The juror
stated that she had “really bad anxiety about all this” and that she “really, like, fear[ed]
for [her] children in the future.” The juror stated, “I don’t feel safe at all.” When asked
whether she had discussed her feelings with the other jurors, she said, “Well, they
obviously can see that.” She stated, though, that she had told one other juror that she was
“having real bad anxiety” and was “scared.” The court did not inquire as to the source of
her fear.
-25-
After the juror was excused, defense counsel noted his concern that the juror was
afraid of potential gang retaliation and that her fear could “contaminate” the rest of the
jury. The court excused the juror and polled the jury individually and out of one
another’s presence regarding each person’s general ability to be impartial. The remaining
jurors all affirmed that they had not discussed the evidence amongst themselves and that
they could impartially decide the case based upon the evidence presented.
The Defendant presented no proof. The jury was instructed on criminal
responsibility and facilitation, as well as several lesser-included offenses. Relative to the
evidence of the Defendant’s gang membership, the jury was instructed as follows:
Evidence of membership in a gang: If from the proof you find that the
[D]efendant was a member of a gang when the crime alleged in the
indictment occurred, you may not consider such evidence to prove his
disposition to commit such a crime as that for which he is on trial. This
evidence may be considered by you for the limited purposes of determining
whether it provides: A, the complete story of the crime; that is, such
evidence may be considered by you where the [D]efendant’s membership
in a gang and the present alleged crime are logically related or connected,
or are part of the same transaction, so that proof of the other tends or is
necessary to prove the one charged, or is necessary for a complete account
thereof; And B, the [D]efendant’s identity; that is, such evidence may be
considered by you if it tends to establish the [D]efendant’s identity in the
case on trial. Such evidence of gang membership, if considered by you for
any purpose, must not be considered for any purpose other than those
specifically stated.
The State’s closing argument was as follows:
[The Defendant] was prepared. He was prepared to confront [the
victim], and he did. And as a result of that confrontation, [the victim] lay
dead on his own front porch, shot seven times.
On May the 5th, 2013, [the Defendant] got in that white Mitsubishi
Endeavor, had a gun, a .45-caliber Hi-Point; got a fellow gang member,
Deaunte Duncan, and another man, and they drove to [the victim’s] house .
. . and they confronted him.
....
Judge told you that premeditation is the exercise of reflection and
judgment. It happened in an instant.
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[The victim] was shot seven times with two different bullets, a .45-
caliber Hi-Point and a .38-caliber revolver. Shot with those weapons that
[The Defendant] and the other men loaded, that they had with them when
they got to [the victim’s house], and they pulled those triggers. Trigger was
pulled seven times . . . . That’s the exercise of reflection and judgment.
Judge also told you that we have to prove identity, that it was [the
Defendant] on that front porch, [the Defendant] that killed [the victim].
What puts [the Defendant] there? The Mitsubishi SUV. You heard
Brandon Collier say that . . . he [saw] a white Mitsubishi SUV fly up
Fairfax. You heard that 911 call tell you that it was a white Mitsubishi
leaving the scene, and then approximately seven minutes later you see that
white SUV on the Erlanger security video. You see it pull up to Erlanger,
you see those two men carrying [the Defendant] into the emergency room,
and then you see that SUV leave.
....
You remember . . . it rained that night. The grass was wet in the
front of the porch.
....
What’s that on [the Defendant’s] jeans? It’s mud. What’s on his shoes?
It’s mud, from the front of [the victim’s] house before he went on that
porch and killed him.
The prosecutor stated that the Defendant had a .45-caliber bullet among his possessions at
the hospital, that .45-caliber bullets and shell casings were present at the crime scene, and
that the .45-caliber Hi-Point pistol was “taken off Gerald Jackson three months later.”
The prosecutor continued, “Those shell casings on that front porch . . . were fired out of
that gun. Gerald Jackson was . . . in prison in West Tennessee but he had that gun
because of [the Defendant], a fellow gang member.” The prosecutor noted Investigator
Penney’s testimony that the Defendant, Mr. Duncan, and Mr. Jackson were “all Gangster
Disciples, all Gangster Disciples in Chattanooga.” The prosecutor further argued that the
bullet taken out of the Defendant in surgery was the same caliber as the victim’s Glock
23 and that the bullet shared the same class characteristics and some individual
characteristics as the test-fired bullets from the gun.
The prosecutor argued that the victim’s wounds were consistent with his trying to
get away from “the man that was shooting him seven times” but “eventually died at the
hands of Sleepy.” The prosecutor concluded that the Defendant should be convicted of
first degree premeditated murder “because he confronted [the victim]. He was prepared
for that confrontation, because he killed [the victim].”
-27-
The Defendant discussed the gang evidence in his closing argument as follows:
They want to go ahead and bring up “gang.” Remember, they . . .
didn’t say, “Oh, it’s Jeremy Reynolds.” He started out with Jeremy
Reynolds, then he went “Sleepy.” Why? Because he wants to use gangs to
scare you, basically scare you into going ahead and convicting him,
because they don’t have any evidence that [the Defendant] did this.
The judge already instructed you as to the law on gangs, I’ll go
ahead and remind you of that a little bit, that the evidence may only be
considered by you for the limited purposes of determining whether it
provides a complete story of the crime.
So basically, it’s just to go ahead and state that, well, the gangs are
some part of the story. Their . . . story is that because he’s a member of the
Gangster Disciples, that obviously, that’s how the gun got to Gerald
Jackson. Now, do they have any proof of this? No. Ladies and gentlemen,
they have no proof of anything.
....
And the State says that, to complete the story, they want you to bring
in the gangs. Sleepy, remember, he pointed at him and said, “Sleepy,” to
scare you, to basically say, “Oh, it’s gangs.” But they also want to say,
“Well, there are other people involved in this.” Where are they? Where is
[Mr.] Duncan? . . . . Shoot, where are all the Gangster Disciples since they
all seem to be involved with it? Just fill up that back row with all the
Gangster Disciples, let’s put them all on trial for this if they’re involved.
Why? Because they have no proof of it.
During the State’s rebuttal, the prosecutor stated the following:
[The Defendant] and his buddies don’t get to decide who lives and
who dies. [Defense counsel] and the defense has [sic] made a lot of
representations about what the proof is. They have been wrong about a lot
of it. [The Defendant] was right about one thing through the course of this
trial. I’m showing you Exhibit 146.6 He was exactly right that all eyes
have been on Sleepy this trial. This trial, you guys have had an
opportunity to see exactly who [the Defendant] is, exactly how he behaves,
and exactly what he does, and now you all have an awesome opportunity.
6
Exhibit 146 referred to the photograph of the Defendant’s gang tattoo.
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You get to go back in that jury room, look at the law, look at the evidence,
think about the actual testimony, and hold him responsible for his actions
on the night of May the 5th of 2013.
You get to go back in that jury room, look at the evidence, and
decide that you won’t stand for it. You won’t stand for his guns, you
won’t stand for his violence, for his shootings, for his gangs. You won’t
stand for it, and you’ll hold him responsible for it.
....
You all have the opportunity to do it. And how is it [you] do that?
You don’t have to confront [the Defendant] with a .45-caliber weapon.
You don’t need a .40 or a .38. You don’t have to sneak up on his porch
late in the evening with one of your partners with you. You get to go back
in that jury room, and all it takes to show him that you won’t stand for it
and to hold him responsible for his actions is one check, one check at the
top box of the verdict form[.]
It doesn’t happen if you find him guilty of some lesser included
offense, if you let him skate out of here to get back to his buddies. It takes
one check.
I ask you all to go back in that jury room, look at the evidence,
consider the testimony, sit down at that table with the jury verdict, with the
jury form, and stop it. You stop it today. You tell [the Defendant] that
he’s responsible for his actions on the night of May the 5th, and find him
guilty of first degree murder.
After eight and one-half hours of deliberations, the jury found the Defendant
guilty of premeditated first-degree murder, and the trial court imposed a statutory life
sentence.
ANALYSIS
On appeal, the Defendant raises the following issues: (1) whether the evidence
was sufficient to support his conviction; (2) whether the admission of the Defendant’s
gang membership and the “prior bad acts” of Mr. Jackson violated Tennessee Rules of
Evidence 403 and 404(b)7; (3) whether the trial court erred by “not allowing” the
Defendant to independently test the victim’s GSR kit; (4) whether the trial court erred by
7
For efficiency, we have consolidated several of the Defendant’s issues into this one overarching
complaint.
-29-
“not compelling the State to produce the photograph referred to in the gang report”; and
(5) cumulative error. We will address each in turn.
I. Sufficiency of the Evidence
The Defendant contends that the evidence adduced at trial was insufficient to
establish premeditation, identity, or criminal responsibility, arguing that no direct
evidence established his presence at the crime scene. The State asserts that the evidence
was sufficient, arguing that the bullet caliber and brand in the victim’s gun matched the
bullet recovered from the Defendant at the hospital, that the .45-caliber Hi-Point pistol
recovered from “the [D]efendant’s fellow gang member” was the gun that was used to
shoot the victim, and that “medical personnel found a live .45-caliber round in the
[D]efendant’s possession.” Relative to premeditation, the State argues that the victim
was shot seven times, including one contact wound to the chest, and that “[w]hen the
victim attempted to flee to the safety of his home, the assailants shot him six more
times[.]”
An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.
The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
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State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).
First degree premeditated murder is defined as “[a] premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). A person acts intentionally
“when it is the person’s conscious objective or desire to engage in the conduct or cause
the result.” Tenn. Code Ann. § 39-11-302(a).
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 pre-exist in the
mind of the accused for any definite period of time.
Tenn. Code Ann. § 39-13-202(d) (internal quotations omitted).
The element of premeditation only requires the defendant to think “about a
proposed killing before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d
530, 541 (Tenn. 1992). The presence of premeditation is a question for the jury and may
be established by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d
at 660. Our supreme court has held that factors determining the existence of
premeditation include, but are not limited to, the following: 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, destruction or secretion of evidence of the
killing, and calmness immediately after the killing. See State v. Davidson, 121 S.W.3d
600, 614 (Tenn. 2003); Bland, 958 S.W.2d at 660. Additional factors cited by this court
from which a jury may infer premeditation include the lack of provocation by the victim
and the defendant’s failure to render aid to the victim. See State v. Lewis, 36 S.W.3d 88,
96 (Tenn. Crim. App. 2000). “Tennessee cases have long recognized that premeditation
may be proved by circumstantial evidence” because “premeditation involves the
defendant’s state of mind, concerning which there is often no direct evidence.”
Davidson, 121 S.W.3d at 614-15. “Although a jury may not engage in speculation, it
may infer premeditation from the manner and circumstances of the killing.” State v.
Jackson, 173 S.W.3d 401, 408 (Tenn. 2005).
In the light most favorable to the State, the Defendant’s identity and the intentional
nature of the victim’s murder were circumstantially proven. The victim was shot seven
times on his front porch; the victim’s .40-caliber pistol, which was fired from inside his
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jacket pocket, was generally consistent with the .40-caliber bullet recovered from the
Defendant in surgery. The bullets from the victim’s gun were also the same brand as the
bullet recovered from the Defendant. The bullet recovered from the victim at autopsy
was .38-caliber, and the shell casings on the porch were .45-caliber, indicating the use of
two guns. Although the chain of custody for the .45-caliber unfired bullet in the
Defendant’s hospital room was incomplete, it was located on a table at the Defendant’s
bedside next to a bag of his clothing in a room in which the Defendant was the only
patient. The victim’s neighbor saw a white SUV leaving the scene, and Mr. Collins saw
a white Mitsubishi SUV driving recklessly along a route that was consistent with one of
the primary routes to Erlanger hospital. Seven to eight minutes after the first 9-1-1 call,
the hospital surveillance recording showed the Defendant’s being dropped off by Mr.
Duncan and another man. The route from the victim’s house to the hospital took about
ten minutes under normal conditions. Moreover, the light-colored SUV in which the
Defendant arrived at the hospital was similar in appearance to the speeding Mitsubishi
Endeavor described by Mr. Collins.
Relative to premeditation, however, we conclude that the evidence was
insufficient. The fact that the victim suffered multiple wounds is not enough, standing
alone, to prove premeditation. Brown, 836 S.W.2d at 543. Notably, the State’s appellate
brief does not cite any factors other than the victim’s injuries to support its argument
regarding premeditation.8 Although the State argued at trial that the Defendant
“prepared” to go to the victim’s house, there was no evidence presented to suggest that
the murder was planned. The Defendant’s possibly being armed is not proof that he
armed himself in preparation for this confrontation. The victim was also armed and
apparently shot the Defendant during the altercation. Although the Defendant failed to
render aid to the victim, he was himself wounded and had to be carried into the
emergency room by his compatriots; it is unclear whether he was capable of rendering aid
or summoning help at the crime scene. We acknowledge that the State is not required to
prove motive; however, the circumstantial evidence in this case fell far short of proving
premeditation beyond a reasonable doubt.
We note that although the trial court found during the motion for a judgment of
acquittal that an attempted robbery had been circumstantially proven as a possible
motivation for the murder, the evidence belied this theory. The victim was left with $590
cash, a gun, and a bag of pills; his new car, which contained more drugs, was not
disturbed. In addition, even if an attempted robbery had been proven, it would have
8
We note that at oral argument, the State cited the Defendant’s failure to aid the wounded victim as a
factor supporting premeditation. However, the prosecutor at trial did not argue this factor, citing only that
the shooting was “planned,” that the victim suffered seven gunshot wounds, and that the victim was
attempting to flee. The State may not rely on different arguments on appeal than were presented at trial.
-32-
supported a conviction for felony murder, not premeditated murder; however, the
Defendant was not indicted for felony murder.
Because the evidence was insufficient relative to premeditation, the Defendant’s
conviction for premeditated first degree murder must be reversed. However, because the
Defendant’s involvement in the murder was circumstantially proven and criminal
responsibility was charged to the jury,9 the evidence was sufficient to support a
conviction for second degree murder.
Generally, this court would order entry of an amended judgment on the lesser-
included offense. In this case, because we conclude that some gang-related evidence was
unfairly prejudicial and its admission was not harmless, we remand for a new trial on one
count of second degree murder, to be conducted consistently with our instructions as
elaborated below.
II. Gang Evidence
The Defendant contends that the trial court erred by admitting evidence about his
gang membership, including the gang validation form and accompanying photographs.
In a related issue, he argues that the trial court erred by admitting evidence of Mr.
Jackson’s10 unspecified “prior bad acts.” In the amended motion for a new trial, the
Defendant discussed Mr. Jackson’s gang validation form as well as the evidence of the
robberies in which Mr. Jackson was allegedly involved. The State responds that the
evidence was properly admitted to “show identity and complete the story” and that the
trial court’s limiting instructions were sufficient to prevent the jury from improperly
considering the evidence. At oral argument, the State asserted that the evidence at trial
was “pretty limited” in comparison to that presented at the pretrial hearing, consisting
only of the gang validation report and photographs of the Defendant’s tattoo and two
groups of people with the Defendant.
Tennessee Rule of Evidence 401 defines “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Generally, relevant evidence is admissible, while irrelevant evidence is
inadmissible. Tenn. R. Evid. 402. However, relevant evidence may be excluded if its
probative value is “substantially outweighed by the danger of unfair prejudice.” Tenn. R.
Evid. 403. The admissibility of evidence pursuant to these rules “is a matter within the
trial court’s discretion and will not be reversed on appeal absent an abuse of that
9
We note that although the State did not argue at trial that the Defendant was criminally responsible for
the murder, the Defendant did not object to the jury’s being instructed on criminal responsibility.
10
The Defendant does not contest the admissibility of the evidence of Mr. Duncan’s gang membership.
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discretion.” State v. Biggs, 218 S.W.3d 643, 667 (Tenn. Crim. App. 2006) (citing State
v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997)).
a. The Defendant’s Gang Membership
The admission of evidence of other bad acts by the Defendant is governed by
Tennessee Rule of Evidence 404(b). Generally speaking, “[e]vidence of a person’s
character or trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion.” Tenn. R. Evid. 404(a). This court has
concluded on numerous occasions that evidence of gang membership is character
evidence. See, e.g., State v. Lavelle Mangrum, W2013-00853-CCA-R3-CD, 2014 WL
3744600, at *7-8 (Tenn. Crim. App. July 28, 2014) (concluding that pursuant to Rule
404(b), prejudicial nature of gang evidence outweighed probative value); State v. Ronald
Eugene Brewer, Jr., No. E2010-01147-CCA-R3-CD, 2011 WL 2732566, at *17 (Tenn.
Crim. App. July 14, 2011) (concluding that gang evidence was properly admitted under
Rule 404(b) where gang rivalry was motive for killing). To admit such evidence, the rule
specifies four prerequisites:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record
the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear
and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.
Id. When, as here, the trial court substantially complies with the procedural requirements
of Rule 404(b), this court will overturn the trial court’s ruling only when there has been
an abuse of discretion. See State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005).
The rationale underlying the general rule is that admission of such evidence carries
with it the inherent risk of the jury’s convicting the defendant of a crime based upon his
bad character or propensity to commit a crime, rather than upon the strength of the
evidence. Thacker, 164 S.W.3d at 239. Despite Rule 404(b)’s general proscription on
propensity evidence, “Tennessee recognizes three instances in which evidence of
uncharged crimes may be admissible: (1) to prove identity (including motive and
common scheme or plan); (2) to prove intent; and (3) to rebut a claim of mistake or
accident if asserted as a defense.” State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996)
(citations omitted).
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When the evidence at issue bears on identity,
the probative value of the evidence of other crimes depends upon the extent
to which it raises an inference that the perpetrator of the prior offenses was
the perpetrator of the offense at issue. Bunch v. State, 605 S.W.2d at 230
(quoting United States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978)). An
inference of identity arises when the elements of the prior offense and the
charged offense are sufficiently distinctive that one can conclude that the
person who committed the former also committed the latter. Id. However,
it is not required that the other crime be identical in every detail to the
offense on trial. Id. at 231. The evidence must support the inference that
the defendant, who committed the earlier acts, is the same person who
committed the offense on trial. Id.
State v. Electroplating, Inc., 990 S.W.2d 211, 224 (Tenn. Crim. App. 1998).
Evidence of other acts may be admitted to provide the jury with necessary
contextual background. State v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000); see also
NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 4.04[13] (5th ed.
2005) (evidence admissible to tell the “complete story”). When seeking to introduce
prior act evidence in order to complete the story, the trial court must make the following
findings:
(1) the absence of the evidence would create a chronological or conceptual
void in the state’s presentation of its case; (2) the void created would likely
result in significant jury confusion as to the material issues or evidence in
the case; and (3) the probative value of the evidence is not outweighed by
the danger of unfair prejudice.
Id. at 272.11
The Defendant complains of the inclusion of his gang validation form and the
group photographs in which other individuals made gang hand signs. The Defendant
does not contest the inclusion of the photograph of his tattoo. Likewise, the Defendant’s
brief includes a block quote regarding expert witness testimony and a portion of the
testimony recounting Investigator Penney’s experience and training, although he does not
explicitly raise any issue regarding the propriety of Investigator Penney’s testimony or
his expert qualifications. The Defendant’s motion for a new trial specifically objected to
11
As stated at oral argument, this court has noted with concern an increase in cases in which the State
sought to admit, and the trial court allowed, otherwise irrelevant evidence under the auspices of
“completing the story.” We remind trial courts and prosecutors that contextual evidence of this nature
must be approached with caution, lest the exceptions to Rule 404(b) swallow the rule.
-35-
the three gang-related photographs exhibited at trial and the “gang report,” as well as
general “evidence that the Defendant was a gang member.”
We conclude, first, that the trial court abused its discretion by finding that the
Defendant’s gang membership was relevant to prove his identity as the person who killed
the victim or who was criminally responsible for the victim’s death. Although the
Defendant’s gang membership was relevant to his identity as a person who was
associated with Mr. Jackson and, by extension, the .45-caliber Hi Point pistol, this aspect
of identity bears on completing the story. In the context of identity, Rule 404(b) evidence
is typically offered to prove the similarity between a prior act and the instant crime. See,
e.g., Electroplating, 990 S.W.2d at 224. There was no indication that the killing was a
signature crime committed pursuant to a modus operandi. The fact that the Defendant
was a gang member was irrelevant to whether he was present at the crime scene, whether
he fired one of the shots that killed the victim, or whether he was criminally responsible
for a third party who did shoot the victim.
The evidence at the pretrial hearing did not support the trial court’s finding that the
Defendant’s gang membership was relevant to the Defendant’s identity. However, the
evidence only had to be relevant for one non-propensity purpose, and it is undisputed by
the parties that the Defendant’s gang membership was relevant to prove a connection
between the Defendant, Mr. Duncan, and Mr. Jackson, thereby establishing a possible
connection between the Defendant and the .45-caliber Hi-Point pistol.
We note that during the pretrial hearing, the trial court commented at some length
that relative to the probative value of the evidence, it was “influenced” by the
Defendant’s posting on social media a photograph of his tattoo and posing in photographs
with people making gang hand signs. The court opined that when a gang member
publicized his status in this way, he should not be able to “duck” that status in court. This
was an improper consideration when weighing the probative value of the evidence.
Although the abuse of discretion standard gives the trial court wide latitude to
admit evidence of prior bad acts, including gang membership, we are troubled by the
breadth of the gang evidence presented in this case, as well as the manner in which the
evidence was ultimately argued. Contrary to the State’s characterization at oral
argument, Investigator Penney’s testimony at trial was extensive and not “pretty limited”
in comparison to his pretrial testimony. We acknowledge that the Defendant’s gang rank
and the power structure of the gang were not discussed, but the testimony went far
beyond the content of the Defendant’s gang validation form and identifying him in the
photographs.
Investigator Penney offered information about the origins of the Gangster
Disciples in Chicago, including rivalries and violence between rival gangs; discussed
-36-
leaders of the gang and the “360” branch of the Gangster Disciples, to which it did not
appear the Defendant belonged, and which had a philosophy of “shoot and ask questions
later”; mentioned that the Defendant’s tattoo contained “720,” but did not explain the
concept further; described the significance of the gang hand symbols others made in the
group photographs, specifically the “pitchfork” and the numbers seven and four, much of
which originated in prison; detailed the reasons for which the Defendant was validated as
a gang member; and named several people unrelated to the Defendant’s case who were
also gang members. Although this information12 was reasonably considered by the trial
court in the 404(b) pretrial hearing to establish the Defendant’s gang membership, we
question the relevance of much of this information at trial. As in many cases, the
information here could have been better tailored to minimize the danger that the jury
would be distracted and confused by extraneous information.
We note that the Defendant did not lodge a specific objection to the breadth of
Investigator Penney’s testimony at trial13 or in the motion for a new trial. Similarly, the
State does not argue that some pieces of evidence are admissible even if others are not.
However, the record is sufficient for us to consider the appropriate scope of the
admissible gang evidence in this case.
We conclude that the general fact of the Defendant’s gang membership, the gang
validation form, and the photographs of the Defendant with other people making gang
hand signs, as supported by Investigator Penney’s testimony, were properly admitted.
The probative value of the Defendant’s connection to Mr. Jackson and the .45-caliber Hi
Point pistol was heightened by Defendant’s possessing a .45-caliber bullet at the hospital,
which was of the same type as the shell casings on the victim’s front porch and reflected
markings to indicate that it had previously been loaded into a firearm; this was
circumstantial evidence that the Defendant possessed a .45-caliber firearm on the night in
question. We cannot say that the trial court abused its discretion by finding that the
probative value of this evidence outweighed the risk of unfair prejudice. See State v.
Montez James, No. W2014-01213-CCA-R3-CD, 2012 WL 4340658, at *12 (Tenn. Crim.
App. Sept. 24, 2012) (concluding that probative value of brief gang evidence outweighed
danger of unfair prejudice when it proved the relationship between the defendant and
codefendants; the defendant was the getaway driver after a robbery). The court properly
gave multiple limiting instructions to mitigate the prejudicial effect of the gang evidence.
12
Although the information regarding “360” was incomplete at trial, it was apparent that Investigator
Penney intended to differentiate it from “720.” The “360” branch of the Gangster Disciples was not
discussed at the pretrial hearing; rather, at the pretrial hearing, Investigator Penney indicated that the 720
branch was the “growth and development” branch of the Gangster Disciples and that some members of
the 720 branch lived by ideals of community betterment and did not commit crimes.
13
The Defendant’s objection during Investigator Penney’s trial testimony dealt with the prejudicial nature
of the phrase “shoot and ask questions later,” not the propriety of the general gang information.
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However, we note that prejudicial effect of the extensive background information
about the Gangster Disciples and the origins of various gang signs outweighed its
nonexistent probative value. This evidence was of questionable relevance, and in light of
the circumstantial evidence and lack of evidence regarding the circumstances of the
shooting, the risk of unfair prejudice was very high. This testimony should have been
excluded.
In addition, the manner in which the gang evidence was argued exacerbated its
prejudicial nature. The State did not delve deeply into the Defendant’s gang membership
in its initial closing argument; however, the prosecutor referred to the Defendant by his
gang nickname, “Sleepy.” Defense counsel, in response, discussed that the State was
attempting to “scare” the jury with talk of gangs. In rebuttal, the prosecutor then used the
Defendant’s gang membership to urge the jury to make a statement with its verdict that it
would not tolerate the Defendant’s “violence, his shooting, his gangs.” The prosecutor
further entreated the jury to “[s]top it now.”
Although no objection was raised by the Defendant, the prosecutor’s comments in
rebuttal were improper. We do not believe that the comments, in and of themselves,
constitute improper prosecutorial argument of such a degree as to require plain error
relief; nevertheless, we think that the comments reflect a general undermining of the trial
court’s multiple limiting instructions and an intent to utilize the gang evidence for
impermissible purposes. The last argument the jury heard before deliberating embodied
the unfair prejudice that Rule 404(b) seeks to prohibit—the implication that the
Defendant was a violent individual and that the jury had a responsibility to make a
statement with its verdict regarding the community’s intolerance for gang activity.
Generally, the jury is presumed to have followed any limiting instructions issued
by the trial court. Gilliland, 22 S.W.3d at 273. To overcome this presumption, the
defendant must show by clear and convincing evidence that the jury failed
to follow the trial court’s instructions. State v. Harbison, 539 S.W.3d 149, 163 (Tenn.
2018).
In the instant case, we are presented with a unique situation in which the jury
convicted the Defendant of first degree premeditated murder in spite of the notable lack
of evidence regarding premeditation. The State consistently argued that the Defendant
himself was the shooter, although an instruction was issued regarding criminal
responsibility, and asserted that the Defendant “prepared” for the killing when no
evidence indicated a plan to shoot the victim. In spite of this dearth of evidence, the jury
convicted the Defendant after hearing extensive testimony about his gang membership, as
well as improper rebuttal argument by the State. We conclude that the Defendant has
proven by clear and convincing evidence that the jury did not follow the trial court’s
limiting instructions because the jury issued a verdict contrary to the law and evidence.
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Likewise, as a result of the jury’s verdict, we cannot say that the improper admission of
the extraneous background gang evidence was harmless beyond a reasonable doubt.
Because the Defendant has demonstrated that the jury did not follow the trial
court’s instructions and that he was unfairly prejudiced by some of the gang evidence in
this case, we must remand the Defendant’s case for a new trial in which the evidence
establishing the Defendant’s gang membership is limited. As stated above, the new trial
will be on the charge of second degree murder. We discuss below the admissibility of
evidence establishing Mr. Jackson’s gang membership.
b. Bad Act Evidence — Mr. Jackson
As stated above, relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.
The gang membership of Mr. Jackson, as established by Investigator Penney’s testimony
and the gang validation forms, was relevant to circumstantially prove the connection
between the Defendant and the murder weapon. It was also relevant to prevent jury
confusion regarding why Mr. Jackson, who was incarcerated during the victim’s murder,
came to possess the murder weapon. Unlike the testimony regarding the Defendant’s
gang membership, the testimony relative to Mr. Jackson’s gang membership was brief.
Relative to completing the story, the probative value of connecting the Defendant and
Mr. Jackson through their shared Gangster Disciples membership was fairly high and
circumstantially established the Defendant’s possessing the .45-caliber Hi Point pistol on
the night of the murder; we cannot say that the trial court abused its discretion in finding
that the probative value was not substantially outweighed by the danger of unfair
prejudice.
However, Officer Early’s testimony regarding the two robberies in which, it was
implied, Mr. Jackson participated and used the .45-caliber pistol, was not properly
admitted. The fact that these robberies occurred, let alone any details surrounding them,
was wholly irrelevant to the Defendant’s case and should have been excluded. Likewise,
the testimony that the gun had been used in two robberies created an implication that the
pistol was habitually used by gang members to commit crimes, making the danger of
unfair prejudice extremely high. The trial court abused its discretion by allowing this
testimony. On retrial, Officer Early should not be permitted to testify regarding other
crimes in which the .45-caliber pistol was potentially used. Likewise, although it is not
specifically raised as an issue, we note that the repeated mention of the names of several
other gang members who were not connected to this case was irrelevant and improperly
admitted.
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As discussed above, testimony about the history of the Gangster Disciples and the
origins of the symbols represented by gang hand signs is of questionable relevance to the
Defendant’s case as it relates to third parties like Mr. Duncan and Mr. Jackson. The gang
validation form and Investigator Penney’s testimony regarding his knowledge of Mr.
Jackson as a gang member was sufficient to prove his gang membership without delving
into more specifics. Lengthy discussion of gang history heightens the risk of distracting
the jury and the risk of unfair prejudice. Although we do not wish to cause a conceptual
void by concluding all such evidence is per se inadmissible here, we strongly caution the
trial court against its inclusion unless strictly necessary, and even then to limit the amount
of information presented.
In sum, the admissibility of the gang evidence as it pertains to third parties is as
follows: On remand, the gang membership of Mr. Duncan14 and Mr. Jackson will be
admissible as proven by Investigator Penney’s testimony and the gang validation forms.
The proof should be limited to that necessary to establish the fact of their respective gang
membership. Any testimony regarding the history of the Gangster Disciples and the
origins of gang hand signs should be excluded. Finally, any evidence of other crimes
committed with the .45-caliber pistol shall not be admitted.
III. Victim’s GSR Kit
The Defendant contends that the trial court erred by “not allowing” the Defendant
to conduct independent testing of the victim’s GSR kit. The body of the Defendant’s
argument on this issue consists of the following: The Defendant recounts, without
citation to the trial transcript, the testimony regarding the TBI’s policy of not testing
victim GSR kits. He then argues that “the GSR Kit should have been tested” and
characterizes the lack of testing as a Brady issue. The Defendant continues to state the
requirements for establishing a Brady violation; he asserts without further elaboration
that the GSR kit “would have established” that the victim did not shoot a gun and that
because the State “refused to” test the kit, the Defendant should receive a new trial. The
State responds that this issue has been waived for failure to adequately brief the issue,
prepare an adequate record, and raise the issue pretrial or at the motion for a new trial.
We agree with the State. Although the record reflects that the Defendant filed a
general pretrial motion demanding exculpatory evidence, the record does not include any
motion requesting independent testing of the victim’s GSR kit or alleging that the State
had not provided it to the Defendant upon request. Likewise, the record does not contain
a ruling from the trial court on any such motion; moreover, no discussions of a motion
14
The Defendant has not raised the admissibility of Mr. Duncan’s gang membership, and for the same
reasons discussed above relative to Mr. Jackson, we do not discern plain error in its admission.
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are present in the pretrial hearing transcripts in the record. It is the duty of the appellant
“to prepare a record which conveys a fair, accurate and complete account of what
transpired with respect to the issues that form the basis of the appeal.” State v. Taylor,
992 S.W.2d 941, 944 (Tenn. 1999). In the absence of an adequate record on appeal, we
“must presume that the trial court’s rulings were supported by sufficient evidence.” State
v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). In this case, the Defendant has
not even provided this court a ruling by the trial court that we may examine.
Moreover, a Brady issue was not raised during trial, and it was not included in the
motion for a new trial. See Tenn. R. App. P. 3(e) (providing that no issue presented for
review “shall be predicated upon error . . . unless the same was specifically stated in a
motion for a new trial; otherwise such issues will be treated as waived.”); Tenn. R. App.
P. 36(a) (stating that “[n]othing in this rule shall be construed as requiring relief to be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error”). Finally, the
Defendant’s briefing of this issue does not include appropriate citations to the record or
allege facts other than that the State did not test the kit. See Tenn. R. App. P. 27(a)(7)
(providing in relevant part that a brief shall contain “[a]n argument . . . setting forth the
contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record . . . relied on.”); Tenn. Ct. Crim. App.
R. 10(b) (“Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.”).15 This issue
has been waived.
Further, the Defendant is not entitled to plain error relief because the record does
not clearly establish what occurred in the trial court, and the Defendant has not established
that a clear and unequivocal rule of law was breached or that his substantial rights were
affected. We note that the State is not required to scientifically test any piece of evidence;
however, the failure to test material evidence may be brought out during cross-
examination. See State v. Greg Lamont Turner, No. 01C01-9503-CR-00078, 1995 WL
504801, at *3 (Tenn. Crim. App. Aug. 25, 1995); State v. Donald Terry Moore, No.
15
Appellate counsel was found in willful contempt of this court for unacceptable delay in filing his brief
and for failing to comply with this court’s order to provide documentation within thirty days that he had
consulted with a practice coach after he filed a grossly inadequate brief. In spite of all this, counsel’s
brief is woefully lacking, both in content and in form. Some sections of the brief lack citations to legal
authorities, the trial transcript, or both; others state one issue in the section title but raise a different issue
in the body of the argument; others do not clearly state a request for relief; typographical and formatting
errors abound; and a large portion of the brief appears to have been copied and pasted from online legal
research documents. However, the procedural and evidentiary infirmities in this case are sufficiently
egregious and clear from the record that we are able to address them, notwithstanding counsel’s
unwillingness or inability to draft an adequate appellate brief.
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01C01-9702-CR-00061, 1998 WL 209046, at *9 (Tenn. Crim. App. Apr. 9, 1998), aff’d, 6
S.W.3d 235 (Tenn. 1999). Moreover, we note Agent Arney’s testimony that the victim’s
jacket pocket contained gunshot residue and damage indicating that the victim fired his
gun while it was inside the pocket. Ms. Washington and Ms. Stokes also testified that
they moved a gun from beside the victim’s body and hid it in the house, and the .40-
caliber pistol contained blood spatter from the victim. The victim’s having fired a gun
was amply proven in this case. The Defendant is not entitled to relief on this basis.
IV. Photograph of Jeremy Clark
The Defendant argues that the trial court erred by failing to compel the State to
produce a photograph referenced in the Defendant’s gang validation report. The
Defendant also characterizes this issue as the withholding of exculpatory evidence,
arguing that the trial court ordered the State to provide the photograph, that the State did
not provide it, and that “[e]ither the picture did not exist, or the picture was exculpatory.”
The record reflects that before Investigator Penney’s trial testimony, the
Defendant requested that a line of his gang validation form be redacted. In the section of
the report identifying the items for which the Defendant was assigned points, a notation
indicated that the Defendant appeared in a photograph with Jeremy Clark and Christian
Woods, who were both Gangster Disciples. The State did not seek to introduce the
referenced photograph into evidence, and defense counsel objected to the inclusion of
additional named gang members who would not appear in the exhibited photographs.
The trial court found that the notation was admissible and that “it matter[ed] not that
Jeremy Clark [was] not in a photograph that the State” sought to introduce.
Upon questioning by the court, counsel stated that he had not had the opportunity
to view the photograph with Mr. Clark. The court ordered the State to show counsel the
photograph, but it noted that it would not delay the trial and that counsel had one week
between pretrial hearings and the trial in which to obtain the photograph. The prosecutor
conveyed that Investigator Penney had the photograph in his file; the court instructed the
prosecutor to have Investigator Penney look for the photograph, and the court told
counsel that he could question Investigator Penney regarding the photograph on cross-
examination. The court noted that if counsel had not seen the photograph before cross-
examination, a recess would be held to give counsel time to review it.
The record does not reflect that a recess was held before cross-examination, and
counsel did not ask Investigator Penney about the photograph or inform the trial court
that he had not received the photograph. In the absence of a contemporaneous objection,
the Defendant has waived this issue. See Tenn. R. App. P. 36(a).
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In any event, the Defendant has not demonstrated that a Brady violation occurred;
the photograph at issue is not present in the record, and other than the bald assertion that
the photograph either “[does] not exist, or . . . [is] exculpatory,” the Defendant has not
shown how the photograph is material or even favorable to his case. We note that the
Defendant’s argument in this regard contradicts his complaint that the other photographs
of him with Gangster Disciples members were unfairly prejudicial. The Defendant is not
entitled to relief on this basis.
V. Cumulative Error
The Defendant contends that the cumulative effect of the alleged errors in this case
deprived him of a fair trial. The State responds that no errors occurred. Because we have
concluded above that the Defendant is entitled to a new trial based upon the unfairly
prejudicial nature of the gang evidence, we need not further address the issue of
cumulative error.
CONCLUSION
Because the evidence was insufficient to support the Defendant’s conviction for
first degree premeditated murder, the judgment of the trial court is reversed. Moreover,
because the evidence of the Defendant’s gang membership was unfairly prejudicial, we
remand his case for a new trial on the charge of second degree murder. The trial court is
instructed to bar admission of evidence of the history of the Gangster Disciples and the
origins of gang hand signs, as well as any evidence of other crimes committed with the
.45-caliber pistol.
______________________________
D. KELLY THOMAS, JR., JUDGE
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